Service matter - Ad-hoc basis appointed Computer instructors ( not with B.Ed. degree) - appointments called through Employment exchange Board - 625 posts and 175 posts - Dispute reach to High court- High court gave a conflicting decision - in clause v directed to consider the seniority in Employment Exchange Board and vi, vii , changed the entire election process except age relaxation - Apex court set aside the clauses vi and vii of High court order and held that We accordingly allow these appeals and set aside directions (vi) and (vii) of Para 53 of the impugned order dated 18.09.2013 of the High Court and direct that recruitment to the 652 vacant posts shall be made on the basis of employment exchange seniority. We also make it clear that the above direction shall also govern the 175 existing vacancies covered by the order of this Court dated 19.11.2009 if the same continue to remain vacant as on date. To all other vacancies, existing or future, as may be, the State will be at liberty to follow such policy as may be in force or considered appropriate. =
What clearly has been a long drawn tussle between under-qualified
Computer Instructors appointed on ad-hoc basis (many of them have acquired
the requisite qualification i.e. B.Ed. Degree in the meantime) and
the B.Ed. qualified candidates who are yet to be appointed but claim to
have been waiting for such appointment for long have surfaced once again,
albeit, in a different manner. The challenge in these appeals is in
respect of the directions of the Madras High Court in the common order
under challenge dated 18.09.2013, particularly, direction No. (vi) and
(vii) contained in para 53. =
To better comprehend the dimensions of the
challenge para 53 of the impugned order is reproduced hereinbelow.
“53. Summary of conclusion :-
(i) The Government was correct and justified in terminating the
services of failed computer instructors;
(ii) The failed computer instructors have no right to continue after
the conclusion of second round of regularization process;
(iii) The writ petitioners have no right to continue even temporarily,
pending regular recruitment;
(iv) The failed computer instructors are not eligible or entitled for
regularization in view of the finding recorded by the Supreme
Court in Civil Appeal No. 4187 of 2009;
(v) The names of the failed computer instructors (whose names were
earlier registered in the Employment Exchange) should be re-
entered in the Employment register of the concerned Employment
Exchange and their earlier seniority also should be restored;
(vi) The Government shall follow the present policy of recruitment of
teachers, while appointing computer instructors viz. recruitment
through Teachers Recruitment Board;
(vii) The writ petitioners are eligible to apply along with others
pursuant to the notification issued by the Teacher Recruitment
Board. The writ petitioners are not entitled for any kind of
preference. However, they are at liberty to apply for age
relaxation to apply for the recruitment and the request for age
relaxation, if any, would be considered on merits.” =
We accordingly allow these appeals and set aside directions (vi) and
(vii) of Para 53 of the impugned order dated 18.09.2013 of the High Court
and direct that recruitment to the 652 vacant posts shall be made on the
basis of employment exchange seniority. We also make it clear that the
above direction shall also govern the 175 existing vacancies covered by the
order of this Court dated 19.11.2009 if the same continue to remain vacant
as on date. To all other vacancies, existing or future, as may be, the
State will be at liberty to follow such policy as may be in force or
considered appropriate.
2014 (March. Part )judis.nic.in/supremecourt/filename=41304
P SATHASIVAM, RANJAN GOGOI, N.V. RAMANA
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3342 OF 2014
(Arising out of Special Leave Petition (C) No. 36170 OF 2013)
K. Gunavathi ... APPELLANT
(S)
VERSUS
V. Sangeeth Kumar & Ors. ... RESPONDENT (S)
WITH
CIVIL APPEAL NO. 3344 OF 2014
(Arising out of Special Leave Petition (C) No. 33677 OF 2013)
CIVIL APPEAL NO. 3345 OF 2014
(Arising out of Special Leave Petition (C) No. 35624 OF 2013)
CIVIL APPEAL NO. 3346 OF 2014
(Arising out of Special Leave Petition (C) No. 5044 OF 2014)
J U D G M E N T
RANJAN GOGOI, J.
1. Leave granted.
2. What clearly has been a long drawn tussle between under-qualified
Computer Instructors appointed on ad-hoc basis (many of them have acquired
the requisite qualification i.e. B.Ed. Degree in the meantime) and
the B.Ed. qualified candidates who are yet to be appointed but claim to
have been waiting for such appointment for long have surfaced once again,
albeit, in a different manner. The challenge in these appeals is in
respect of the directions of the Madras High Court in the common order
under challenge dated 18.09.2013, particularly, direction No. (vi) and
(vii) contained in para 53. To better comprehend the dimensions of the
challenge para 53 of the impugned order is reproduced hereinbelow.
“53. Summary of conclusion :-
(i) The Government was correct and justified in terminating the
services of failed computer instructors;
(ii) The failed computer instructors have no right to continue after
the conclusion of second round of regularization process;
(iii) The writ petitioners have no right to continue even temporarily,
pending regular recruitment;
(iv) The failed computer instructors are not eligible or entitled for
regularization in view of the finding recorded by the Supreme
Court in Civil Appeal No. 4187 of 2009;
(v) The names of the failed computer instructors (whose names were
earlier registered in the Employment Exchange) should be re-
entered in the Employment register of the concerned Employment
Exchange and their earlier seniority also should be restored;
(vi) The Government shall follow the present policy of recruitment of
teachers, while appointing computer instructors viz. recruitment
through Teachers Recruitment Board;
(vii) The writ petitioners are eligible to apply along with others
pursuant to the notification issued by the Teacher Recruitment
Board. The writ petitioners are not entitled for any kind of
preference. However, they are at liberty to apply for age
relaxation to apply for the recruitment and the request for age
relaxation, if any, would be considered on merits.”
3. The reference to the recurrent dispute between the two warring groups
seeking either to retain or obtain employment would necessarily require
this Court to traverse the complex factual matrix once again
notwithstanding the fact that in each of the challenges before the High
Court as well as this Court a sequential narration of the relevant facts
has been made. As, unless the same are repeated herein the issues will not
crystallize and, therefore, there is no option but once again to
recapitulate the events of the past.
4. Some time in the year 1999, the Government of Tamil Nadu took a
policy decision to offer computer science as an elective subject to
students of classes 11 and 12 in the government higher secondary schools of
the State. To give effect to the said policy the State Government awarded
a five year contract to the Electronic Corporation of Tamil Nadu (ELCOT) to
provide not only computer hardware and software but also the man power for
conducting the classes. ELCOT therefore engaged Computer Instructors
numbering 1332 in the first phase (1999) and 1062 in the second phase
(2000). Such placements were made through different employment agencies.
5. After the contract with ELCOT had ended in February, 2005, the State
Government by a G.O. MS No. 187 dated 4.10.2006 notified its decision to
create one post of Computer Instructor in every government higher secondary
school of the State (1880 schools) in the payscale of Rs. 5500-175-9000/-.
