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Sunday, March 9, 2014

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. = K. Gunavathi ... APPELLANT (S) VERSUS V. Sangeeth Kumar & Ors. ... RESPONDENT (S) = 2014 (March. Part )judis.nic.in/supremecourt/filename=41304

 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.
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[1]    (1996) 6 SCC 216
[2]    (2006) 8 SCC 111
[3]    (2011) 3 SCC 436

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