Madras High Court
T. Sudarmani vs Kirubakaran on 17 May, 2024
Author: R. Mahadevan
Bench: R. Mahadevan, Mohammed Shaffiq
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 17.05.2024
CORAM:
THE HON'BLE MR. JUSTICE R. MAHADEVAN
AND
THE HON'BLE MR. JUSTICE MOHAMMED SHAFFIQ
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
and
C.M.P. Nos.27509, 28299, 28301, 26499, 27802, 27803, 28224, 28226 of 2023
5405 and 5402 of 2024
W.A. No.3366 of 2023:
1 T. Sudarmani
2 K. Neelambal
3 S. Mahendiran Appellants
v
1 The State of Tamil Nadu
represented by its Principal Secretary to Government
School Education Department
Fort St. George
Chennai 600 009
2 The Director of School Education
Directorate of School Education
DPI Campus
College Road
Chennai 600 006
3 The Teachers Recruitment Board (TRB)
https://www.mhc.tn.gov.in/judis
1/30
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
IV Floor, DPI Campus
College Road
Chennai 600 006
4 T.S. Sathiyaseelan
5 C. Ragu
6 M. Chitra
7 A. Anbu
8 M. Periyasamy
9 R. Jeya
10 V. Kirubakaran
11 C. Selvam
12 M. Dhasarathan
13 K. Baskaran
14 J. Valli
15 M. Murugesan
16 K. Senthil Murugan
17 A. Vasagan
18 J. Revathi
19 P. Arulmozhi Respondents
W.A. No.3460 of 2023:
https://www.mhc.tn.gov.in/judis
2/30
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
1 M. Srinevasan
2 S. Manju
3 K. Revathi
4 M. Mohanraj
5 S. Athirasu
6 G. Arumgam
7 Abel John Edward D.
8 M. Prabakaran
9 V. Rajesh
10 S. Sathya
11 S. Sankar Appellants
v
1 The State of Tamil Nadu
represented by its Principal Secretary to Government
School Education Department
Fort St. George
Chennai 600 009
2 The Director of School Education
Directorate of School Education
DPI Campus
College Road
Chennai 600 006
3 The Teachers Recruitment Board (TRB)
IV Floor, DPI Campus
College Road
Chennai 600 006
4 T.S. Sathiyaseelan
5 C. Ragu
https://www.mhc.tn.gov.in/judis
3/30
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
6 M. Chitra
7 A. Anbu
8 M. Periyasamy
9 R. Jeya
10 V. Kirubakaran
11 C. Selvam
12 M. Dhasarathan
13 K. Baskaran
14 J. Valli
15 M. Murugesan
16 K. Senthil Murugan
17 A. Vasagan
18 J. Revathi
19 P. Arulmozhi Respondents
W.A. No.3247 of 2023:
1 T.S. Sathiyaseelan
2 C. Ragu
3 M. Chitra
4 A. Anbu
5 M. Periyasamy
6 R. Jeya
https://www.mhc.tn.gov.in/judis
4/30
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
7 V. Kirubakaran
8 C. Selvam
9 M. Dhasarathan
10 K. Baskaran
11 J. Valli
12 M. Murugesan
13 K. Senthil Murugan
14 A. Vasagan
15 J. Revathi
16 P. Arulmozhi Appellants
v
1 The State of Tamil Nadu
represented by its Principal Secretary to Government
School Education Department
Fort St. George
Chennai 600 009
2 The Director of School Education
Directorate of School Education
DPI Campus
College Road
Chennai 600 006
3 The Teachers Recruitment Board (TRB)
IV Floor, DPI Campus
College Road
Chennai 600 006 Respondents
W.A. No.3399 of 2023:
K. Sankar Appellant
https://www.mhc.tn.gov.in/judis
5/30
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
v
1 The State of Tamil Nadu
represented by its Principal Secretary to Government
School Education Department
Fort St. George
Chennai 600 009
2 The Director of School Education
Directorate of School Education
DPI Campus
College Road
Chennai 600 006
3 The Teachers Recruitment Board (TRB)
IV Floor, DPI Campus
College Road
Chennai 600 006
4 T.S. Sathiyaseelan
5 C. Ragu
6 M. Chithra
7 A. Anbu
8 M. Periyasamy
9 R. Jeya
10 V. Kirubakaran
11 C. Selvam
12 M.Dhasarathan
13 K. Baskaran
14 J. Valli
https://www.mhc.tn.gov.in/judis
6/30
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
15 M. Murugesan
16 K. Senthil Murugan
17 A. Vasagan
18 J. Revathi
19 P. Arulmozhi Respondents
W.A. No.3449 of 2023:
1 A. Ramakrishnan
2 Z. Leo Paulraj
3 A. Rajarathinam
4 V. Rajendran
5 M.S. Mani
6 D.K. Jayaraman
7 S. Sakthivel
8 C. Sathya
9 S. Shahul Hameed Badusha
10 K. Madhammal Appellants
v
1 The State of Tamil Nadu
represented by its Principal Secretary to Government
School Education Department
https://www.mhc.tn.gov.in/judis
7/30
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
Fort St. George
Chennai 600 009
2 The Director of School Education
Directorate of School Education
DPI Campus
College Road
Chennai 600 006
3 The Teachers Recruitment Board (TRB)