A decision was also taken to regularize the services of the Computer
Instructors appointed by ELCOT against the said posts subject to their
clearing a special test to be held by the Teachers Recruitment Board. The
minimum marks in order to be selected was fixed at 50%. Inbuilt in the
said decision was to relax the educational qualifications for such Computer
Instructors, namely, the B.Ed. degree which they did not possess. The
aforesaid order was challenged before the Madras High Court in a batch of
writ petitions by the B.Ed. degree holders which were allowed by order
dated 13.03.2007. In the Writ Appeal before the Division Bench (Writ
Appeal No. 1215/2007), the State Government took the stand that the
recruitment test proposed for serving Computer Instructors by waiving the
eligibility requirement of B.Ed. degree was a one time exception and that
all future recruitments would be made from eligible candidates having the
B.Ed. qualification, based on employment exchange seniority, without any
preference to the existing Computer Instructors. The Division Bench of the
High Court by order dated 22.08.2008 allowed the Writ Appeal in the above
terms.
6. The aforesaid order of the Division Bench dated 22.08.2008 was
challenged by the B.Ed. qualified teachers before this Court in Civil
Appeal No. 4187 of 2009 (arising out of SLP(C) No. 25097 of 2008). While
issuing notice on 13.10.2008, this Court had passed an interim order to the
effect that the appointment of Computer Instructors pursuant to the order
dated 22.08.2008 of the Division Bench of the High Court will be subject to
the result of the appeals. The recruitment test was held on 12.10.2008.
However, contrary to the government decision that only those candidates who
had secured 50% marks would be selected, in the result published, 1686
number of candidates were shown as selected out of which only 894 had
secured 50% or more marks whereas the remaining 792 candidates had secured
between 35% and 50% marks. It also appears that based on the aforesaid
selection the government proceeded to appoint a total of 1683 candidates.
Out of the remaining 197 posts that remained vacant (1880-1683 = 197) 22
posts were covered by various interim orders of the High Court leaving the
actual number of vacancies at 175. The figures mentioned above would be
relevant in the light of the developments that took place subsequently
which are being noted separately.
7. The fact that in the special recruitment test held on 12.10.2008
candidates who had secured between 35-50% marks were also selected and
appointed were brought to notice of this Court in the pleadings in Civil
Appeal No. 4187 of 2009. By order dated 09.07.2009, the aforesaid Civil
Appeal was disposed holding that the special recruitment test held on
12.10.2008 pursuant to the High Court’s order dated 22.08.2008, being a one
time exception and dictated by sympathetic grounds insofar as the adhoc
Computer Instructors working for long years are concerned, was justified.
But, the decision/action of the government to reduce the minimum marks and
the selection of candidates securing less than 50% marks was held to be
arbitrary and was consequently not approved. However, this Court permitted
the holding of another recruitment test (without insisting on a B.Ed.
degree) for those candidates who had secured more than 35% but less than
50% marks (hereinafter referred to as the ‘failed candidates’). It was
also made clear that the aforesaid recruitment test would again be a one
time exception and same would be held also by issuing an advertisement
besides permitting candidates sponsored by the employment exchange to take
part therein. It must also be specifically noticed that this Court by its
order dated 09.07.2009 did not expressly issue any direction for
cancellation of the appointments of the candidates who had secured less
than 50% marks. However, such a conclusion would inevitably follow from
the conclusion that the reduction of minimum marks was arbitrary and
unjustified and the fact that all such failed candidates were permitted to
appear in another recruitment test.
8. Several applications for clarification etc. of the order dated
09.07.2009 came to be filed before this Court. Of the said applications,
I.A. No. 4 of 2009 filed by the State Government would be of particular
significance insofar as the present adjudication is concerned. The prayer
made in the said I.A. are, therefore, extracted below.
“(a) Clarify and permit the State Government to conduct examination to
the candidates who have secured 35% to 49% marks in the examination
and declare the results of the candidates who secured more than 50%
marks as eligible candidates for appointment.
(b) Clarify and permit the State Government to recruit Vocational
Computer Instructors for the existing vacancies 175 and future
vacancies for the post of Compute Instructors through the Employment
Exchange based on the seniority with the Employment Exchange as per
the policy decision and also as per the G.O. Ms. 290, School Education
Department, dated 06.12.2007 and G.O. Ms. No. 66, School Education
Department, dated 02.03.2009;
(c) Direct the correction of the figures appearing in paras 10, 12 &
14 of the Judgment dated 09.07.2009 passed by this Hon’ble Court in
C.A. No. 4187 of 2009 as “857 to read as 894 and 829 to read as 792”.”
9. This Court, in para 11 of its order dated 19.11.2009 while observing
that it was not inclined to alter or review its earlier order dated
09.07.2009, however, clarified the said order by permitting the State
Government to:
“(a) ….. ….. ….. …..
(i) ….. ….. ….. …...
(ii) recruit Vocational Computer Instructors for the existing 175
vacancies and future vacancies for the post of Computer
Instructors through the Employment Exchange based on the
seniority with the Employment Exchange as per the policy
decision of the State Government as well as Government Orders
applicable to appointment to the post of Computer Instructors.
(b) …… ….. ….. …..”
10. It will be necessary to take note of the fact that prayer (b) in I.A.
No. 4 of 2009 and clarification (a) (ii) in the order dated 19.11.2009 was
made in the light of a government policy then in force as detailed in G.O.
(MS) No. 290 dated 06.12.2007 and G.O. (MS) No. 66 dated 02.03.2009 issued
by the School Education Department. Under the aforesaid G.Os. vacancies in
the post of Computer Instructors were to be filled up on the basis of the
seniority in the employment exchange.
11. Pursuant to the order of this Court dated 9.7.2009 read with the
clarificatory order dated 19.11.2009, a second recruitment test was held on
24.01.2010. The said test, for reasons not known, was however confined
only to those Computer Instructors who had secured between 35-50% marks in
the first recruitment test i.e. the “failed candidates” though in terms of
the order of this Court dated 9.7.2009 there were three categories of
candidates who were entitled to participate in the said recruitment test
i.e. ‘failed candidates’, ‘open market candidates’ and ‘employment exchange
candidates’. The conduct of the recruitment test in a limited manner also
did not come under challenge before any forum. Out of the 792 candidates
(failed candidates) who had appeared in the second recruitment test only
125 secured 50% marks and above and 667 candidates once again failed. A
writ petition i.e. WP No. 7567 of 2010 was filed before the Madras High
Court to declare the second recruitment test as null and void due to
certain anomalies in the answer key. The said writ petition was dismissed.
In the appeal filed (Writ Appeal No. 837 of 2010), by order dated
20.12.2012, the appellate Bench of the High Court while rejecting the
prayer for a fresh examination had directed the Teachers Recruitment Board
to reassess the merit of the candidates by eliminating 20 defective
questions. Pursuant to the above exercise undertaken, only 15 out of the
667 failed candidates had passed, thereby, reducing the number of failed
candidates to 652. As the services of the aforesaid failed candidates were
being allowed to continue instead of being terminated and as the selection
for the resultant vacancies consequential to such termination was not being
undertaken, the B.Ed. qualified candidates filed a contempt petition before
the High Court (Contempt Petition No. 1270 of 2013) alleging disobedience
and contending that the vacancies (652) are required to be filled up on the
basis of the employment exchange seniority. During the pendency of the
said proceeding the services of the 652 candidates (twice failed) were
terminated. Against the aforesaid terminations, several writ petitions
were filed wherein a common interim order dated 30.04.2013 was passed by
holding that :-
“(i) The petitioners have no right either to question their
termination or to seek regularization. But till a regular process of
selection is conducted by the Government, the schools cannot be left
without Teachers and hence till a regular recruitment takes place, the
writ petitioners shall continue.
