Madras High Court
S.Rajkumar vs State Of Tamil Nadu on 22 November, 2023
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
W.A.No.2317 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.11.2023
CORAM :
THE HONOURABLE MR. JUSTICE R.SURESH KUMAR
and
THE HONOURABLE MR.JUSTICE G.ARUL MURUGAN
W.A.No.2317 of 2012
S.Rajkumar ... Appellant
-Vs-
1.State of Tamil Nadu
represented by the Secretary to Government
Personnel and Administrative Reforms Department
Secretariat, Chennai 600 009.
2.The Director of School Education
DPI Complex, College Road
Chennai 600 006. ... Respondents
Prayer : Writ Appeal under Clause 15 of the Letters Patent against the order in
W.P.No.20395 of 2012 dated 01.08.2012.
For Appellant : Mr.M.Radhakrishnan
For Respondents : Mr.Vadivelu Deenadayalan
Additional Government Pleader
JUDGMENT
(Judgment of the Court was delivered by R.SURESH KUMAR, J.)
This writ appeal has been directed against the order passed by the writ Court
dated 01.08.2012 made in W.P.No.20395 of 2012. Before the writ Court, the
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appellant filed the said writ petition praying for the issuance of a Writ of
Certiorarified Mandamus to call for the records in G.O.Ms.No.107, Personnel and
Administrative Reforms Department dated 18.08.2009 and to quash the same and to
consequently direct the second respondent in the said writ petition to treat the
petitioner eligible to be considered for the post of Graduate Assistant (English) as on
01.01.2012 in the counselling scheduled to be held on 30.07.2012.
2. The said writ petition came to be decided by the writ Court on 01.08.2012,
where the learned Judge has stated the reason that, with regard to the said G.O.,
ie., G.O.Ms.No.107 Personnel and Administrative Reforms Department dated
18.08.2009, which was under challenge, it was the subject matter before the
Division Bench in W.P.No.18729 of 2010 and the said Division Bench has upheld the
said G.O., in toto by a judgment dated 10.02.2011. Therefore, the learned Judge
was of the view that in view of the said Division Bench judgment, the prayer sought
for in the said writ petition cannot be entertained. Accordingly, he was inclined to
dismiss the writ petition, as against which the present writ appeal has been filed.
3. Assailing the said judgment of the writ court, Mr.M.Radhakrishnan learned
counsel appearing for the appellant would contend that the reasons cited by the
learned Judge as if that the validity of G.O.Ms.No.107 Personnel and Administrative
Reforms Department dated 18.08.2009 having been considered, was upheld in
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W.P.No.18729 of 2010 is concerned, the Division Bench has stated about the validity
and the interpretation of the qualification that has been prescribed by the High
Court under its Service Rules framed under Article 229 of the Constitution of India.
In the said judgment, the validity of G.O.Ms.No.107 though had been questioned in
the prayer column, it has not been considered and decided and that the
G.O.Ms.No.107 was not upheld. When that being so, based on the said judgment of
the Division Bench dated 10.02.2011 in W.P.No.18729 of 2010, the learned Judge
ought not to have come to such a conclusion that the validity of G.O.Ms.No.107 since
has been upheld by the Division Bench nothing survives in the writ petition as it
cannot be entertained and therefore on that ground dismissed the writ petition, is
an erroneous approach, he contended.
4. Learned counsel for the appellant would further submit that, in fact a
similar issue had come up for consideration before another Division Bench in
W.P.(MD) No.11111 of 2016 in the matter of M.Rathinavel -vs- Registrar
General, High Court of Madras and another, where the promotion that has
been given to the writ petitioner therein was cancelled due to the reason that the
degree obtained by the said writ petitioner viz., M.Rathinavel was obtained from an
Open University without having following the 10+2+3 system. Therefore, on that
ground since the promotion has been cancelled, when that was questioned before
the Court in the said writ petition in W.P.(MD) No.11111 of 2016, another Division
Bench of this Court on 10.08.2017 has passed an order stating that, when a
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qualification has been prescribed as if that it is a degree issued by the Madras
University or any other equivalent degree issued by any other recognized university,
the Division Bench has given an interpretation stating that the recognition of the
University degree is not by the High Court and it is only by the University Grants
Commission under Section 3 of the University Grants Commission Act.