IV Floor, DPI Campus
College Road
Chennai 600 006
4 T.S. Sathiyaseelan
5 C. Ragu
6 M. Chitra
7 A. Anbu
8 M. Periyasamy
9 R. Jeya
10 V. Kirubakaran
11 C. Selvam
12 M. Dhasarathan
13 K. Baskaran
14 J. Valli
15 M. Murugesan
16 K. Senthil Murugan
https://www.mhc.tn.gov.in/judis
8/30
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
17 A. Vasagan
18 J. Revathi
19 P. Arulmozhi Respondents
W.A. No.799 of 2024:
G. Mariappan Appellant
v
1 The State of Tamil Nadu
represented by its Principal Secretary to Government
School Education Department
Fort St. George
Chennai 600 009
2 The Director of School Education
Directorate of School Education
DPI Campus
College Road
Chennai 600 006
3 The Teachers Recruitment Board (TRB)
IV Floor, DPI Campus
College Road
Chennai 600 006
4 T.S. Sathiyaseelan
5 C. Ragu
6 M. Chithra
7 A. Anbu
8 M. Periyasamy
9 R. Jeya
https://www.mhc.tn.gov.in/judis
9/30
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
10 V. Kirubakaran
11 C. Selvam
12 M. Dhasarathan
13 K. Baskaran
14 J. Valli
15 M. Murugesan
16 K. Senthil Murugan
17 A. Vasagan
18 J. Revathi
19 P. Arulmozhi Respondents
Writ Appeals filed under Clause 15 of the Letters Patent challenging the
order dated 15.11.2023 passed in W.P. No.32386 of 2023.
For appellant Mrs. Kavitha Nithyanandan
in all WAs
For RR 1 & 2 Mr. J.Ravindran, AAG assisted by
in all WAs Mr.U.M. Ravichandran
Special Government Pleader
For R3 Mr. R. Neelakandan, AAG assisted by
in all WAs Mr. C. Kathiravan
Special Government Pleader
-----
COMMON JUDGMENT
https://www.mhc.tn.gov.in/judis
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
R. MAHADEVAN, J.
Since all these writ appeals emanate from one particular order, viz., order
dated 15.11.2023 passed by a learned Judge in W.P. No.32386 of 2023, they are
considered and decided by this common judgment.
2 At the threshold, it is worth mentioning that except the writ appeal
in W.A. No.3247 of 2023, which is filed by the unsuccessful writ petitioners,
the remaining writ appeals have been filed by third parties to the writ petition.
3 Shorn off minute details, the facts which are germane for deciding
these cases are set out infra:
3.1 The Teachers Recruitment Board issued a notification dated
25.10.2023 inviting applications for direct recruitment to the post of Graduate
Teachers/Block Resource Teacher Educators (BRTE) in School Education and
other departments included in the Special Rules for the Tamil Nadu School
Educational Subordinate Service for the year 2023-2024. One of the
qualifications prescribed for the said post in the notification was that the
candidates should have graduation with at least 45% marks and B.Ed. degree in
accordance with the NCTE (Recognition Norms and Procedure) Regulations
https://www.mhc.tn.gov.in/judis
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
issued from time to time in this regard.
3.2 While so, the appellants in W.A. No.3247 of 2023, who have
qualified Teachers Eligibility Test (TET) on various dates, but scored less than
45% in their graduation, filed a writ petition being W.P. No.32386 of 2023
seeking a writ of declaration that they are eligible to apply and to be appointed
as Graduate Teachers/Block Resource Teacher Educator (BRTE), pursuant to
the notification dated 25.10.2023 issued by the Teachers Recruitment Board.
3.3 Before the learned Judge, the sole ground that was urged was that
the appellants in W.A. No.3247 of 2023 having been allowed to partake in the
TET, it cannot be stipulated that they should have secured a minimum of 45%
in their graduation.
3.4 The above ground did not cut ice with the learned Judge.
Observing that the Teachers Recruitment Board is at liberty to stipulate its own
conditions as essential qualification for filling up of vacancies and unless such
conditions are in contravention of its regulations or arbitrary, the Court cannot
interfere with the stipulation of such qualification, the learned Judge dismissed
the writ petition.
https://www.mhc.tn.gov.in/judis
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
4 Thereagainst, the writ petitioners, on the one hand, and some third
parties to the lis, on the other, have preferred these writ appeals as stated in
paragraph 2, supra.
