IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED; 17-08-2011 CORAM; THE HONOURABLE MR.JUSTICE T.RAJA W.P.No.19735 of 2006 and M.P.Nos.1 of 2006 and 1 of 2007 S.Yasodha Primary Teacher (Tamil) Atomic Energy Central School I(Primary) Kalpakkam … Petitioner Vs. 1.The Chairman Atomic Energy Education Society (REGD) An autonomous body under Department of Atomic Energy Government of India Central Office (AECS-6)Western Sector Anushakti Nagar Mumbai 400 094 2.The Secretary Atomic Energy Education Society (REGD) An Autonomous Body under Department of Atomic Energy Government of India Central Office (AECS-6) Western Sector, Anushakti Nagar Mumbai 400 094 3.The Chief Administrative Officer Atomic Energy Education Society (REGD) (An Autonomous body under DAE Govt.of India, Cental Office (AECS-6), Western Sector Anushakthi Nagar, Mumbai 400 094 4.Mr.N.K.Das Previous The Chief Administrative Officer and Principal (AECS-6), Western Sector Anushaki Nager, Mumbai 400 094 … Respondents (cause title amended as per order dated 17.8.2000 by STJ In MP1/09 in WP19735/06) https://hcservices.ecourts.gov.in/hcservices/ Writ Petition is filed under Article 226 of the Constitution of India praying for issuance of a writ of Certiorarified Mandamus calling for the records of the 3rd respondent dated 28.3.2006 in his Proceedings AEES/R/SRD/2005/5710 dt.11.10.05 and quash the same as illegal and direct the respondents 1 to 3 to promote the petitioner as TGT Tamil in internal quota specified in the Special Recruitment drive vide Circular AEES/R/SRD/SCM/2005/5710 dated 11.10.2005. For petitioner : Mrs.A.Arulmozhi For respondents : Mr.V.Vijayashankar (For R1 to R4) ORDER The petitioner S.Yasodha being aggrieved by her non-selection to the post of Trained Graduate Teacher(Tamil) filed the present writ petition challenging the proceedings passed by the 3rd respondent dated 28.3.2006 in his proceedings AEES/R/SRD/2005/5710 dt.11.10.2005 to quash the same and for a consequential direction to the respondents to promote the petitioner as Trained Graduate Teacher (Tamil) in internal quota specified in the Special Recruitment drive as per Circular AEES/R/SRD/SCM/2005/5710 dated 11-10-2005. 2. (i) Mrs.A.Arulmozhi, learned counsel for the petitioner submitted that the petitioner has joined the service of the Atomic Energy Central School in Kalpakkam on 13.07.1988 as a Tamil language teacher. From the date of her joining she has been teaching in Tamil subject to the primary section consisting of standards I to V and brought excellent results in the academic performance of the students by making the students to take part in number of school activities. She was also holding the post of Secretary of Valar Tamil Mandram, Member in School Advisory Committee, Exam Committee, Prize Distribution Committee and House Master in CCA, Annual day Presentation etc. Whileso, as per the norms of the respondent society, the primary teachers who have completed 12 years of service are entitled for senior time scale. As per the rules, when the petitioner’s name was recommended in the year 2000 for payment of senior scale of pay, she was not granted the scale of pay, while her batchmates and some of her juniors were given senior scale of pay. Similarly, the attitude of the respondent in depriving her the post of Trained Graduate Teacher (Tamil) for which she was earlier selected and included in the merit list of promotion to the post of TGT in the year 1999 can be further seen on account of denial of promotion to the petitioner without any reason. While the petitioner started questioning denial of promotion to her, for the simple reason that the petitioner has questioned, the third respondent and the Principal, Atomic Energy Central School-I, DAE Township, (PDPM) Kalpakkam 608 102 made it a point to write some kind of disciplinary remarks in her Annual Confidential Report. Finally, when she made a https://hcservices.ecourts.gov.in/hcservices/ representation to the first respondent, the Chairman of the Atomic Energy Education Society, Mumbai by proceedings dated 11.10.2001 rejected the petitioner’s representation. Thereupon, adverse remarks were entered in her Confidential Report by the second respondent as guided by the Principal, Atomic Energy Central School, Kalpakkam. Once again, the 4th respondent who was the Principal of the School by showing another unreasonable approach against the petitioner engineered to enter yet another adverse remarks in her Confidential Report for the academic year 2002-2003. Under these circumstances, the respondent conducted a special recruitment drive for recruitment of SC/ST candidates against the backlog of vacancies reserving 33% of vacancies through internal promotion (Departmental candidates). The qualifications prescribed in the circular AEES/2005 calling for applications for the post of Trained Graduate Teacher shows that a teacher should possess (i) A Bachelor Degree with Tamil and 45% marks in aggregate; (ii) B.Ed., from a recognized universityl; and (iii)Teaching experience minimum 3 years in AEC schools. Immediately on receipt of the information about the selection of 33% of