5. When that being so, whatever be the university established in the country,
which has got the recognition of the University Grants Commission, they are
empowered or entitled to award degrees, so for as the university if granted /
awarded a degree, that degree can be considered as an equivalent degree awarded
by the Madras University. Accordingly, the certificate of Under Graduate (U.G)
degree obtained by the said writ petitioner viz., M.Rathinavel from the Open
University without having 10+2+3 system is also an equivalent degree or equivalent
qualification, therefore based on which the promotion sought for by him could have
been given. Hence, the rejection that has been made cancelling the promotion for
the said writ petitioner is bad in law and to that extent the Division Bench has
rendered the said judgment in M.Rathinavel's case on 10.08.2017. When that being
so, assuming that in the Division Bench judgment dated 10.02.2011 made in
W.P.No.18729 of 2010, the validity of G.O.Ms.No.107 has been upheld or it has been
interpreted by the Division Bench, a diagonally opposite view has been taken in the
case of M.Rathinavel dated 10.08.2017. Therefore, due to the conflicting views that
have been taken by two Division Benches of this Court, the issue is not concluded
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and it requires the reconsideration by a larger Bench. Hence, the learned counsel
appearing for the appellant prays for referring the matter to a Full Bench.
6. Learned counsel for the appellant also relies upon the grounds that have
been urged before this Court in support of this writ appeal and made his
submissions stating that, insofar as the validity of G.O.Ms.No.107 is concerned, first
of all it has not been upheld by the Division Bench judgment dated 10.02.2011.
Assuming that it has been upheld, whether such an executive order issued under
Article 162 of the Constitution can amend the various service regulations or service
rules which were framed under Article 309 of the Constitution in toto and that is
impermissible. Therefore, the service rules that have been framed under Article 309
of the Constitution alone will prevail unless and until it is amended in the the
manner known to law. Therefore, mere issuing of executive order or government
order cannot take away the rights of the employees, which has already been
accrued by virtue of the service rules framed under Article 309. Therefore, for that
reason the view taken by the learned Judge is erroneous and hence the learned
counsel for the appellant seeks the indulgence of this Court in setting aside the
impugned order.
7. Heard Mr.Vadivelu Deenadayalan, learned Additional Government Pleader
appearing for the respondents. He would submit that the view taken by the learned
Judge is to be sustained because, as early as on 10.02.2011 a Division Bench of this
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Court has taken the view with regard to the validity of G.O.Ms.No.107 as the very
validity itself questioned in the said writ petition having been considered vis-a-vis
the rules framed under Article 229 of the Constitution of India ie., High Court Service
Rules, the Division Bench has made it clear that, whatever the qualification that has
been prescribed under the Service Rules of the High Court is meant only the degree
obtained through proper method ie., 10+2+3 system in consonance with
G.O.Ms.No.107. Therefore, impliedly if not explicitly G.O.Ms.No.107 has been upheld
by the Division Bench in the said writ appeal, the learned Additional Government
Pleader contended.
8. We have considered the submissions made by the learned counsel on
either side and have perused the materials placed on record.
9. The learned Judge in the impugned order, has only relied upon the
Division Bench judgment in W.P.No.18729 of 2010 dated 10.02.2011, where the
validity of G.O.Ms.No.107 since has been upheld. When the very same prayer was
sought for in the writ petition in W.P.No.20395 of 2012 which is under appeal here,
the learned Judge has taken the view that the issue of validity of G.O.Ms.No.107
since was considered and upheld by the Division Bench judgment, the writ petition
cannot be entertained. That is the only reason given by the learned Judge for
rejecting the writ petition through the impugned order.