5 Heard Ms. Kavitha Nithyanandan, learned counsel for the
appellants, who would draw the attention of this Court to the fact that though
the NCTE had stipulated the minimum qualifications required for the post of
Graduate Teacher/BT Assistant as early as on 23.08.2010 and 29.07.2011, the
State Government had consciously relaxed the qualifying marks by 5% applying
the rule of reservation. This is evident from the fact that the minimum
qualifying marks have been stated to be 50% for general, 45 % for BC, 43% for
MBC and 40 % for SC/ST for admission to B.Ed. course and the pass marks in
graduation is 40%. She further submits that under Proviso to Para 3 of the
NCTE Notification dated 29.07.2011, the State is permitted to relax the
qualifying marks by 5% for appointment as teachers. She would contend that
once the power of relaxation by 5% in qualifying marks is available to the State
and when the State has exercised the same by permitting those candidates who
secured less than 45% marks in Graduation to appear for TET, it would be
against the principles of promissory estoppel and legitimate expectation to now
https://www.mhc.tn.gov.in/judis
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
deny them the chance to apply for the post of BT Assistant by citing the NCTE
notifications after having relaxed the qualifying marks.
6 Continuing further, the learned counsel for the appellants would
contend that after making themselves eligible for appearing for TET and after
passing the said test, which is one of the qualifications for applying to the post
in question, the Teachers Recruitment Board prescribing a further condition that
the candidates should possess not less than 45% marks in their graduation is
illegal, more so, when even according to the Government, 40% in graduation is
considered as pass. In other words, according to the learned counsel, when the
appellants have passed graduation followed by TET, by the notification
stipulating that minimum of 45% is required in graduation, the chance of the
appellants for getting public employment is taken away, which is illegal.
7 On the other hand, the learned Additional Advocate General, inter
alia, contended that when the notification dated 25.10.2023 has come to be
issued only as per the provisions of the Right of Children to Free and
Compulsory Education Act, the Right to Education Act and the Government
Orders and NCTE notifications issued from time to time, the policy of the
Government keeping in mind the educational standard, cannot be interfered with
https://www.mhc.tn.gov.in/judis
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
by the Court, when even according to the appellants, is not vitiated by mala
fides.
8 The learned Special Government Pleader, based on the counter
affidavit filed by the first respondent, reiterated the submissions made by the
learned Additional Advocate General, besides submitting that prescribing
minimum requirement of marks in graduation for applying B.Ed. and
prescribing minimum requirement of marks in graduation for appointment to the
post of B.T. Assistant, cannot be equated. Placing reliance on the judgment of
the Supreme Court in Ram Kumar Patel & others v State of U.P. and others
[(2018) 13 SCC 175], he submitted that the notification in question stipulating
the candidates to have secured 45% in the graduation cannot be said to be
faulty.
9 Heard the learned counsel for the appellants and the learned
Additional Advocate General and the learned Special Government Pleader
appearing for the official respondents and also perused the materials placed
before this court.
10 The appellants have completed their graduation, B.Ed. and passed
the Teacher Eligibility Test as early as in 2013 and have been waiting for
employment as Government School teachers. Their grievance is that while the
https://www.mhc.tn.gov.in/judis
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
State Government permitted them to write TET exam in 2013 (and followed the
same yardstick in 2017) by stating that anyone with a pass in Graduation (40%),
and B.Ed. could appear for TET, they have now stated in their recruitment
notification dated 25.10.2023 that only those with Graduation with atleast 45%
marks with B.Ed. can apply of the post of BT Assistant.
11 It is a matter of fact that the NCTE had stipulated the minimum
qualifications required for the post of Graduate Teacher/BT Assistant as early as
on 23.08.2010, and 29.07.2011. Under Proviso to Para 3 of the NCTE
Notification dated 29.07.2011, the State is permitted to relax the qualifying
marks by 5% for appointment as teachers. In the State of Tamil Nadu, it is seen
that the State has consciously relaxed the qualifying marks by 5% applying the
rule of reservation. A perusal of the records show that the minimum qualifying
marks have been stated to be 50% for general, 45 % for BC, 43% for MBC and
40 % for SC/ST for admission to B.Ed. course and the pass marks in graduation
is 40%.
