IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.03.2010 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.4683 of 2010 & M.P.No.1 of 2010 1 D.RAVICHANDRAN 2 N.RAJENDRAN 3 R.KOTTESWARI 4 V.JOHN RANI 5 R.ANANDHAKUMAR 6 K.LAKSHMANAN 7 L.KUMARI SHEEJA 8 S.THALAMUTHU NATARAJAN 9 A.L.CHELLAM [ PETITIONERS ] Vs 1 THE SECRETARY TO THE GOVERNMENT OF TAMILNAU EDUCATION DEPARTMENT FORT ST. GEORGE, CHENNAI-9. 2 THE DIRECTOR DIRECTORATE OF SCHOOL EDUCATION COLLEGE ROAD, CHENNAI-6. 3 THE CHAIRMAN TEACHER RECRUITMENT BOARD COLLEGE ROAD, CHENNAI-6. [ RESPONDENTS ] Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Mandamus directing the 2nd and 3rd respondents to appoint the petitioners as the School Assistant (Science) Teachers in General Category on Seniority Basis of Science Graduates and not on the basis of specified subjects For Petitioner : Mr.V.Perumal For Respondents : Mr.K.H.Ravikumar, G.A. O R D E R Heard both sides. The petitioners herein are all Science Graduates either in B.Sc. Zoology or B.Sc., Botony and trained Teachers. They are qualified to teach Science subjects in Middle Schools, High Schools and Higher Secondary Schools. The third respondent Teachers Recruitment Board by its advertisement put in the https://hcservices.ecourts.gov.in/hcservices/ Website as well as through Television announced called for applications for recruitment to various Graduate Assistant posts in Tamil Nadu run by the Government and the local bodies for the year 2009-2010. 2. The number of posts advertised as given in the affidavit are as follows: Subject No. of Posts Chemistry 856 Mathematics 1382 Physics 857 History 550 Botany 367 Zoology 367 Tamil 206 Geography 122 Total 6332 3. It is the case of the petitioners that the requisition made by the Teachers Recruitment Board is cause for grievance in so far as Science subjects are concerned. For Physics and Chemistry subjects, there the notified vacancies are 857 and 856 posts. For Botany and Zoology, the vacancies advertised are only to the extent of 367 posts in each Subject. According to the petitioners, specialists are not required for teaching in Middle Schools, High Schools and Higher Secondary Schools. Any specialisation required is only for Higher Secondary clases and the students were taught by Post Graduate Assistants and not by Graduate Assistants. There is vast discrimination in respect of Subject allocation. While Physics and Chemistry are over represented, Botany and Zoology are under represented. Because of this lopsided recruitment process, the petitioners, who have already registered in the Employment Exchange for over number of years are unable to get employment. According to the petitioners, some of them have got registered their names as early as 1990 and 1989 and therefore the Notification given by the Teachers Recruitment Board should be set aside. Insofar as the requisition for Science subjects are concerned, a direction must be given that in respect of all Science School Assistant Teachers in respect of general categories, recruitment should be done on the basis of seniority of all Science Graduates and not on the basis of specified subjects. 4. The petitioners are the applicants to the recruitment process. They have no right to challenge the third respondent in respect of the post to which requisition has been made by the https://hcservices.ecourts.gov.in/hcservices/ third respondent. Insofar as it is the admitted case of the petitioners that they are Science Graduates in respect of Botany and Zoology subjects and the requisition made by the Government requires a specified numbers to be filled up by those Graduates and each of the subject has been given 367 posts, the petitioners can only compete in respect of those posts. They have no right to say that a particular subject is under represented and some other subjects are over represented. 5. In more or less identical circumstances, the Supreme Court had occasioned to deal with a similar issue in Bihar Public Service Commission and others v. Kamini and others reported in (2007) 5 SCC 519. The Court held that equality doctrine cannot be allowed to Act on an illegality. In respect of eligibility qualification, merely because some candidates possess a particular qualification had been erroneously considered by the Public Service Commission to be eligible for a post cannot be a ground for the candidate possessing the same qualification to claim appointment to that post in the subsequent recruitment process. In that case, the Court was also faced with the situation whether a B.Sc.,Degree in Zoology which was required for the post of District Fisheries Officer-cum-Chief Executive Officer is equivalent to B.Sc.,Chemistry with Zoology an an optional subject. The matter was referred to an expert opinion and thereafter, the Patna High Court upheld the contention of the Public Service Commission. However, the Division Bench set aside the order of the learned Judge and allowed the appeal filed by the examinees. Aggrieved by the order of the Division Bench, Public Service Commission went to the Supreme Court. The Supreme Court in 7,8 and 10 observed as follows:- 7. ...It was, however, a mistake on the part of the Commission. As soon as the appellant Commission realized that the first respondent was not having