(ii) As directed by the Division Bench of this Court, by order dated
20.12.2012, the Government shall expedite the process of regular
recruitment.
(iii) On the question as to what method of recruitment the Government
should follow, I would leave it to the Government to decide in the
light of the various judgments of the Supreme Court and the Full Bench
of this Court.”
12. Aggrieved by the aforesaid directions, both the B.Ed. degree holders
and the terminated teachers had filed Writ Appeals which were numbered as
W.A. No. 1307 of 2013 and W.A.Nos.1088 and 1089 of 2013 respectively. All
the writ petitions that were filed by the terminated Computer Instructors
were heard alongwith the writ appeals. All such cases were disposed of by
the impugned common order dated 18.09.2003. It is the validity of the
aforesaid common order, particularly directions (vi) and (vii) contained in
para 53 thereof (extracted above), that has been assailed in the present
appeals. Three of the civil appeals (arising out of SLP(C) Nos.
36170/2013, 33677/2013 and 35624/2013) have been filed by the B.Ed. degree
holders whereas the fourth civil appeal (arising out of SLP(C) No.
5044/2014) is by a terminated teacher who seeks to make a common ground
with the B.Ed. degree holders as the said appellant had in the meantime
obtained a B.Ed. degree.
13. The challenge to the directions contained in para 53 (vi) and (vii)
of the impugned order being based on the appellants’ perception of true
purport and effect of the clarification made by this Court by order dated
19.11.2009 under paragraph 11(a) (ii) (already extracted) the same will
require consideration, particularly, in the light of the stand taken by
the State in its counter affidavit dated 31.1.2014 filed before this Court.
The above, we may indicate, is the scope of the adjudication in the cases
before us.
14. In the order dated 19.11.2009 this Court had made it clear that it is
in no way inclined to alter or review the earlier decision dated
09.07.2009. The aforesaid order dated 09.07.2009 did not deal with the
vacancies (175) that had existed after 1683 out of the 1880 posts were
filled up during the pendency of Civil Appeal No. 4187 of 2009; neither did
the said order deal with the manner of filling up of any of the posts that
would require to be filled up in case any of the failed candidates, once
again, were to be unsuccessful in the special recruitment test ordered by
this Court as a one time measure by the order dated 09.07.2009. It is in
these circumstances that the I.A. in question was filed by the State of
Tamil Nadu on 16.09.2009 setting out the relevant GOs, namely, GO (MS) No.
290 dated 06.12.2007 and No. 66 dated 02.03.2009 under which the vacant
posts were to be filled up through the employment exchange. In para 7 of
the I.A. it was specifically mentioned that by means of the present
application the State “seeks a clarification and a direction that it may be
permitted to conduct the examinations for the unsuccessful candidates and
the remaining vacancies viz. 175 candidates may be permitted to be
recruited as per the seniority in the employment exchange. In addition to
the above after the tests in respect of the candidates who secured marks
between 35% and 50% are concluded such of the candidates who secure less
than 50% marks would be declared ineligible for consideration and such
vacancies would also be permitted to be filled in the order of seniority in
the employment exchange.” This Court, under para 11 (a)(ii) of the order
dated 19.11.2009, granted permission to the State Government to recruit
vocational Computer Instructors for the existing 175 vacancies and future
vacancies through the employment exchange “as per the policy decision of
the State Government as well as Government Orders applicable to appointment
to the post of Computer Instructors.”
15. On the basis of the above clarification dated 19.11.2009 the
appellants claim that the 652 vacancies now available are required to be
filled on the basis of the seniority in the employment exchange and not by
a process of open recruitment. The aforesaid claim has been negatived by
the High Court by the impugned order (paragraph 46) on the ground that the
government policy contained in G.O. (MS) No. 290 dated 06.12.2007 and G.O.
(MS) No. 66 dated 02.03.2009 is no longer in force and that the government
is at liberty to adopt a different policy. The High Court has also found
that the policy as on date is to conduct a written test through the
Teachers Recruitment Board by calling for applications from the open market
as well as from the employment exchange. It has been further observed that
the serving Computer Instructors (failed candidates) would be entitled to
apply pursuant to such notice/advertisement as may be issued by the
Teachers Recruitment Board and would also be entitled to seek relaxation of
their age which claims are to be decided strictly on merit. The High Court
has however made it clear that the serving Computer Instructors would not
be entitled to any kind of preference.
16. The stand of the State in its counter affidavit dated 31.01.1994
(paragraph 17) may now be taken note of. It has been averred by the State
that after coming into force of the Right to Children and Compulsory
Education Act, 2009 (RTE Act) recruitment of Secondary Grade and
Graduate Teachers (BT Assistants) (Classes I to VII) is being made by
holding a teacher’s eligibility test. According to the State, G.O.No.175
School Education Department dated 18.11.2011 has been issued for
recruitment of post-graduate Assistant Teachers in higher secondary classes
“through written examination and certificate verification instead of the
earlier method of recruiting teachers by following the employment exchange
seniority.” It is further averred that, as computer instructors teach in
higher secondary classes, in order to provide quality education, the
Government has introduced competitive examination to recruit teachers in
all categories. According to the State in implementation of the High
Court’s order dated 18.09.2013, G.O. No.296 School Education Department
dated 04.12.2013 has been issued directing the Teachers Recruitment Board
to fill up the 652 posts of computer instructors through a competitive
examination.
17. The claims of the State, noticed above, is seriously disputed by the
petitioners. Referring to the affidavit dated 12.8.2013 filed by the State
before the High Court in Contempt Petition No.1270 of 2013 and the order of
the same date passed in the said proceeding it is pointed out that even on
12.08.2013 it was admitted by the State before the High Court that it is
committed to complete the recruitment in question on the basis of the
employment exchange seniority and further that the High Court had granted
time to the State to commence and complete a substantial part of the
recruitment process within a period of two months and, thereafter, file an
action taken report before the Court. It is pointed out that pursuant to
order dated 12.8.2013, action taken report dated 12.10.2013 has been filed
stating that the whole matter is being examined by the Advocate General and
his views are awaited. This is despite the directions in the impugned
order dated 18.9.2013. On the basis of the above, it is contended that
adoption of any other method of recruitment save and except employment
exchange seniority will not be justified and the G.O. No.296 dated
04.12.2013 prescribing open/competitive examination is required to be
interdicted.