12 We find merit in the contention raised on the side of the appellants
that once the power of relaxation by 5% in qualifying marks is available to the
State and when the State has exercised the same by permitting those candidates
https://www.mhc.tn.gov.in/judis
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
who secured less than 45% marks in Graduation to appear for TET, it would not
be open to the State Government to now deny them the chance to apply for the
post of BT Assistant by increasing the qualifying marks by citing the NCTE
notifications, which itself permits such relaxation. Such denial would be
shutting the doors of employment to these appellants, who have been waiting
for employment as teachers having qualified for the specific test- Teachers
Eligibility Test. Such action of the State Government would fly in the face of
their own conscious act of relaxing the qualifying marks, which would attract
the rigour of arbitrariness as well as be against the legitimate expectation of the
appellants. The doctrine of legitimate expectation is an off-shoot of the concept
of non-arbitrariness and fairness in administrative action of the State. The
legitimate expectation of the appellants must be based on past established
practice and must yield to the public good and public policy. The law on the
doctrine of legitimate expectation has been exhaustively elucidated by the
Supreme Court in the case of Sivanandan CT and Others v. High Court of
Kerala and Others [(2024) 3 SCC 799] and the same is extracted hereunder:
"(ii) Legitimate expectation
17. Another important aspect that arises for our
consideration in these batch of petitions is whether the High Court's
decision frustrates the legitimate expectation of the petitioners.
Article 233 of the Constitution provides that the appointment of
https://www.mhc.tn.gov.in/judis
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
persons to be posted as District Judges in any State shall be made by
the Governor of the State in consultation with the High Court
exercising jurisdiction in relation to such State. Further, Article 235
vests with the High Court the control over District Courts including
the posting and promotion of District Judges. The maintenance of
efficiency of judicial administration is entirely within the control and
jurisdiction of the High Court. [State of Bihar v. Bal Mukund Sah,
(2000) 4 SCC 640 : 2000 SCC (L&S) 489.] The Governor, in
consultation with the High Court, prescribes rules laying down the
method of appointment and the necessary eligibility criteria for the
selection of suitable candidates for the post of District Judges.
According to the 1961 Rules, the High Court of Kerala was
designated as the appointing authority and tasked with the
responsibility of conducting the written examination and the viva
voce. The actions of the High Court, in pursuance of its public duty,
would give rise to the legitimate expectation that the process of
selection of candidates will be fair and non-arbitrary.
(a) Doctrine of legitimate expectation under common law
18. The basis of the doctrine of legitimate expectation in
public law is founded on the principles of fairness and non-
arbitrariness in Government dealings with individuals. It recognises
that a public authority's promise or past conduct will give rise to a
legitimate expectation. The doctrine is premised on the notion that
public authorities, while performing their public duties, ought to
honour their promises or past practices. The legitimacy of an
expectation can be inferred if it is rooted in law, custom, or
established procedure. [Salemi v. MacKeller (No. 2), 1977 HCA 26 :
(1977) 137 CLR 396]
19. The origin of the doctrine in the modern sense could be
authoritatively traced to the opinion of Lord Denning in Schmidt v.
Secy. of State for Home Affairs [Schmidt v. Secy. of State for Home
Affairs, (1969) 2 Ch 149 : (1969) 2 WLR 337 (CA)] . In that case,
the Home Secretary granted a limited permit to the petitioners to
enter the United Kingdom for the purposes of study at the College of
Scientology. After the expiration of the time period, the petitioners
applied to the Home Secretary for an extension of their permits. The
Home Secretary refused to grant the extension. Although the Court
rejected the claim brought by the petitioners, Lord Denning
observed that the petitioner would have a legitimate expectation of
being allowed to stay for the permitted time. In such situation, it was
https://www.mhc.tn.gov.in/judis
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
observed that the petitioner ought to have been given an opportunity
of making a representation if his permit was revoked before the
expiration of the time period. Lord Denning's conception of the
doctrine of legitimate expectation was a procedural protection — a
legitimate expectation could not be denied without providing an
opportunity of hearing to the affected person.
20. In O'Reilly v. Mackman [O'Reilly v. Mackman, (1983)
2 AC 237 : (1982) 3 WLR 1096 (HL)] , the House of Lords was
called upon to decide the validity of the order passed by the Board of
Visitors to impose a penalty against the plaintiffs in breach of the
prison rules and principles of natural justice. Lord Diplock observed
that the doctrine of legitimate expectation gave the affected party a
right to challenge the legality of the adverse actions on the ground
that the authority had acted beyond the powers conferred upon it by
the legislation including the failure to observe the principles of
natural justice. Lord Diplock reiterated the doctrine of legitimate
expectation in terms of the duty of public authorities to act fairly in
their dealings with individuals.