departmental candidates for the promotional post of Trained Graduate Teacher, the petitioner also submitted her application with full bio-data as per the circular. The respondent on receipt of her application called the petitioner for written test held on 18.12.2005. The petitioner on writing the written test came out successfully. Therefore, she was selected for the personal interview that was held on 2.2.2006. The petitioner took part in the said interview and performed to her satisfaction by answering all the questions. While she was expecting promotion order, to her shock she received only the impugned order dated 28.3.2006 issued by the 3rd respondent stating that though the petitioner was in the zone of consideration for promotion to the post of TGT (Tamil), her case could not be considered for promotion due to adverse/advise remarks in the ACR in the last three years. Immediately, on receipt of the said order the petitioner made an appeal through proper channel on 12.4.2006 by setting out all the reasons that she has been wrongly victimized for extraneous reasons including her academic performance. As there was no response to the appeal, the petitioner has come to this Court by filing the present writ petition. (ii) After narrating the above, the learned counsel for the petitioner further assailed the impugned order by adding that the reasons given in the impugned order for not promoting the petitioner are not at all correct inasmuch as the respondents had promoted many of the petitioner’s juniors even though the juniors had adverse remarks in their Confidential Reports. (iii)The learned counsel for the petitioner further contended that the first respondent while considering the nature of adverse remarks entered in the Confidential Report of the petitioner should https://hcservices.ecourts.gov.in/hcservices/ have seen that the adverse remarks do not constitute a bar for promotion as per the circular for recruitment to the post of TGT. (iv) Again the learned counsel for the petitioner assailed the correctness of the impugned order on the ground that the act of the respondents in promoting the similarly placed persons with adverse remarks and denying promotion to the petitioner is highly arbitrary and violative of Articles 14 and 16 of the Constitution of India. The unreasonable attitude of the 4th respondent against the petitioner in denying promotion can be clearly seen from the way in which the petitioner was wrongly treated by informing the petitioner to write the written test and then to go to Bombay from Chennai to attend the interview held on 2.2.2006. After permitting the petitioner to write the written examination, when she came out successfully, the respondent again permitted the petitioner to appear for an interview on 2.2.2006 at Bombay. Even after seeing her performance in the interview, instead of selecting her to the post of TGT, the respondent once again made her to fail, on the only lame reason that the petitioner had already suffered adverse remarks in the year 2002- 2003. (v) The learned counsel for the petitioner further submitted that the adverse remarks made in the petitioner’s ACR in the year 2002-2003 was very well known to the respondents. While so, even at the time of scrutinizing her application for the post of TGT, the respondent should have informed the petitioner well in advance that she has been disqualified in view of her adverse entry in her ACR. But having allowed the petitioner as an eligible candidate to write the written examination and after she passed the written examination, when she was called upon to attend the interview held on 2.2.2006, it is not open to the respondents to deny the promotional benefit to her as she is entitled to be considered in the vacancies reserved for SC/ST post by application of 33% vacancies. 3. (i) Per contra Mr.V.Vijayshankar, learned counsel appearing for the respondents 1 to 4, stoutly argued against the maintainability of the Writ Petition by citing the decision of the Andhra Pradesh High Court rendered in V.S.R.MURTHY V.CHAIRMAN, ATOMIC ENERGY EDUCATION SOCIETY, ANUSHAKTINAGAR, BOMBAY-400 094. In that case a candidate who was employed at Hyderabad had submitted his application for selection to the post of Principal and he was called upon to attend an interview held at Bombay. After attending the interview at Bombay, he challenged his non-selection. By taking note of the fact that the petitioner therein hailed from Hyderabad went to attend an interview held at Bombay, the learned single Judge of Andhra Pradesh High Court held that the cause of auction had arisen only at Bombay which was outside the jurisdiction of the Andhra Pradesh High Court. Though the petitioner in that case was obviously employed at Hyderabad, since he was called for the interview held at Bombay, it was held that it was outside the jurisdiction of the https://hcservices.ecourts.gov.in/hcservices/ Andhra Pradesh High Court and in those circumstances, the Andhra Pradesh High Court has no jurisdiction to entertain that writ petition. On that basis, the learned counsel for the respondents argued that as the petitioner