18. An argument has also been advanced on behalf of the petitioners that
computer instructors are not teachers and therefore even if a policy of
recruitment of teachers by open competition is presently in vogue the same
will not apply to the post of computer instructor. The aforesaid argument
has been sought to be fortified on the basis of the averments made in this
regard by the State of Tamil Nadu in its counter affidavit in C.A. No.4187
of 2009 (Arising out of SLP (C) No.25097 of 2008).
19. The above issue i.e. that Computer Instructors are not teachers need
to hardly detain the Court. Not only the context in which the above
statements were made must be kept in mind, the contention ex-facie deserves
rejection in view of high degree of computer proficiency that is required
in the contemporary world.
20. The affidavit filed on behalf of the State in contempt petition
No.1270/2013 as well as the order of even date passed by the High Court in
the said proceeding indicates that the State in an earlier affidavit dated
20.6.2013 had indicated that it is necessary to fill up the 652 vacancies
of computer instructors through the Teachers Recruitment Board by
conducting written examination. However in its order dated 2.8.2013 the
High Court took the view that to such recruitments the clarificatory order
dated 19.11.2009 of this Court should be adhered to and had fixed the
matter on 12.8.2013 to enable the State to inform the Court the time that
would be required to complete the recruitment process in terms of the
direction of this Court dated 19.11.2009.
21. Accordingly, in para 10 of the affidavit dated 12.8.2013 of the State
it was stated as follows:
“It is submit that, in view of the above to fill up 652 vacancies in
the post of Computer instructors based on the Seniority with
employment exchange through Teacher Recruitment Board in accordance
with the Government Order in G.O. (Ms) No.66, school Education
Department, dated 02.03.2009 and G.O. (Ms) No.332, School Education
Department dated 11.12.2009, the Teachers Recruitment Board needs
considerable time to complete the process by following the procedure
from the time of notification till the publication of the result.
In these circumstances, it is prayed that this Hon’ble High
Court may be pleased to extend the time granted by the Hon’ble High
Court in W.A. No.837/2010 for further 6 months to implement the orders
of this High Court and thus render justice.”
22. Thereafter, the High Court proceeded on the basis that the State is
committed to fill up the vacancies on the basis of the employment exchange
seniority and by order dated 12.08.2013 granted two months time to enable
the State to initiate the recruitment process and complete a substantial
part thereof, whereafter, the compliance report was to be filed which, as
has been noticed, was submitted on 12.10.2013.
23. The record of the proceedings of Contempt Case No.1270/2013,
therefore, clearly indicates that the High Court, while rendering the order
dated 12.8.2013, was of the view that the recruitment should be on the
basis of employment exchange seniority. This is not notwithstanding the
stand of the State to the contrary. Thereafter, the order in the present
group of cases was passed on 18.9.2013. It appears that before doing so,
the stand of the State with regard to the change of policy of recruitment
and the efficacy of the GO No.290 dated 6.12.2007 and GO No.66 dated
2.3.2009 was again considered and the impugned directions for completing
the recruitment not through the employment exchange but by open competition
through the Teachers Recruitment Board were issued.
24. Though Contempt Case No.1270/2013 and the present group of cases are
independent of each other, the proximity of the controversy arising in both
cases i.e. the mode and manner of recruitment of Computer Instructors,
cannot be underscored. There is seemingly different understandings of the
same issue in the two sets of proceedings. No explanation is available in
the impugned order to justify the change of judicial vision. In fact, in
the order dated 18.09.2013 there is no reference to the order dated
12.8.2013 in the contempt case. There is also no indication, whatsoever,
as to what could have been the compelling reason(s) that had weighed with
the Court to depart from its earlier order dated 12.8.2013 passed after
full consideration of the claims of the State with regard to change of
policy. Furthermore, if according to the State there had been a change of
policy with regard to mode and manner of recruitment, the GOs No.290 dated
6.12.2007 and No.66 dated 2.3.2009 ought to have been cancelled. Neither
any government order of cancellation is before the Court nor is there any
statement that such a cancellation has been made. In the counter
affidavit of the State dated 21.01.2014 filed before this Court though
there is a mention of G.O.No.175 dated 18.12.2011 providing for
recruitment of post-graduate assistant teachers in higher secondary
classes through written examination instead of the earlier method of
employment exchange seniority, the said G.O. has not been placed on record.
Even if the facts claimed on the basis of the said G.O. No.175 are
assumed, there is no explanation as to why the Teachers Recruitment Board
had issued advertisement No.1/2013 dated 8.5.2013 specifying in Clause 9
thereof that the vacancies covered by the said advertisement are to be
filled up on the basis of the State level employment registration
seniority. Incidentally the said Advertisement covered a sizeable number
of posts (approx. 800) in different vocational streams. In view of the
above, we have not been able to persuade ourselves to take the view that
the recruitment to 652 posts should be made by a process other than what
was directed by the clarificatory order dated 19.11.2009.
25. The order dated 19.11.2009 directing filling up of 175 existing
vacancies and future vacancies of Computer Instructors on the basis of the
employment exchange seniority was a conscious decision taken in departure
from the virtually settled position in law that recruitment to public
service, normally, ought to be by open advertisement and requisitions
through the employment exchange can at best be supplemental. (See: Excise
Superintendent Malkapatnam, Krishna Distgrict, A.P. Vs. K.B.N. Visweshwara
Rao & Ors.[1], Arun Kumar Nayak Vs. Union of India & Ors.[2] and State of
Orissa & Anr. Vs. Mamata Mohanty[3]). Such departure was felt necessary
due to the compulsive needs dictated by the peculiar facts of the case. At
that point of time, out of the 1880 available posts 1683 posts had already
been filled up by the adhoc and underqualified Computer Instructors already
working leaving only 175 vacancies and an unknown number of further
vacancies which was contingent on the result of the second recruitment test
ordered by this Court as a one time measure. Both the recruitment tests,
ordered by the High Court as well as this Court, were exclusive to the
adhoc and unqualified persons leaving a large number of qualified
candidates like the petitioners out of the arena of consideration.
26. What would be the extent of the ‘adverse’ effect on the failed
teachers if the remaining appointments are to be made on the basis of
employment exchange seniority cannot be determined with any degree of
accuracy at this stage inasmuch as a large number of such persons had
qualified in the meantime and by virtue of clause (v) of Para 53 of the
impugned order, the names of the failed computer instructors who were
earlier registered in the employment exchanges have been directed to be re-
entered and their earlier seniority restored. While it is also correct
that by ordering recruitment on the basis of employment exchange seniority
other eligible candidates who could have taken part in the competitive
examination would loose out, no such person is presently before us to
persuade us to take the view that for the purpose of recruitment to the 652
posts of Computer Instructors the earlier order of this Court dated
19.11.2009 should not prevail.
27. We accordingly allow these appeals and set aside directions (vi) and
(vii) of Para 53 of the impugned order dated 18.09.2013 of the High Court
and direct that recruitment to the 652 vacant posts shall be made on the
basis of employment exchange seniority. We also make it clear that the
above direction shall also govern the 175 existing vacancies covered by the
order of this Court dated 19.11.2009 if the same continue to remain vacant
as on date. To all other vacancies, existing or future, as may be, the
State will be at liberty to follow such policy as may be in force or
considered appropriate.