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10. Therefore, now the question is whether the validity of G.O.Ms.No.107 has
been upheld in the other Division Bench judgment dated 10.02.2011 in
W.P.No.18729 of 2010 in the matter of T.L.Muthukumar and four others -vs-
The Registrar General, High Court of Madras and another.
11. Insofar as T.L.Muthukumar's case judgment cited supra is concerned,
the prayer sought for therein is for a writ of certiorarified mandamus calling for the
records in G.O.Ms.No.107, Personnel and Administrative Reforms (M) Department
dated 18.08.2009 on the file of the second respondent therein and quash the same
and direct the first respondent therein to consider the petitioners therein for
promotion to the post of Assistant, A.S.O., etc., and also on the basis of the
educational qualification obtained by the petitioners therein.
12. When this issue was dealt with, the Division Bench has exhaustively
considered all these aspects and discussed about the validity of G.O.Ms.No.107. In
fact, the G.O.Ms.No.107 verbatim has been recorded or extracted by the Division
Bench in the said judgment in T.L.Muthukumar's case.
13. The Division Bench has also given reasons that, insofar as the
qualification of U.G.degree prescribed under the High Court Service Rules, which
has been framed under Article 229 of the Constitution is concerned, that U.G.degree
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is nothing but an U.G.degree properly secured or obtained. The U.G.degree which
has been shown as qualification in the Service Rules is nothing but an U.G.degree
completed in 10+2+3 system.
14. This is the sum and substance of the view that has been expressed by
the Division Bench in T.L.Muthukumar's case, where the very validity of the very
same Government Order ie., G.O.Ms.No.107 was put under challenge.
15. If at all G.O.Ms.No.107 is not valid and the Division Bench has considered
that G.O.Ms.No.107 does not make any dent on the service rules that has been
framed under Article 229 of the Constitution of India, the Division Bench judgment
would have been in a different way.
16. The Division Bench has confined itself to the challenge that has been
made in the said writ petition in T.L.Muthukumar's case ie., the validity of
G.O.Ms.No.107 vis-a-vis the Service Rules of Madras High Court and accordingly has
enunciated the principle that the qualification that has been prescribed under the
Service Rules of the Madras High Court ie., U.G.degree is nothing but an U.G.degree
regularly obtained. U.G.degree regularly obtained means through proper education
system of 10+2+3, not otherwise.
17. Therefore, it has been made clear in the said judgment of
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T.L.Muthukumar's case that, there is no infirmity in the prescription that has been
made by the Government through G.O.Ms.No.107. When that being so, the
approach of the learned Judge in following the said judgment of the Division Bench
in T.L.Muthukumar's case cannot be found fault with or it cannot be stated to be
an erroneous approach.
18. Once the Division Bench already upheld the validity of G.O.Ms.No.107, of
course in comparison with the relevant service rules, the subsequent Benches or
single Judges necessarily have to follow the said judgment as there has been no
further appeal against the said judgment in T.L.Muthukumar's case it seems. In
other words, there has been no judgment by the Hon'ble Apex Court as against the
view expressed by the Division Bench in T.L.Muthukumar's case.
19. However, after six years when a similar issue had come up for
consideration before another Division Bench of this Court, it seems that in
M.Rathinavel's case dated 10.08.2017, in a different way interpretation has been
given by the Division Bench with regard to the degree qualification being prescribed
under various service rules.
20. In that case also, the petitioner was an employee of the High Court,
whose promotion since has been cancelled on the ground that the degree
qualification of U.G.degree obtained by him is not a proper U.G.degree, as he
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admittedly obtained the degree from Open University, without following 10+2+3
system and therefore that degree cannot be recognized as a degree for the purpose
of promotion if strictly implemented the prescription that has been made under
G.O.Ms.No.107. The Division Bench has gone to the extent of saying that any degree
awarded by various other universities recognized by the University Grants
Commission (UGC) can also be considered as valid degree and therefore, if a person
is having a valid degree awarded by any other University recognized by the UGC,
that degree can also be considered as equivalent degree awarded by the Madras
University. Therefore, the petitioner therein fulfills the qualification prescribed
under the service rules and hence he is eligible to hold the promoted post and
thereby, the order passed against him was found be bad. That was the view
expressed by the another Division Bench in M.Rathinavel's case in W.P.(MD)
No.11111 of 2016 dated 10.08.2017.