in the present writ petition is working as a teacher in the 4th respondent school in Kalpakkam, Tamil nadu and she has been called upon to appear for an interview at Bombay, this Court has no jurisdiction to entertain the writ petition. As the entire cause of action, after taking the written examination till participating in the interview held at Bombay, have constituted no cause of action at Tamil Nadu, the learned counsel for the respondents prayed for dismissal of the writ petition on the ground of want of territorial jurisdiction. This argument advanced by the learned counsel for the respondents does not carry any force nor has any merits. The admitted cause of action has arisen at Kalpakkam in Tamilnadu inasmuch as the petitioner is even now working as a teacher in the 4th respondent school at Kalpakkam, namely, Atomic Energy Central School which is being controlled by the Secretary of Atomic Energy Education Society, an autonomous body under the Department of Atomic Energy. More over, the Chief Administrative Office and Senior Principal Atomic Energy Central school are also situated at DAE Township in Kalpakkam. Therefore, the 4th respondent school in which the petitioner is working is under complete control of the respondents 1,2 and 3. Only on invitation from the Secretary-the second respondent, the petitioner had the written examination and after successfully coming out from the written examination, the fourth respondent by letter dated 19.1.2006 called upon the petitioner to appear for an interview to be held on 2.2.2006 at Bombay. When the 4th respondent Office at Kalpakkam asked the petitioner to appear for an interview held at Bombay it is not proper on the part of the respondents 1 to 4 to say that the petitioner should file a writ petition at Bombay High Court, when part of cause of action has arisen at Kalpakkam in Tamilnadu. Hence, in my considered opinion, the argument advanced by the learned counsel appearing for the respondents that there is no territorial jurisdiction for this Court to entertain this writ petition does not hold good as the petitioner is a teacher fighting for promotion to the post of TGT in the very same school, namely the 4th respondent school, at Kalpakkam, Tamil nadu. (ii) Yet another contention raised by the learned counsel for the respondents is also regarding maintainability of the writ petition. The learned counsel for the respondents contended that the Atomic Energy Education Society, which is a society registered under the Societies Registration Act, is not an instrumentality of the State within the meaning of Article 12 of the Constitution of India and that being so, the writ petition filed by the petitioner-a teacher working under the 4th respondent school which is running by Atomic Energy Education Society is liable to be dismissed on the https://hcservices.ecourts.gov.in/hcservices/ ground of maintainability also. In support of his submission, the learned counsel relied upon an unreported order passed by the Bombay High Court in W.P.No.761/2003 dated 30.1.2004 holding that no writ petition will lie against the Atomic Energy Education Society which does not come within the meaning of the "other authority" under Article 12 of the Constitution of India. This argument also does not hold good in view of the judgment of this Court in P.W.ISENTH AND ANOTHER V. THE ATOMIC ENERGY EDUCATION SOCIETY, REP.BY ITS SECRETARY ANU SAKTHI NAGAR, MUMBAI (2000 (I) CTC 566) which reads as under: “Atomic Energy Society is an autonomous body under the Department of Atomic Energy Government of India has established the institutions and they are maintaining the institutions. It is clear from the affidavit filed in support of the writ petition that the schools have been established by the Department of Atomic Energy and it is fully aided by the Central Government. As such the respondents will fall definitely within the ambit of the expression “other authority” under Article 12 of the Constitution. Hence the writ petitions are maintainable as the Educational institutions established by the said Society is an instrumentality of the Central Government.” 4. In respect of the third argument advanced by the learned counsel for the petitioner that only for the reason that the petitioner has questioned the denial of promotion, the third respondent had made it as a point to write some kind of adverse remarks against the petitioner in her ACR and after permitting the petitioner as eligible candidate to participate in the written test followed by interview held on 2.2.2006, finally denying promotion to her on the ground that she had already suffered adverse remarks for the academic year 2002-2003 is highly arbitrary, by way of reply the learned counsel appearing for the respondents submitted that when the respondents conducted a special recruitment drive for requirement of SC/ST candidates to clear the backlog of vacancies, they issued a circular calling upon the eligible candidates to apply for the post of TGT. The petitioner also applied for the said post. Since the respondents have reserved 33% of vacancies for departmental candidates like