...…………………………CJI.
[P. SATHASIVAM]
.........………………………J.
[RANJAN GOGOI]
…..........……………………J.
[N. V. RAMANA]
NEW DELHI,
MARCH 7, 2014.
-----------------------
[1] (1996) 6 SCC 216
[2] (2006) 8 SCC 111
[3] (2011) 3 SCC 436
-----------------------
24
What clearly has been a long drawn tussle between under-qualified
Computer Instructors appointed on ad-hoc basis (many of them have acquired
the requisite qualification i.e. B.Ed. Degree in the meantime) and
the B.Ed. qualified candidates who are yet to be appointed but claim to
have been waiting for such appointment for long have surfaced once again,
albeit, in a different manner. The challenge in these appeals is in
respect of the directions of the Madras High Court in the common order
under challenge dated 18.09.2013, particularly, direction No. (vi) and
(vii) contained in para 53. =
To better comprehend the dimensions of the
challenge para 53 of the impugned order is reproduced hereinbelow.
“53. Summary of conclusion :-
(i) The Government was correct and justified in terminating the
services of failed computer instructors;
(ii) The failed computer instructors have no right to continue after
the conclusion of second round of regularization process;
(iii) The writ petitioners have no right to continue even temporarily,
pending regular recruitment;
(iv) The failed computer instructors are not eligible or entitled for
regularization in view of the finding recorded by the Supreme
Court in Civil Appeal No. 4187 of 2009;
(v) The names of the failed computer instructors (whose names were
earlier registered in the Employment Exchange) should be re-
entered in the Employment register of the concerned Employment
Exchange and their earlier seniority also should be restored;
(vi) The Government shall follow the present policy of recruitment of
teachers, while appointing computer instructors viz. recruitment
through Teachers Recruitment Board;
(vii) The writ petitioners are eligible to apply along with others
pursuant to the notification issued by the Teacher Recruitment
Board. The writ petitioners are not entitled for any kind of
preference. However, they are at liberty to apply for age
relaxation to apply for the recruitment and the request for age
relaxation, if any, would be considered on merits.” =
We accordingly allow these appeals and set aside directions (vi) and
(vii) of Para 53 of the impugned order dated 18.09.2013 of the High Court
and direct that recruitment to the 652 vacant posts shall be made on the
basis of employment exchange seniority. We also make it clear that the
above direction shall also govern the 175 existing vacancies covered by the
order of this Court dated 19.11.2009 if the same continue to remain vacant
as on date. To all other vacancies, existing or future, as may be, the
State will be at liberty to follow such policy as may be in force or
considered appropriate.
2014 (March. Part )judis.nic.in/supremecourt/filename=41304
P SATHASIVAM, RANJAN GOGOI, N.V. RAMANA
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3342 OF 2014
(Arising out of Special Leave Petition (C) No. 36170 OF 2013)
K. Gunavathi ... APPELLANT
(S)
VERSUS
V. Sangeeth Kumar & Ors. ... RESPONDENT (S)
WITH
CIVIL APPEAL NO. 3344 OF 2014
(Arising out of Special Leave Petition (C) No. 33677 OF 2013)
CIVIL APPEAL NO. 3345 OF 2014
(Arising out of Special Leave Petition (C) No. 35624 OF 2013)
CIVIL APPEAL NO. 3346 OF 2014
(Arising out of Special Leave Petition (C) No. 5044 OF 2014)
J U D G M E N T
RANJAN GOGOI, J.
1. Leave granted.
2. What clearly has been a long drawn tussle between under-qualified
Computer Instructors appointed on ad-hoc basis (many of them have acquired
the requisite qualification i.e. B.Ed. Degree in the meantime) and
the B.Ed. qualified candidates who are yet to be appointed but claim to
have been waiting for such appointment for long have surfaced once again,
albeit, in a different manner. The challenge in these appeals is in
respect of the directions of the Madras High Court in the common order
under challenge dated 18.09.2013, particularly, direction No. (vi) and
(vii) contained in para 53. To better comprehend the dimensions of the
challenge para 53 of the impugned order is reproduced hereinbelow.
“53. Summary of conclusion :-
(i) The Government was correct and justified in terminating the
services of failed computer instructors;
(ii) The failed computer instructors have no right to continue after
the conclusion of second round of regularization process;
(iii) The writ petitioners have no right to continue even temporarily,
pending regular recruitment;
(iv) The failed computer instructors are not eligible or entitled for
regularization in view of the finding recorded by the Supreme
Court in Civil Appeal No. 4187 of 2009;
(v) The names of the failed computer instructors (whose names were
earlier registered in the Employment Exchange) should be re-
entered in the Employment register of the concerned Employment
Exchange and their earlier seniority also should be restored;
(vi) The Government shall follow the present policy of recruitment of
teachers, while appointing computer instructors viz. recruitment
through Teachers Recruitment Board;
(vii) The writ petitioners are eligible to apply along with others
pursuant to the notification issued by the Teacher Recruitment
Board. The writ petitioners are not entitled for any kind of
preference. However, they are at liberty to apply for age
relaxation to apply for the recruitment and the request for age
relaxation, if any, would be considered on merits.”
3. The reference to the recurrent dispute between the two warring groups
seeking either to retain or obtain employment would necessarily require
this Court to traverse the complex factual matrix once again
notwithstanding the fact that in each of the challenges before the High
Court as well as this Court a sequential narration of the relevant facts
has been made. As, unless the same are repeated herein the issues will not
crystallize and, therefore, there is no option but once again to
recapitulate the events of the past.
4. Some time in the year 1999, the Government of Tamil Nadu took a
policy decision to offer computer science as an elective subject to
students of classes 11 and 12 in the government higher secondary schools of
the State. To give effect to the said policy the State Government awarded
a five year contract to the Electronic Corporation of Tamil Nadu (ELCOT) to
provide not only computer hardware and software but also the man power for
conducting the classes. ELCOT therefore engaged Computer Instructors
numbering 1332 in the first phase (1999) and 1062 in the second phase
(2000). Such placements were made through different employment agencies.
5. After the contract with ELCOT had ended in February, 2005, the State
Government by a G.O. MS No. 187 dated 4.10.2006 notified its decision to
create one post of Computer Instructor in every government higher secondary
school of the State (1880 schools) in the payscale of Rs. 5500-175-9000/-.
A decision was also taken to regularize the services of the Computer
Instructors appointed by ELCOT against the said posts subject to their
clearing a special test to be held by the Teachers Recruitment Board. The
minimum marks in order to be selected was fixed at 50%. Inbuilt in the
said decision was to relax the educational qualifications for such Computer
Instructors, namely, the B.Ed. degree which they did not possess. The
aforesaid order was challenged before the Madras High Court in a batch of
writ petitions by the B.Ed. degree holders which were allowed by order
dated 13.03.2007. In the Writ Appeal before the Division Bench (Writ
Appeal No. 1215/2007), the State Government took the stand that the
recruitment test proposed for serving Computer Instructors by waiving the
eligibility requirement of B.Ed. degree was a one time exception and that
all future recruitments would be made from eligible candidates having the
B.Ed. qualification, based on employment exchange seniority, without any
preference to the existing Computer Instructors. The Division Bench of the
High Court by order dated 22.08.2008 allowed the Writ Appeal in the above
terms.