21. The doctrine of legitimate expectation received further
impetus in the decision of the Privy Council in Attorney-General of
Hong Kong v. Ng Yuen Shiu [Attorney-General of Hong Kong v. Ng
Yuen Shiu, (1983) 2 AC 629 : (1983) 2 WLR 735 (PC)] . In that case,
a senior immigration officer announced that each illegal entrant
from China would be interviewed before passing deportation orders
against them. The respondent, an illegal entrant from China, was
detained and removal orders were passed against him without any
opportunity of hearing. Therefore, the issue was whether the
respondent had a legitimate expectation of the grant of a hearing
before repatriation by the immigration officer. It was held that a
public authority is bound by its undertakings. Lord Fraser explained
the contours of legitimate expectations in the following terms : (AC
p. 637)
“The expectations may be based upon some
statement or undertaking by, or on behalf of, the
public authority which has the duty of making the
decision, if the authority has, through its officers,
acted in a way that would make it unfair or
inconsistent with good administration for him to be
denied such an inquiry.”
According to Lord Fraser's opinion, the primary justification for the
https://www.mhc.tn.gov.in/judis
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
doctrine of legitimate expectation is that a public authority should
implement its promise in the interests of fairness and good
administration.
22. The doctrine of legitimate expectation was crystallised
in common law jurisprudence by Lord Diplock in the locus classicus,
Council of Civil Service Unions v. Minister for the Civil Service
[Council of Civil Service Unions v. Minister for the Civil Service,
1985 AC 374 : (1984) 3 WLR 1174 (HL)] . Lord Diplock held that
courts can exercise the power of judicial review of administrative
decisions in situations where such decision deprives a person of
some benefit or advantage which:
22.1. They had in the past been permitted by the decision-
maker to enjoy and which they can legitimately expect to be
permitted to continue until there has been communicated to them
some rational grounds for withdrawing it on which they have been
given an opportunity to comment; or
22.2. They have received assurance from the decision-maker
that the advantage or benefit will not be withdrawn without giving
them an opportunity of advancing reasons for contending that the
advantage or benefit should not be withdrawn.
23. The doctrine of legitimate expectation emerged as a
common law doctrine to guarantee procedural fairness and
propriety in administrative actions. Legitimate expectation was
developed by the courts to require a degree of procedural fairness by
public authorities in their dealings with individuals. Denial of an
assured benefit or advantage was accepted as a ground to challenge
the decision of a public authority.
(b) Doctrine of legitimate expectation under Indian law
24. By the 1990s, the Indian courts incorporated the
doctrine of legitimate expectation in the context of procedural
fairness and non-arbitrariness under Article 14 of the Constitution.
In Food Corpn. of India v. Kamdhenu Cattle Feed Industries [Food
Corpn. of India v. Kamdhenu Cattle Feed Industries, (1993) 1 SCC
71] , this Court held that public authorities have a duty to use their
powers for the purposes of public good. This duty raises a legitimate
expectation on the part of the citizens to be treated in a fair and non-
arbitrary manner in their interactions with the State and its
https://www.mhc.tn.gov.in/judis
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
instrumentalities. This Court held that a decision taken by an
executive authority without considering the legitimate expectation of
an affected person may amount to an abuse of power : (SCC p. 76,
para 7)
“7. … To satisfy this requirement of non-
arbitrariness in a State action, it is, therefore,
necessary to consider and give due weight to the
reasonable or legitimate expectations of the persons
likely to be affected by the decision or else that
unfairness in the exercise of the power may amount to
an abuse or excess of power apart from affecting the
bona fides of the decision in a given case. The decision
so made would be exposed to challenge on the ground
of arbitrariness. Rule of law does not completely
eliminate discretion in the exercise of power, as it is
unrealistic, but provides for control of its exercise by
judicial review.”
The Court held that whether the expectation of a claimant is
legitimate or not is a question of fact which has to be decided after
weighing the claimant's expectation against the larger public
interest. Thus, while dealing with the claims of legitimate
expectations, the court has to necessarily balance the legitimate
expectation of a claimant against the larger public interest.
25. In Union of India v. Hindustan Development Corpn.
[Union of India v. Hindustan Development Corpn., (1993) 3 SCC
499] this Court clarified the contours of the doctrine of legitimate
expectation in the following terms:
(i) legitimate expectation arises based on a representation or past
conduct of a public authority;
(ii) legitimacy of an expectation can be inferred only if it is founded
on the sanction of law or custom or an established procedure
followed in regular or natural sequence;
(iii) legitimate expectation provides locus standi to a claimant for
judicial review;
(iv) the doctrine is mostly confined to a right of a fair hearing before
a decision and does not give scope to claim relief straightaway;
https://www.mhc.tn.gov.in/judis
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
(v) the public authority should justify the denial of a person's
legitimate expectation by resorting to overriding public interest; and
(vi) the courts cannot interfere with the decision of an authority
taken by way of policy or public interest unless such decision
amounts to an abuse of power.