the petitioner that does not mean that the petitioner who is admittedly a departmental candidate is automatically entitled to get promotion to the post of TGT when she suffered an adverse remarks in her Confidential Report for the academic year 2002-2003. Since the circular says a candidate seeking promotion should have got three years clean record preceding to the date of attending the interview, let me a have a look at the circular that have disqualified the petitioner from being considered for the post of TGT. Some of the conditions mentioned in the circular are extracted hereunder: https://hcservices.ecourts.gov.in/hcservices/ “III.TRAINED GRADUATE TEACHERS in the following subject combinations (Scale of pay:5500-175-9000); A)English/Social Studies B) Hindi and Sanskrit C)Tamil D) General science (Bio./Chem.,) E) Physical Education Teacher (Lady) F)ART G) Computer Science The following Primary teachers are eligible for consideration:- a. All PRTs Including special category PRTS who have put in continuous 3 years service in AEES as on 01.01.2006 with minimum qualification of BA or B.SC with B.Ed from a recognized university. b. Special category primary teachers with the above qualification who have been teaching and are still teaching other subjects during the current academic session. c. Special category PRTs other than (b) above for TGT (PET/ART/Computer Science). NOTE: 1.The selected candidates should be willing to work anywhere in India wherever AEC Schools are located. 2.Heads of schools are requested to furnish the details of SC/ST teachers who fulfill the above minimum requirements in the enclosed proforma to this office. 3.A certificate to the effect that the contents of this circular have been brought to the notice of all eligible SC/ST teachers may be forwarded to this office for necessary action at out end. 3.The completed bio-data forms duly verified from the service records should reach Central Office, AEES, Mumbai on or before 31st October, 2005 positively.” …….. Selection/Interview: Only those who fulfill eligibility conditions and rank high among the eligible candidates will be called for a written test, followed by an oral interview at Mumbai. The applicants are expected to have a good command of English as it is the medium of instruction in our schools. Mere fulfilling of requirements as laid down in the advertisement will not automatically qualify a candidate for written examination and interview. The decision of AEES will be final and no correspondence will be entertained from candidates not considered for written examination/oral interview/appointment etc. https://hcservices.ecourts.gov.in/hcservices/ Candidates called for the final interview will be paid to and fro railway or ordinary ST bus fare by the shortest route as admissible under the rules on production of tickets from the nearest railway station.” On the basis of the circulars and the eligibility criteria mentioned above Mr.V.Vijayshankar, learned counsel for the respondents further contended that as a matter of fact any teacher is due for senior scale on completion of 12 years of service, subject to her performance. However, in the case of the petitioner, certain adverse remarks were reported in her ACR which was duly communicated to her since her ACR were not upto to the mark. He has also brought to the notice of this Court several communications and one such communication addressed to the petitioner on 6.8.2001 is extracted as under: “This is to bring to your notice that in the Confidential Report for the Academic Year 2000-2001, while you have been graded normal in teacher’s command over the medium of instruction, subject knowledge, classroom teaching, handwriting, personality, ability to experiment with new ideas and methods of teaching, ability and interest in preparing students for the tests and examinations, using blackboard effectively, controlling the class, correcting written assignments, setting question papers, evaluating the answer books of the students, planning lessons thoroughly, general knowledge and awareness of important current issues, accepting additional work willingly, assisting colleagues readily, helping weak learners or gifted students, preparing students for participation in co-curricular and other activities of the school and relationship with the parents of the students, you have been graded below normal in respect of dependability punctuality and regularity. The intention of communicating the above defects is to enable you to improve yourself in said areas. You are, therefore, requested in your own interest to improve as regards the defects noticed. You are also informed that you are free to make a representation to Chairman, AEES against the adverse remarks in your confidential report as communicated above. within one month of the receipt of this communication.” This was followed by another communication dated 28.3.2002 grading the petitioner’s performance as very poor since she was not having a good command on the medium of instruction. The said communication further advised the petitioner to make every effort possible to improve her communication in English with some suggestions that if she needed any books etc., to do so and if these books are not https://hcservices.ecourts.gov.in/hcservices/ available in her school library, she was asked to inform the Academic Unit of her requirements since they would be supplied to the library as soon as possible. In any case, the said communication is in advisory nature. 