requisite qualifications for the post and was not eligible, her candidature was rejected. When a representation was made by the first respondent that cancellation of her candidature was not proper and that the decision should be reconsidered by the Commission, the Commission thought it fit to look into her grievance and an Expert Committee was appointed. The Expert Committee considered the question and submitted a report on 24.11.2002, inter alia, stating that in its "considered opinion", a student would be called a graduate in the subject if he/she has Honours in the subject at the graduate level, meaning thereby that it must be the principal subject. In our opinion, such a decision could not be said to be contrary to law. 8. Again, it is well settled that in the field of education, a court of law cannot act as an expert. Normally, therefore, whether or not a https://hcservices.ecourts.gov.in/hcservices/ student/candidate possess requisite qualifications, should better be left to educational institutions (vide University of Mysore v. C.D.Govinda Rao). This is particularly so when it is supported by an Expert Committee. The Expert Committee considered the matter and observed that a person can be said to be Honours in the subject if at the graduate level, he/she studies such subject as the principal subject having eight papers and not a subsidiary, optional or side subject having two papers. Such a decision, in our judgment, cannot be termed arbitrary or otherwise objectionable. The learned Single Judge, in our opinion, was therefore, right in dismissing the petition relying upon the report of the Committee and in upholding the objection of the Commission. The Division Bench was in error in ignoring the well-considered report of the Expert committee and in setting aside the decision of the learned Single Judge. The Division Bench, while allowing the appeal, observed that the "litmus test" was the admission granted to the first respondent by the Central Institute of Fisheries Education, Mumbai. According to the Division Bench, if the first respondent did not possess Bachelor of Science degree with Zoology, the Institute would not have admitted her to the said course. The Division Bench observed that not only the first respondent was admitted to the said course, she had passed it with "flying colours". In our opinion, the Division Bench was not right in applying "litmus test" of admission of the first respondent by the Central Institute of Fisheries Education, Mumbai. The controversy before the Court was whether the first respondent was eligible for the post of District Fisheries officer, Class II. The correct test, therefore, was not admission by the Mumbai Institution. If the requirement was of Honours in Bsc with Zoology and if the first respondent had cleared Bsc Honours with Chemistry, it could not be said that she was eligible to the post having requisite educational qualifications. By not treating her eligible, therefore, the Commission had not committed any illegality. 10.In our opinion, the submission of the learned counsel for the Commission is well founded and must be accepted. Therefore, even if in 1993, some ineligible candidates were wrongly treated as eligible, the first respondent cannot insist that she also must be treated eligible though she is ineligible. In our considered opinion, such an action cannot give rise to equality clause enshrined by Article 14 of the Constitution. It is well settled and needs no authority that https://hcservices.ecourts.gov.in/hcservices/ misconstruction of a provision of law in one case does not give rise to a similar misconstruction in other cases on the basis of doctrine of equality. An illegality cannot be allowed to be perpetuated under the so-called "equality doctrine". That is not the sweep of Article 14. Even that contention, therefore, has not impressed us." 6. Ultimately it is for the State, which itself is an employer to make requisition having regard to academic welfare of the students and the teaching capacity of such Teachers to teach in such Schools. The notified vacancies represent the various requirements made by various schools. Therefore, there is neither illegality nor impropriety in filling up the posts on the basis of subject specialiation. 6. It is not as if the petitioners' subject specialiation is not notified for the vacancies but the posts are to be filled up on the basis of various subject specialiation. All Science Assistants in General category are entitled to teach all specialised subject is an argument, which is to be rejected at threshold. In the absence of any legal and enforcable right on the part of the petitioners, this Court is not inclined to entertain the Writ Petition. Accordingly, the writ petition stands dismissed. No costs. The connected Miscellaneous Petition stands closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar ajr To 1.THE SECRETARY TO THE GOVERNMENT OF TAMILNAU EDUCATION DEPARTMENT FORT ST. GEORGE, CHENNAI-9. 2 THE DIRECTOR DIRECTORATE OF SCHOOL EDUCATION COLLEGE ROAD, CHENNAI-6. 3 THE CHAIRMAN TEACHER RECRUITMENT BOARD COLLEGE ROAD, CHENNAI-6. + 1 cc to Government Pleader,SR.15639 + 1 cc to Mr.V.Perumal,Advocate,SR.15724 W.P.No.4683 of 2010 NSM(CO) EM/18.3.10 https://hcservices.ecourts.gov.in/hcservices/