26. In Hindustan Development Corpn. [Union of India v.
Hindustan Development Corpn., (1993) 3 SCC 499] , this Court
cautioned against the use of the doctrine of legitimate expectation to
safeguard a substantive right. Yet, in a series of subsequent
decisions, this Court accepted that the doctrine of legitimate
expectations has become a source of both procedural and
substantive rights. [M.P. Oil Extraction v. State of M.P., (1997) 7
SCC 592; National Buildings Construction Corpn. v. S.
Raghunathan, (1998) 7 SCC 66 : 1998 SCC (L&S) 1770.] In Punjab
Communications Ltd. v. Union of India [Punjab Communications
Ltd. v. Union of India, (1999) 4 SCC 727] , this Court explained the
difference between procedural and substantive legitimate
expectation in the following terms : (Punjab Communications case
[Punjab Communications Ltd. v. Union of India, (1999) 4 SCC 727]
, SCC p. 742, para 27)
“27. … The procedural part of it relates to a
representation that a hearing or other appropriate
procedure will be afforded before the decision is
made. The substantive part of the principle is that if a
representation is made that a benefit of a substantive
nature will be granted or if the person is already in
receipt of the benefit that it will be continued and not
be substantially varied, then the same could be
enforced.” (emphasis in original)
27. A claim based on the doctrine of procedural legitimate
expectation arises where a claimant expects the public authority to
follow a particular procedure before taking a decision. This is in
contradistinction to the doctrine of substantive legitimate
expectation where a claimant expects conferral of a substantive
benefit based on the existing promise or practice of the public
authority. The doctrine of substantive legitimate expectation has now
been accepted as an integral part of both the common law as well as
Indian jurisprudence.
https://www.mhc.tn.gov.in/judis
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
(c) Substantive legitimate expectation
28. In R. v. North and East Devon Health Authority, ex p
Coughlan [R. v. North and East Devon Health Authority, ex p
Coughlan, 2001 QB 213 : (2000) 2 WLR 622 (CA)] , the Court of
Appeal laid down the test of abuse of power to determine whether a
public authority can resile from a prima facie legitimate expectation.
It was held that frustration of a substantive legitimate expectation by
public authorities would be unfair and amount to abuse of power.
Importantly, it was held that abuse of power constitutes a ground for
the courts to exercise judicial review of executive actions.
29. In R. (Nadarajah) v. Secy. of State for the Home Deptt.
[R. (Nadarajah) v. Secy. of State for the Home Deptt., 2005 EWCA
Civ 1363] the Court of Appeal added another facet to the doctrine of
substantive legitimate expectation by grounding it in the principles
of good administration. Importantly, the Court identified that
consistency and probity are tenets of a good administration. Laws,
L.J. explained the principles underlying the doctrine of legitimate
expectation in the following terms:
“68. The search for principle surely starts with
the theme that is current through the legitimate
expectation cases. It may be expressed thus. Where a
public authority has issued a promise or adopted a
practice which represents how it proposes to act in a
given area, the law will require the promise or
practice to be honoured unless there is good reason
not to do so. What is the principle behind this
proposition? It is not far to seek. It is said to be
grounded in fairness, and no doubt in general terms
that is so. I would prefer to express it rather more
broadly as a requirement of good administration, by
which public bodies ought to deal straightforwardly
and consistently with the public.”
(emphasis supplied)
Moreover, Laws, L.J. held that a public authority can resile from its
promise or future conduct if its decision : (i) is in pursuance of a
legal duty; or (ii) is a proportionate response having regard to the
legitimate aim pursued by the public body in the public interest.
https://www.mhc.tn.gov.in/judis
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
30. The decision of the Court of Appeal in Coughlan [R. v.
North and East Devon Health Authority, ex p Coughlan, 2001 QB
213 : (2000) 2 WLR 622 (CA)] marked a gradual shift in the
formulation of the doctrine of legitimate expectation in the common
law. In Schmidt [Schmidt v. Secy. of State for Home Affairs, (1969) 2
Ch 149 : (1969) 2 WLR 337 (CA)] and Council of Civil Service
Unions [Council of Civil Service Unions v. Minister for the Civil
Service, 1985 AC 374 : (1984) 3 WLR 1174 (HL)] , the application
of the doctrine was justified on the grounds of fairness in decision-
making by public authorities. However, the gradual shift towards a
more nuanced aspect of the doctrine began when the English courts
started requiring public authorities to honour their promises or
practices as a requirement of good administration. Good
administration was characterised by consistent, regular, and
straightforward conduct on behalf of the public authorities. Further,
the concept of unfairness in decision-making as an abuse of power
was firmly established by the Court in Coughlan [R. v. North and
East Devon Health Authority, ex p Coughlan, 2001 QB 213 : (2000)
2 WLR 622 (CA)] . Thus, the requirement of good administration
and preventing an abuse of power came to underpin the
administrative actions of public authorities. [R. v. Secy. of State for
Education & Employment, ex p Begbie, (2000) 1 WLR 1115 (CA)]
31. The above developments in the common law also had
an influence on the Indian law. In Ram Pravesh Singh v. State of
Bihar [Ram Pravesh Singh v. State of Bihar, (2006) 8 SCC 381 :
2006 SCC (L&S) 1986] , this Court explained the concept of
legitimate expectation as a reasonable, logical, and valid
expectation of certain benefit, relief, or remedy : (SCC pp. 390-91,
para 15)
“15. What is legitimate expectation?
