IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27/11/2002
CORAM
THE HONOURABLE MR. JUSTICE P.K.MISRA
W.P.NO.16967 of 1997
and
W.M.P.Nos.26884 of 1997 and 1602 of 1999
1.A.Thoppian
2.M.Ganesan
3.S.Ravikumar
4.Vinod
5.Arivazhagan
6.V.Murugan ..Petitioners
-Vs-
1.State of Tamilnadu, rep. by its
Secretary, Education Department
Fort St. George
Madras 9
2.Director of Primary Education
Madras 6 ..Respondents
Petition filed under Article 226 of the Constitution of India for the
issue of a writ of Certiorari as stated therein.
For petitioner : Mr.A.S.Narasimhan
For respondents : Mr.P.S.Sivashanmuga Sundaram
A.G.P.
:ORDER
Heard the learned counsel appearing for the parties.
2.The petitioners in this writ petition had challenged the legality of
the G.O.No.423 dated 3.10.1997 to the extent that it has been laid down in the
said G.O. that the benefit of G.O.No.113 dated 14.3.97 would be available to
those who have passed B.Ed.Decree in the subjects namely, Tamil, Science and
Maths in their basic graduation.
3.Before dealing with the contentions raised by the parties, it is
necessary to notice the essential facts.
4.The question relates to filling up of vacancies for the post of
Secondary School Teachers. The essential qualification for such teachers is
S.S.L.C. and training in Secondary Grade. Since sufficient qualified persons
belonging to SC and ST were not available to fill up those posts, the
Government decided to appoint persons belonging to SC and ST having higher
qualifications, namely, graduates having B.Ed. qualifications. This was done
by the Government by issuing G.O.113 dated 14.3.1997. Thereafter, on 3.10.97,
the Government issued G.O.423 dated 3.10.97 and the relevant portion of the
G.O.423 is to the following effect.
“The Government examined the proposal formulated by the Director of Primary
school education and agreed to accept the proposals. In accordance with that,
subject to the conditions mentioned below, the posts of Secondary Grade
Teachers 1152 could be filled up from the listed communities and Scheduled
Tribes those who have passed in B.Ed. Degree in the following discipline,
that is, Tamil, Science and Maths in their basic graduation.”
The other conditions incorporated in the aforesaid G.O. are not relevant for
the purpose of the present case and it is unnecessary to extract the other
portions.
5. The petitioners have challenged the validity of the condition
extracted above, wherein it is indicated that only persons having degree in
Tamil, Science and Maths as their basic graduation would be eligible for
appointment as Secondary Grade Teachers.
6. The learned counsel appearing for the petitioners has contended
that initially as per G.O. 113 dated 14.3.1997 all the persons belonging to
SC and ST and having higher qualifications of graduation with B.Ed were
eligible to fill up the vacant posts. Subsequently, by confining the
recruitment only to Tamil, Science and Maths graduates, the petitioners have
been denied the posts of Secondary Grade Teachers. It has been submitted that
only because sufficient Secondary Grade Teachers were not available, the
Government had decided to recruit persons from SC and ST having higher
qualifications and there was no justification in the subsequent G.O. to
confine such privilege only to the Tamil, Science and Maths graduates. It has
been indicated that in the normal course, the persons having S.S.L.C. and
required training were eligible and they were not required to have passed
Matriculation in a particular subject. It is submitted that if persons having
mere S.S.L.C. with training in Secondary Grade could be recruited in normal
course, there is no justification to insist that persons having higher
qualification must be graduates in a particular subject.
7.Counter affidavit has been filed on behalf of the Government. In
the counter affidavit, it has been indicated that to cope up with the growing
need and requirement for teaching Science, Maths and Tamil in Standard VI to
Standard VIII the Government took the policy decision to fill up the shortfall
of vacancies in the post of Secondary Grade Teachers reserved for Scheduled
Caste/Scheduled Tribe with higher qualified candidates with Science, Maths and
Tamil subjects, so that their services can be utilised to teach Science, Maths
and Tamil in Standard VI to Std VIII without incurring further expenditure.
It has been further indicated that the aforesaid measure was a temporary
measure only adopted for two years to fill up the existing vacancies and is
not a permanent measure. It has been further submitted that this is a
concession given to the SC/ST candidates as a special case due to dearth of
SC/ST Secondary Grade Teacher candidates based on the policy decision taken by
the Government without offending Article 14 of the Constitution of India.
8.In a Division Bench decision reported in 1990(1) M.L.J. Page 146 it
was observed,
“……When there is a complaint of violation of Articles 14 and 16 of the
Constitution of India with reference to a rule or a statutory provision, it
must be found out as to whether two tests stand satisfied. The first test is,
as to whether the classification on which impugned rule or statutory provision
is founded is based on intelligible differentia which distinguishes persons or
things grouped together from others left out of the group. The second test is
as to whether the differentia in question has a reasonable relation to the
object sought to be achieved by the impugned rule or statutory
provisions……”
9.The aforesaid extracted portion only reflects the unanimous opinion
expressed by all the Courts including the Supreme Court in several cases and
it is unnecessary to burden this judgment by referring other decisions.
10.In the present case, there is no question of making a special
provision for SC/ST. The original G.O. 113 dated 14.3.97 was applicable to
SC/ST persons. The said G.O. had been issued with a view to fill up large
number of existing vacancies, as sufficient number of secondary grade teachers
belonging to SC/ST were not available and the Government decided to fill up
those posts from persons belonging to SC/ST with alternate qualifications
namely graduation with B.Ed. It is to be remembered that the trained
graduates as compared to S.S.L.C. candidates with Secondary Teacher training
have got higher qualification. It is submitted by the learned counsel
appearing for the State that, but for the scarcity of sufficient qualified
Teachers, it would not have been necessary for the Government to pass any
order for recruitment from higher qualified persons and only because persons
having the required qualification were not available, the posts were thrown
open to higher qualified candidates belonging to SC/ST.
11.As already noticed in normal course, persons having S.S.L.C. with
Secondary Grade Teacher Training would have been eligible.
12.I fail to understand the rationale behind the policy G.O. 423
dated 3.10.97 where the posts were only confined to B.Ed., having Tamil,
Science or Maths as their subjects at the stage of graduation. If such a
condition was not applicable to the persons otherwise eligible as Secondary
Grade Teachers, it is not understood as to how it is necessary to insist upon
Science, Tamil and Maths as the subjects at the graduation stage. The
condition imposed appears to be arbitrary.
13.For the aforesaid reasons, the condition as incorporated in G.O.4
23 dated 3.10.97 which has already been extracted, is found to be arbitrary,
discriminatory and is hereby quashed. It is made clear that the posts
referred to in G.O.423 dated 3.10.97 can be filled up by trained graduates
teachers belonging to SC and ST who have done their graduation in any subject.
It is not disputed that some posts have remained vacant. Steps need be taken
for filling up of those vacancies from the original candidates as per other
conditions in G.O. 113 dated 14.3.97 and G.O. 423 dated 3.10.97. However,
the Government cannot insist that only graduates having Science, Maths and
Tamil would be considered. It is also made clear that if any candidate has
crossed the age limit that will not be considered as a bar as the matter has
been remained in the High Court for all these years.
14.This writ petition is accordingly allowed. There will be no order
as to costs. W.M.P.No.26884 of 1997 is dismissed. In view of the above no
orders are necessary in W.M.P.No.1602/1999.
Index:Yes
Internet:Yes
sal
To
1.The Secretary
State of Tamilnadu,
Education Department
Fort St. George
Madras 9
2.Director of Primary Education
Madras 6