6. The aforesaid order of the Division Bench dated 22.08.2008 was
challenged by the B.Ed. qualified teachers before this Court in Civil
Appeal No. 4187 of 2009 (arising out of SLP(C) No. 25097 of 2008). While
issuing notice on 13.10.2008, this Court had passed an interim order to the
effect that the appointment of Computer Instructors pursuant to the order
dated 22.08.2008 of the Division Bench of the High Court will be subject to
the result of the appeals. The recruitment test was held on 12.10.2008.
However, contrary to the government decision that only those candidates who
had secured 50% marks would be selected, in the result published, 1686
number of candidates were shown as selected out of which only 894 had
secured 50% or more marks whereas the remaining 792 candidates had secured
between 35% and 50% marks. It also appears that based on the aforesaid
selection the government proceeded to appoint a total of 1683 candidates.
Out of the remaining 197 posts that remained vacant (1880-1683 = 197) 22
posts were covered by various interim orders of the High Court leaving the
actual number of vacancies at 175. The figures mentioned above would be
relevant in the light of the developments that took place subsequently
which are being noted separately.
7. The fact that in the special recruitment test held on 12.10.2008
candidates who had secured between 35-50% marks were also selected and
appointed were brought to notice of this Court in the pleadings in Civil
Appeal No. 4187 of 2009. By order dated 09.07.2009, the aforesaid Civil
Appeal was disposed holding that the special recruitment test held on
12.10.2008 pursuant to the High Court’s order dated 22.08.2008, being a one
time exception and dictated by sympathetic grounds insofar as the adhoc
Computer Instructors working for long years are concerned, was justified.
But, the decision/action of the government to reduce the minimum marks and
the selection of candidates securing less than 50% marks was held to be
arbitrary and was consequently not approved. However, this Court permitted
the holding of another recruitment test (without insisting on a B.Ed.
degree) for those candidates who had secured more than 35% but less than
50% marks (hereinafter referred to as the ‘failed candidates’). It was
also made clear that the aforesaid recruitment test would again be a one
time exception and same would be held also by issuing an advertisement
besides permitting candidates sponsored by the employment exchange to take
part therein. It must also be specifically noticed that this Court by its
order dated 09.07.2009 did not expressly issue any direction for
cancellation of the appointments of the candidates who had secured less
than 50% marks. However, such a conclusion would inevitably follow from
the conclusion that the reduction of minimum marks was arbitrary and
unjustified and the fact that all such failed candidates were permitted to
appear in another recruitment test.
8. Several applications for clarification etc. of the order dated
09.07.2009 came to be filed before this Court. Of the said applications,
I.A. No. 4 of 2009 filed by the State Government would be of particular
significance insofar as the present adjudication is concerned. The prayer
made in the said I.A. are, therefore, extracted below.
“(a) Clarify and permit the State Government to conduct examination to
the candidates who have secured 35% to 49% marks in the examination
and declare the results of the candidates who secured more than 50%
marks as eligible candidates for appointment.
(b) Clarify and permit the State Government to recruit Vocational
Computer Instructors for the existing vacancies 175 and future
vacancies for the post of Compute Instructors through the Employment
Exchange based on the seniority with the Employment Exchange as per
the policy decision and also as per the G.O. Ms. 290, School Education
Department, dated 06.12.2007 and G.O. Ms. No. 66, School Education
Department, dated 02.03.2009;
(c) Direct the correction of the figures appearing in paras 10, 12 &
14 of the Judgment dated 09.07.2009 passed by this Hon’ble Court in
C.A. No. 4187 of 2009 as “857 to read as 894 and 829 to read as 792”.”
9. This Court, in para 11 of its order dated 19.11.2009 while observing
that it was not inclined to alter or review its earlier order dated
09.07.2009, however, clarified the said order by permitting the State
Government to:
“(a) ….. ….. ….. …..
(i) ….. ….. ….. …...
(ii) recruit Vocational Computer Instructors for the existing 175
vacancies and future vacancies for the post of Computer
Instructors through the Employment Exchange based on the
seniority with the Employment Exchange as per the policy
decision of the State Government as well as Government Orders
applicable to appointment to the post of Computer Instructors.
(b) …… ….. ….. …..”
10. It will be necessary to take note of the fact that prayer (b) in I.A.
No. 4 of 2009 and clarification (a) (ii) in the order dated 19.11.2009 was
made in the light of a government policy then in force as detailed in G.O.
(MS) No. 290 dated 06.12.2007 and G.O. (MS) No. 66 dated 02.03.2009 issued
by the School Education Department. Under the aforesaid G.Os. vacancies in
the post of Computer Instructors were to be filled up on the basis of the
seniority in the employment exchange.
11. Pursuant to the order of this Court dated 9.7.2009 read with the
clarificatory order dated 19.11.2009, a second recruitment test was held on
24.01.2010. The said test, for reasons not known, was however confined
only to those Computer Instructors who had secured between 35-50% marks in
the first recruitment test i.e. the “failed candidates” though in terms of
the order of this Court dated 9.7.2009 there were three categories of
candidates who were entitled to participate in the said recruitment test
i.e. ‘failed candidates’, ‘open market candidates’ and ‘employment exchange
candidates’. The conduct of the recruitment test in a limited manner also
did not come under challenge before any forum. Out of the 792 candidates
(failed candidates) who had appeared in the second recruitment test only
125 secured 50% marks and above and 667 candidates once again failed. A
writ petition i.e. WP No. 7567 of 2010 was filed before the Madras High
Court to declare the second recruitment test as null and void due to
certain anomalies in the answer key. The said writ petition was dismissed.
In the appeal filed (Writ Appeal No. 837 of 2010), by order dated
20.12.2012, the appellate Bench of the High Court while rejecting the
prayer for a fresh examination had directed the Teachers Recruitment Board
to reassess the merit of the candidates by eliminating 20 defective
questions. Pursuant to the above exercise undertaken, only 15 out of the
667 failed candidates had passed, thereby, reducing the number of failed
candidates to 652. As the services of the aforesaid failed candidates were
being allowed to continue instead of being terminated and as the selection
for the resultant vacancies consequential to such termination was not being
undertaken, the B.Ed. qualified candidates filed a contempt petition before
the High Court (Contempt Petition No. 1270 of 2013) alleging disobedience
and contending that the vacancies (652) are required to be filled up on the
basis of the employment exchange seniority. During the pendency of the
said proceeding the services of the 652 candidates (twice failed) were
terminated. Against the aforesaid terminations, several writ petitions
were filed wherein a common interim order dated 30.04.2013 was passed by
holding that :-
“(i) The petitioners have no right either to question their
termination or to seek regularization. But till a regular process of
selection is conducted by the Government, the schools cannot be left
without Teachers and hence till a regular recruitment takes place, the
writ petitioners shall continue.