21. The Division Bench, in M.Rathinavel's case, though has referred the
ratio laid down in the judgment of the Hon'ble Supreme Court in 2009 (4) SCC
590 (Annamalai University -vs- Secretary to Government), it has opined that
the said judgment has not been correctly followed by the State Government and
therefore the Division Bench was of the opinion that, notwithstanding the orders
passed by the State Government not to recognize the Bachelor's degree awarded by
the Open Universities as equivalent to a Bachelor's degree awarded by the Madras
University and such holders of Bachelor's degree are not eligible for employment
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under it, it is clearly an impermissible exercise.
22. In this regard, with respect, we would like to point out that the Division
Bench in T.L.Muthukumar's case has dealt with the matter in detail and upheld
the validity of G.O.Ms.No.107 by giving interpretation to the qualification of
U.G.degree prescribed for certain posts for promotion in the High Court Service
Rules as early as on 10.02.2011, but the said judgment dated 10.02.2011 in
T.L.Muthukumar's case has not been referred in M.Rathinavel's case by the
subsequent Division Bench after six yeas. Normally, judicial discipline requires that
if a decision on the same subject has already been rendered by a Division Bench,
that will be taken care of and if the Co-equal Division Bench agrees with the view
already taken by the Coordinate Bench, they can agree with the same and in case
they disagree with the decision taken, normally the matter would be referred to a
larger Bench.
23. Here, no such exercise has been done and no such attempt has been
made by the subsequent Division Bench in M.Rathinavel's case. More over, in the
Division Bench judgment in M.Rathinavel's case, it has been held that the degree
awarded by Madras University means any equivalent degree awarded by any other
university can also be construed as an equivalent qualification, and held that the
University from which the petitioner M.Rathinavel obtained the degree is also a
recognized university and therefore the degree awarded by that University is also a
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recognized degree.
24. We have absolutely no quarrel on this proposition with regard to the
recognized degree. Recognized degree means valid degree. However, the degree
obtained from Open University without following 10+2+3 system, whether to be
accepted as qualification for the purpose of appointment and promotion in the
public employment insofar as the State of Tamil Nadu is concerned, was the
question which arose in the wake of G.O.Ms.No.107 which has been upheld by the
Division Bench in T.L.Muthukumar's case.
25. No doubt, there was an U.G.degree obtained by the said M.Rathinavel
(petitioner in W.P(MD) No.11111 of 2016) from Open University, without following
the system of 10+2+3. That degree may be a valid degree, but that cannot be
taken as qualification for the purpose of appointment and promotion in the public
employment in Tamil Nadu including High Court Service. This has been already
clarified and made clear by the earlier Division Bench judgment in
T.L.Muthukumar's case on 10.02.2011 on the very same High Court Service Rules
framed under Article 229 of the Constitution. When that being so, when a different
view wanted to be taken by another Division Bench, they must have considered the
earlier judgment and if at all the earlier judgment is not agreeable with the
subsequent Division Bench, the subsequent Division Bench should have referred the
matter to the Full Bench. Otherwise, the issue should have been declared as per
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incuriam.