Obviously, it is not a legal right. It is an expectation of
a benefit, relief or remedy, that may ordinarily flow
from a promise or established practice. The term
“established practice” refers to a regular, consistent,
predictable and certain conduct, process or activity of
the decision-making authority. The expectation should
be legitimate, that is, reasonable, logical and valid.
Any expectation which is based on sporadic or casual
or random acts, or which is unreasonable, illogical or
invalid cannot be a legitimate expectation.”
(emphasis supplied)
https://www.mhc.tn.gov.in/judis
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
32. In Ram Pravesh Singh [Ram Pravesh Singh v. State of
Bihar, (2006) 8 SCC 381 : 2006 SCC (L&S) 1986] , this Court noted
that the efficacy of the doctrine of legitimate expectation is weak as
the claimant is only entitled to the following two reliefs : (i) an
opportunity to show cause before the expectation is negatived; and
(ii) an explanation as to the cause for denial. The Court further
clarified that a claim based on legitimate expectation can be
negatived on factors such as public interest, change in policy,
conduct of the claimant, or any other valid or bona fide reason
provided by the public authority.
33. While dealing with the doctrine of legitimate
expectation, another important aspect that the courts have had to
grapple with is determining the “legitimacy” of the expectation. The
court can infer the legitimacy of an expectation only if it is founded
on the sanction of law. [Bannari Amman Sugars Ltd. v. CTO, (2005)
1 SCC 625] In State of Karnataka v. Umadevi (3) [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753]
a Constitution Bench of this Court held that a contractual or casual
employee cannot claim a legitimate expectation to be regularised in
service since such appointments could only be made after following
proper procedures for selection including consultation with the
Public Service Commission in certain situations. The legitimacy of
expectation is a question of fact and has to be determined after
weighing the claimant's expectation against the larger public
interest.
34. This Court has consistently held that a legitimate
expectation must always yield to the larger public interest. In Sethi
Auto Service Station v. DDA [Sethi Auto Service Station v. DDA,
(2009) 1 SCC 180] , this Court clarified that legitimate expectation
will not be applicable where the decision of the public authority is
based on a public policy or is in the public interest, unless the action
amounts to an abuse of power. The doctrine of legitimate expectation
cannot be invoked to fetter valid exercise of administrative
discretion. [Monnet Ispat & Energy Ltd. v. Union of India, (2012) 11
SCC 1] In P. Suseela v. UGC [P. Suseela v. UGC, (2015) 8 SCC
129: (2015) 2 SCC (L&S) 633], the claimants challenged the UGC
Regulations which made it mandatory for candidates seeking to be
appointed to the post of Lecturer or Assistant Professor to qualify at
the NET examination. The Court held that the legitimate expectation
of the claimants must yield to the larger public interest — having
https://www.mhc.tn.gov.in/judis
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
highly qualified Assistant Professors and Lecturers to teach in
educational institutions governed by the UGC.”
13 In the present case, having allowed those, who possessed less than
45% marks in Graduation to write TET, they cannot now be denied the chance
to be considered for the post of BT Assistant by stipulating a minimum of 45 %
in Graduation. The expectation of the appellants is certainly founded in law as
the past practice adopted had its source in the power given to the State to relax
the qualifying marks by 5%. Further, there is no change in the policy or the
Regulations applicable, meaning thereby that there is no overbearing public
interest which justifies the taking away of the rights of the appellants to apply
for and be considered for the post of teachers, especially when they have
qualified themselves for B.Ed. as well as TET on the express promise made by
the State on their eligibility to be admitted to B.Ed. as well as to participate in
TET, both of which are essential eligibility criteria for being appointed as a
Graduate teacher/ B.T. Assistant. Thus, this is a classic case attracting the
doctrine of legitimate expectation in favour of the appellants. During the
pendency of these appeals, this Court finding a prima facie case in favour of the
appellants, had passed interim orders permitting the appellants to apply for the
post of Graduate Teachers/Block Resource Teacher Educator(BRTE) pursuant
to the notification dated 25.10.2023. The appellants have appeared for the
https://www.mhc.tn.gov.in/judis
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
competitive examinations pursuant to the interim orders.