(ii) As directed by the Division Bench of this Court, by order dated
20.12.2012, the Government shall expedite the process of regular
recruitment.
(iii) On the question as to what method of recruitment the Government
should follow, I would leave it to the Government to decide in the
light of the various judgments of the Supreme Court and the Full Bench
of this Court.”
12. Aggrieved by the aforesaid directions, both the B.Ed. degree holders
and the terminated teachers had filed Writ Appeals which were numbered as
W.A. No. 1307 of 2013 and W.A.Nos.1088 and 1089 of 2013 respectively. All
the writ petitions that were filed by the terminated Computer Instructors
were heard alongwith the writ appeals. All such cases were disposed of by
the impugned common order dated 18.09.2003. It is the validity of the
aforesaid common order, particularly directions (vi) and (vii) contained in
para 53 thereof (extracted above), that has been assailed in the present
appeals. Three of the civil appeals (arising out of SLP(C) Nos.
36170/2013, 33677/2013 and 35624/2013) have been filed by the B.Ed. degree
holders whereas the fourth civil appeal (arising out of SLP(C) No.
5044/2014) is by a terminated teacher who seeks to make a common ground
with the B.Ed. degree holders as the said appellant had in the meantime
obtained a B.Ed. degree.
13. The challenge to the directions contained in para 53 (vi) and (vii)
of the impugned order being based on the appellants’ perception of true
purport and effect of the clarification made by this Court by order dated
19.11.2009 under paragraph 11(a) (ii) (already extracted) the same will
require consideration, particularly, in the light of the stand taken by
the State in its counter affidavit dated 31.1.2014 filed before this Court.
The above, we may indicate, is the scope of the adjudication in the cases
before us.
14. In the order dated 19.11.2009 this Court had made it clear that it is
in no way inclined to alter or review the earlier decision dated
09.07.2009. The aforesaid order dated 09.07.2009 did not deal with the
vacancies (175) that had existed after 1683 out of the 1880 posts were
filled up during the pendency of Civil Appeal No. 4187 of 2009; neither did
the said order deal with the manner of filling up of any of the posts that
would require to be filled up in case any of the failed candidates, once
again, were to be unsuccessful in the special recruitment test ordered by
this Court as a one time measure by the order dated 09.07.2009. It is in
these circumstances that the I.A. in question was filed by the State of
Tamil Nadu on 16.09.2009 setting out the relevant GOs, namely, GO (MS) No.
290 dated 06.12.2007 and No. 66 dated 02.03.2009 under which the vacant
posts were to be filled up through the employment exchange. In para 7 of
the I.A. it was specifically mentioned that by means of the present
application the State “seeks a clarification and a direction that it may be
permitted to conduct the examinations for the unsuccessful candidates and
the remaining vacancies viz. 175 candidates may be permitted to be
recruited as per the seniority in the employment exchange. In addition to
the above after the tests in respect of the candidates who secured marks
between 35% and 50% are concluded such of the candidates who secure less
than 50% marks would be declared ineligible for consideration and such
vacancies would also be permitted to be filled in the order of seniority in
the employment exchange.” This Court, under para 11 (a)(ii) of the order
dated 19.11.2009, granted permission to the State Government to recruit
vocational Computer Instructors for the existing 175 vacancies and future
vacancies through the employment exchange “as per the policy decision of
the State Government as well as Government Orders applicable to appointment
to the post of Computer Instructors.”
15. On the basis of the above clarification dated 19.11.2009 the
appellants claim that the 652 vacancies now available are required to be
filled on the basis of the seniority in the employment exchange and not by
a process of open recruitment. The aforesaid claim has been negatived by
the High Court by the impugned order (paragraph 46) on the ground that the
government policy contained in G.O. (MS) No. 290 dated 06.12.2007 and G.O.
(MS) No. 66 dated 02.03.2009 is no longer in force and that the government
is at liberty to adopt a different policy. The High Court has also found
that the policy as on date is to conduct a written test through the
Teachers Recruitment Board by calling for applications from the open market
as well as from the employment exchange. It has been further observed that
the serving Computer Instructors (failed candidates) would be entitled to
apply pursuant to such notice/advertisement as may be issued by the
Teachers Recruitment Board and would also be entitled to seek relaxation of
their age which claims are to be decided strictly on merit. The High Court
has however made it clear that the serving Computer Instructors would not
be entitled to any kind of preference.
16. The stand of the State in its counter affidavit dated 31.01.1994
(paragraph 17) may now be taken note of. It has been averred by the State
that after coming into force of the Right to Children and Compulsory
Education Act, 2009 (RTE Act) recruitment of Secondary Grade and
Graduate Teachers (BT Assistants) (Classes I to VII) is being made by
holding a teacher’s eligibility test. According to the State, G.O.No.175
School Education Department dated 18.11.2011 has been issued for
recruitment of post-graduate Assistant Teachers in higher secondary classes
“through written examination and certificate verification instead of the
earlier method of recruiting teachers by following the employment exchange
seniority.” It is further averred that, as computer instructors teach in
higher secondary classes, in order to provide quality education, the
Government has introduced competitive examination to recruit teachers in
all categories. According to the State in implementation of the High
Court’s order dated 18.09.2013, G.O. No.296 School Education Department
dated 04.12.2013 has been issued directing the Teachers Recruitment Board
to fill up the 652 posts of computer instructors through a competitive
examination.
17. The claims of the State, noticed above, is seriously disputed by the
petitioners. Referring to the affidavit dated 12.8.2013 filed by the State
before the High Court in Contempt Petition No.1270 of 2013 and the order of
the same date passed in the said proceeding it is pointed out that even on
12.08.2013 it was admitted by the State before the High Court that it is
committed to complete the recruitment in question on the basis of the
employment exchange seniority and further that the High Court had granted
time to the State to commence and complete a substantial part of the
recruitment process within a period of two months and, thereafter, file an
action taken report before the Court. It is pointed out that pursuant to
order dated 12.8.2013, action taken report dated 12.10.2013 has been filed
stating that the whole matter is being examined by the Advocate General and
his views are awaited. This is despite the directions in the impugned
order dated 18.9.2013. On the basis of the above, it is contended that
adoption of any other method of recruitment save and except employment
exchange seniority will not be justified and the G.O. No.296 dated
04.12.2013 prescribing open/competitive examination is required to be
interdicted.
18. An argument has also been advanced on behalf of the petitioners that
computer instructors are not teachers and therefore even if a policy of
recruitment of teachers by open competition is presently in vogue the same
will not apply to the post of computer instructor. The aforesaid argument
has been sought to be fortified on the basis of the averments made in this
regard by the State of Tamil Nadu in its counter affidavit in C.A. No.4187
of 2009 (Arising out of SLP (C) No.25097 of 2008).
19. The above issue i.e. that Computer Instructors are not teachers need
to hardly detain the Court. Not only the context in which the above
statements were made must be kept in mind, the contention ex-facie deserves
rejection in view of high degree of computer proficiency that is required
in the contemporary world.