26. Here in the present case, the judgment rendered in M.Rathinavel's case,
in our considered opinion, is per incuriam because, the declaration that has been
made by the Division Bench in M.Rathinavel's case about the validity or equivalence
of the degree obtained by any person from any other University recognized by the
UGC is concerned, we need not have any quarrel. However, whatever degree
obtained from any university recognized by the UGC, whether is a degree obtained
after following the system of 10+2+3 system is the question. If anyone secures any
degree from any recognized University, no doubt it may be a degree for other
purposes, but for the purpose of public employment in the State of Tamil Nadu, the
degree must be a degree obtained after following the system of 10+2+3. If that
system has not been followed, it is not a degree or qualification to be recognized for
the purpose of either for appointment or promotion in public employment in the
State of Tamil Nadu. When that being so, the crux of the issue has not been
considered and decided by the Division Bench in M.Rathinavel's case by judgment
dated 10.08.2017, which in fact has already been decided in T.L.Muthukumar's case
by judgment dated 10.02.2011.
27. Therefore, we have no hesitation to hold that the judgment made in
M.Rathinavel's case is only per incuriam especially in the context of the declaration
already made by the Division Bench in T.L.Muthukumar's case by the judgment
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dated 10.02.2011.
28. Insofar as the argument that has been made by the learned counsel for
the appellant that, by virtue of G.O.Ms.No.107 several service regulations framed
under Article 309 since were sought to be amended, that kind of amendment is
impermissible by mere issuing of an executive order under Article 162 of the
Constitution, we are not impressed with the said argument, the reason being that,
the import of G.O.Ms.No.107 is nothing but a declaration that the qualification
prescribed under various service rules for appointment and promotion in public
employment in the State of Tamil Nadu especially in the context of U.G.degree is
concerned, that U.G.degree must be a valid degree obtained through the system of
10+2+3. Therefore, by virtue of G.O.Ms.No.107, Personnel and Administrative
Reforms Department dated 18.08.2009, the State of Tamil Nadu did not make any
amendment to the service rules. If the amendment is to be made to the service
rules, that has to be made only through proper procedure. Here, the service rules
has not been sought to be amended and the prescription of U.G.degree is always
there. Therefore, we have no hesitation to hold that no amendment has been
sought for in the High Court Service Rules and it has not been touched upon or
tinkered with by issuance of G.O.Ms.No.107, and therefore this argument made by
the learned counsel for the appellant is liable to be rejected. Accordingly, it is
rejected.
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29. For all these reasons and the discussion made herein above, we are of
the considered view that the judgment of the Division Bench made in
W.P.No.18729 of 2010 dated 10.02.2011 in the matter of "T.L.Muthukumar
and four others -vs- The Registrar General, High Court of Madras and
another" is holding the field and the judgment of the Division Bench made in
W.P.(MD) No.11111 of 2016 dated 10.08.2017 in the matter of
"M.Rathinavel -vs- The Registrar General, Madras High Court and another"
insofar as the present context and subject matter is concerned it is held per
incuriam. Therefore, the view taken by the learned Judge in the impugned order
dated 01.08.2012 in W.P.No.20395 of 2012 following the Division Bench Judgment in
T.L.Muthukumar's case dated 10.02.2011 is a right approach. Therefore, that
kind of approach cannot be found fault with. Hence, the order made by the writ
court impugned in the present writ appeal is to be sustained. Accordingly, it is
sustained. Resultantly, the appeal fails and hence it is dismissed. No costs.
30. After pronouncing the judgment, the learned counsel for the appellant,
the question of law that may arise pursuant to this judgment since has to be tested
before the Hon'ble Apex Court, seeks leave under Article 134A(b) of the Constitution.
However, we are not inclined to give such certification / leave and the said plea is
rejected.
(R.S.K.,J.) (G.A.M.,J.)
22.11.2023
Index : Yes
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Internet : Yes
Neutral Citation : Yes
KST
Note : Issue order copy by 23.11.2023
R.SURESH KUMAR, J.
and
G.ARUL MURUGAN, J.
KST
To
1. The Secretary to Government
Personnel and Administrative Reforms Department
Secretariat, Chennai 600 009.
2.The Director of School Education
DPI Complex, College Road
Chennai 600 006.
22.11.2023
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