5. Yet another communication dated 28.1.2003 was brought to the notice of this Court by the learned counsel for the respondents. As per the said communication the petitioner was informed that her case was put up to the Departmental Promotion Committee for the grant of senior scale along with the other teachers. The DPC did not recommend her case for grant of senior scale. Another communication dated 24.7.2003 was referred again communicating adverse remark in the Confidential Report of the petitioner for the academic year 2002- 2003. The said communication is extracted hereunder: “This is to bring to your notice that in the confidential report for the academic year 2002-2003. While you have been graded good in punctuality, regularity, handwriting correcting written assignments setting of question papers evaluating the answer books of the students correctly lesson planning and preparing students for participation in co-curricular and other activities of the schools. You need improvement in command of the medium of instruction, subject knowledge, personality, classroom teaching, class control and rapport with the students, ability to experiment with new ideas and methods of teaching, ability and interest in preparing students for the tests and examinations, use of blackboard, general knowledge and awareness of important current issues, accepting additional work willingly, assisting colleagues readily, helping weak learners or gifted students and relationship with the parents of the students. The intention of communicating the above defects is to enable you to improve yourself in the said areas. We trust that you will take this advice in the right spirit. If, however you wish to say any thing in the matter please convey that to Chairman, AEES within one month from the receipt of this letter." Aggrieved by the adverse remarks dated 24.7.2003, she made a representation on 29.8.2003 before the Chairman, the first respondent herein to expunge the adverse remarks made in the Confidential Report for the year 2002-2003. But her representation was rejected by the Chairman, the first respondent informing the petitioner that he did not find sufficient grounds for interference. 6. Another communication dated 28.3.2006 was issued to the petitioner by the Senior Principal and Chief Administration Officer informing her that although she was in the zone of consideration for promotion in the post of TGT(Tamil), her case could not be considered https://hcservices.ecourts.gov.in/hcservices/ for promotion due to adverse/advice remarks. On that basis she was also advised to improve her performance in the coming years. Thereafter, the petitioner has submitted a representation on 12.4.2006. Challenging the communication dated 28.3.2006 the present writ petition has been filed. 7. Since the respondent found that the petitioner being an internal candidate, she should have obtained clean records in the immediate preceding 5 years, the respondents rightly found her not suitable for promotion to the post of TGT. This submission has to be considered in the light of the circular demanding the petitioner to keep 5 years of clean records preceding the date of holding DPC. “G.I., Dept. of Personnel &Training ., O.M. No.22011/7/98-Estt(D) dated 6.10.2000 DPC to consider C.Rs. for five years only. The undersigned is directed to invite reference to the Department of Personnel and Training Office Memorandm No.22011/5/86- Estt.(D) dated 10.4.1989 (S.No.39 of Swamy;s Annual, 1989) on the subject cited above. Para.6.2.1 of the instructions lay down the procedure to be followed by the DPCs with regard to the Confidential reports (CRs) to be considered for the assessment of the suitability of the officers in the zone of consideration. Sub-para.(b) of the aforesaid para. provides that : "the DPC should assess the suitability of the officers for promotion on the basis of their Service Record and with particular reference to CRs for five preceding years. However, in cases, where the required qualifying service is more than five years, the DPC should see the record with particular reference to the CRs for the years equal to the required qualifying service. (If more than one CR has been written for a particular year, all the CRs for the relevant years shall be considered together as the CR for one year) 2.The Fifth Central Pay Commission, in Chapter 21 (Para.21.18), on ‘Performance Appraisal’ has, inter alia, recommended as follows:- “Normally, the Confidential Reports of the immediately preceding five years alone should be considered by Departmental Promotion Committees to assess the suitability of the employees for career advancement and other benefits, unless reference to reports of earlier years is considered to be absolutely essential.”