20. The affidavit filed on behalf of the State in contempt petition
No.1270/2013 as well as the order of even date passed by the High Court in
the said proceeding indicates that the State in an earlier affidavit dated
20.6.2013 had indicated that it is necessary to fill up the 652 vacancies
of computer instructors through the Teachers Recruitment Board by
conducting written examination. However in its order dated 2.8.2013 the
High Court took the view that to such recruitments the clarificatory order
dated 19.11.2009 of this Court should be adhered to and had fixed the
matter on 12.8.2013 to enable the State to inform the Court the time that
would be required to complete the recruitment process in terms of the
direction of this Court dated 19.11.2009.
21. Accordingly, in para 10 of the affidavit dated 12.8.2013 of the State
it was stated as follows:
“It is submit that, in view of the above to fill up 652 vacancies in
the post of Computer instructors based on the Seniority with
employment exchange through Teacher Recruitment Board in accordance
with the Government Order in G.O. (Ms) No.66, school Education
Department, dated 02.03.2009 and G.O. (Ms) No.332, School Education
Department dated 11.12.2009, the Teachers Recruitment Board needs
considerable time to complete the process by following the procedure
from the time of notification till the publication of the result.
In these circumstances, it is prayed that this Hon’ble High
Court may be pleased to extend the time granted by the Hon’ble High
Court in W.A. No.837/2010 for further 6 months to implement the orders
of this High Court and thus render justice.”
22. Thereafter, the High Court proceeded on the basis that the State is
committed to fill up the vacancies on the basis of the employment exchange
seniority and by order dated 12.08.2013 granted two months time to enable
the State to initiate the recruitment process and complete a substantial
part thereof, whereafter, the compliance report was to be filed which, as
has been noticed, was submitted on 12.10.2013.
23. The record of the proceedings of Contempt Case No.1270/2013,
therefore, clearly indicates that the High Court, while rendering the order
dated 12.8.2013, was of the view that the recruitment should be on the
basis of employment exchange seniority. This is not notwithstanding the
stand of the State to the contrary. Thereafter, the order in the present
group of cases was passed on 18.9.2013. It appears that before doing so,
the stand of the State with regard to the change of policy of recruitment
and the efficacy of the GO No.290 dated 6.12.2007 and GO No.66 dated
2.3.2009 was again considered and the impugned directions for completing
the recruitment not through the employment exchange but by open competition
through the Teachers Recruitment Board were issued.
24. Though Contempt Case No.1270/2013 and the present group of cases are
independent of each other, the proximity of the controversy arising in both
cases i.e. the mode and manner of recruitment of Computer Instructors,
cannot be underscored. There is seemingly different understandings of the
same issue in the two sets of proceedings. No explanation is available in
the impugned order to justify the change of judicial vision. In fact, in
the order dated 18.09.2013 there is no reference to the order dated
12.8.2013 in the contempt case. There is also no indication, whatsoever,
as to what could have been the compelling reason(s) that had weighed with
the Court to depart from its earlier order dated 12.8.2013 passed after
full consideration of the claims of the State with regard to change of
policy. Furthermore, if according to the State there had been a change of
policy with regard to mode and manner of recruitment, the GOs No.290 dated
6.12.2007 and No.66 dated 2.3.2009 ought to have been cancelled. Neither
any government order of cancellation is before the Court nor is there any
statement that such a cancellation has been made. In the counter
affidavit of the State dated 21.01.2014 filed before this Court though
there is a mention of G.O.No.175 dated 18.12.2011 providing for
recruitment of post-graduate assistant teachers in higher secondary
classes through written examination instead of the earlier method of
employment exchange seniority, the said G.O. has not been placed on record.
Even if the facts claimed on the basis of the said G.O. No.175 are
assumed, there is no explanation as to why the Teachers Recruitment Board
had issued advertisement No.1/2013 dated 8.5.2013 specifying in Clause 9
thereof that the vacancies covered by the said advertisement are to be
filled up on the basis of the State level employment registration
seniority. Incidentally the said Advertisement covered a sizeable number
of posts (approx. 800) in different vocational streams. In view of the
above, we have not been able to persuade ourselves to take the view that
the recruitment to 652 posts should be made by a process other than what
was directed by the clarificatory order dated 19.11.2009.
25. The order dated 19.11.2009 directing filling up of 175 existing
vacancies and future vacancies of Computer Instructors on the basis of the
employment exchange seniority was a conscious decision taken in departure
from the virtually settled position in law that recruitment to public
service, normally, ought to be by open advertisement and requisitions
through the employment exchange can at best be supplemental. (See: Excise
Superintendent Malkapatnam, Krishna Distgrict, A.P. Vs. K.B.N. Visweshwara
Rao & Ors.[1], Arun Kumar Nayak Vs. Union of India & Ors.[2] and State of
Orissa & Anr. Vs. Mamata Mohanty[3]). Such departure was felt necessary
due to the compulsive needs dictated by the peculiar facts of the case. At
that point of time, out of the 1880 available posts 1683 posts had already
been filled up by the adhoc and underqualified Computer Instructors already
working leaving only 175 vacancies and an unknown number of further
vacancies which was contingent on the result of the second recruitment test
ordered by this Court as a one time measure. Both the recruitment tests,
ordered by the High Court as well as this Court, were exclusive to the
adhoc and unqualified persons leaving a large number of qualified
candidates like the petitioners out of the arena of consideration.
26. What would be the extent of the ‘adverse’ effect on the failed
teachers if the remaining appointments are to be made on the basis of
employment exchange seniority cannot be determined with any degree of
accuracy at this stage inasmuch as a large number of such persons had
qualified in the meantime and by virtue of clause (v) of Para 53 of the
impugned order, the names of the failed computer instructors who were
earlier registered in the employment exchanges have been directed to be re-
entered and their earlier seniority restored. While it is also correct
that by ordering recruitment on the basis of employment exchange seniority
other eligible candidates who could have taken part in the competitive
examination would loose out, no such person is presently before us to
persuade us to take the view that for the purpose of recruitment to the 652
posts of Computer Instructors the earlier order of this Court dated
19.11.2009 should not prevail.
27. We accordingly allow these appeals and set aside directions (vi) and
(vii) of Para 53 of the impugned order dated 18.09.2013 of the High Court
and direct that recruitment to the 652 vacant posts shall be made on the
basis of employment exchange seniority. We also make it clear that the
above direction shall also govern the 175 existing vacancies covered by the
order of this Court dated 19.11.2009 if the same continue to remain vacant
as on date. To all other vacancies, existing or future, as may be, the
State will be at liberty to follow such policy as may be in force or
considered appropriate.
...…………………………CJI.
[P. SATHASIVAM]
.........………………………J.
[RANJAN GOGOI]
…..........……………………J.
[N. V. RAMANA]
NEW DELHI,
MARCH 7, 2014.
-----------------------
[1] (1996) 6 SCC 216
[2] (2006) 8 SCC 111
[3] (2011) 3 SCC 436
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