14 In this regard, reference is also made to the judgment of the
Supreme Court in Vikas Sankhala v. Vikas Kumar Agarwal [(2017) 1 SCC
350] wherein the Suprme Court observed as follows:
“29. While reiterating the mandate of a pass in TET to be a
norm of eligibility, rationale therefore was enumerated as under:
(i) it would bring national standards and benchmark of
teacher quality in the recruitment process;
(ii) it would induce teacher education institutions and students
from these institutions to further improve their performance
standards;
(iii) it would send a positive signal to all stakeholders that the
Government lays special emphasis on teacher quality.
30. Conspicuously, thus, the essence of TET was to infuse
a qualitative content in the recruitment process and thus, set a
national benchmark for the sake of uniformity in the level of
elementary education in the country. It prescribed 60% or more
marks in TET as pass marks with liberty granted to the Governments
to give concessions to persons belonging to SC/ST, OBC, differently-
abled persons, etc. in accordance with extant reservation policy.
31. The High Court, then, pointed out that none of the
parties had challenged the competence of NCTE either to issue
Guidelines dated 11-2-2011 to conduct TET or to vest a discretion
in the State Government to grant relaxation as contemplated therein
i.e. in accordance with the “extant” reservation policy. The High
Court, thereafter, discussed the Letter dated 23-3-2011 issued by the
State Government giving concession to the extent of 10%/15%/20%
to different reserved categories but without disclosing any reference
to the extant reservation policy of the Government. The High Court
ultimately found, as already pointed out above, that the State
Government could not deduce any such reservation policy and, thus,
held that in the absence of such a policy, the State Government
could not have granted the concession, as was done vide Letter
dated 23-3-2011.
https://www.mhc.tn.gov.in/judis
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
32. Coming to the Notification dated 29-7-2011 which was
issued by NCTE in exercise of its power under Section 23(1) of the
RTE Act, amending its earlier Notification dated 23-8-2010, the
High Court proceeded to discuss as to whether relaxation up to 5%
in qualifying marks contained therein was relatable to TET. This
question had arisen for consideration because of the reason that the
writ petitioners belonging to general category had argued that vide
the said Notification dated 29-7-2011, Para 3 of the principal
Notification dated 23-8-2010 was substituted and the context of the
said Para 3 was totally different. After juxtaposing unamended Para
3 and amended Para 3, the High Court pointed out that Para 3 of
the Notification dated 23-8-2010 dealt exclusively with the aspect of
NCTE recognised six months' special programme in elementary
education by way of training of persons with qualifications
mentioned therein after appointment. Thus, there was neither any
comprehension nor any provision for reservation or relaxation of
marks. Only academic qualifications with minimum percentage of
marks was referred to. Therefore, concession of 5% in the qualifying
marks pertained to the percentage of marks in the qualifying
examination of Senior Secondary/graduation, etc. and had no nexus
with the pass marks in TET.
33. The High Court further pointed out that in terms of
Letter dated 23-3-2011 issued by the State Government (which was
passed on NCTE Notification dated 29-3-2011 for giving relaxation
qua academic qualifications) reserved category candidates availed
second relaxation qua their academic qualifications. In this manner,
they stood doubly advantaged and the impact of such relaxation had
bearing on ultimate assessment on merit.”
15 In the light of the above findings, the order under challenge is set
aside and these writ appeals are allowed with a direction to the respondents to
consider the case of appellants for appointment to the post of Graduate
Teachers/B.T. Assistants if they are otherwise eligible. No costs. Connected
miscellaneous petitions are closed.
https://www.mhc.tn.gov.in/judis
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
[R.M.D, J.] [M.S.Q, J.]
cad 17.05.2024
To
1 The Principal Secretary to Government
School Education Department
Government of Tamil Nadu
Fort St. George, Chennai 600 009
2 The Director of School Education
Directorate of School Education
DPI Campus
College Road
Chennai 600 006
3 The Teachers Recruitment Board (TRB)
IV Floor
DPI Campus
College Road
Chennai 600 006
https://www.mhc.tn.gov.in/judis
W.A. Nos.3366,3460,3247,3399 and 3449 of 2023 and 799 of 2024
R. MAHADEVAN, J.
and
MOHAMMED SHAFFIQ, J.
cad/rk
Pre-delivery common order in
W.A. Nos.3366,3460,3247,3399 and
3449 of 2023 and 799 of 2024
17.05.2024
https://www.mhc.tn.gov.in/judis
