IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.01.2010 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.1284 of 2010 & M.P.No.1 of 2010 1.R.M.PERIYASAMY 2.R.CHINNAPAIYAN 3.K.KALAICHELVAN 4.K.TAMIL DASAN 5.P.RAMAR 6.A.DHARMALINGAM ..PETITIONERS Vs 1.THE DIRECTOR OF PRIMARY SCHOOL EDUCATION COLLEGE ROAD, NUNGAMBAKKAM, CHENNAI-34. 2.THE STATE OF TAMIL NADU, REP. BY SECRETARY TO THE GOVERNMENT, SCHOOL EDUCATION DEPARTMENT, FORT ST. GEORGE, CHENNAI-9. ..RESPONDENTS Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Mandamus to direct the respondents to include the names of the petitioners in the Panel of Post Graduate Teachers to be appointed by the State Government now. For Petitioners : Mr.P.Madhan For Respondents : Mrs.C.K.Vishnu Priya, A.G.P. O R D E R The petitioners are all working as Secondary Grade Teachers in Panchayat Union Middle Schools and Primary Schools. They have come forward to file the present Writ Petition seeking for a direction to the respondents to consider the names of the petitioners for appointment to the Post Graduate Teachers. According to the petitioners, a seniority list was to be prepared. The Director of Primary School Education and the State Government were cited as respondents. 2. It is the case of the petitioners that they have acquired the educational qualification even to hold the post of Post Graduate https://hcservices.ecourts.gov.in/hcservices/ Teachers. Therefore, their names should be considered. In support of their contention, the petitioners have enclosed number of earlier orders, wherein the Secondary Grade Teachers were directly appointed as Post Graduate Teachers in the Tamil Nadu Higher Secondary Education Service. But, those orders have been passed as early as in the year 1997 and the circumstances under which such postings were given is also not explained. 3. The petitioners' prayer seeking for a direction to include their name in the panel for the post of Post Graduate Teacher cannot be granted by this Court for more than one reasons. The services in the category of Post Graduate Teachers come under the Tamil Nadu Special Rules framed by the Tamil Nadu Higher Secondary Education Service by G.O.Ms.No.720 Education Department dated 28.4.1991. The post of Post Graduate Teacher comes under Class I. The method of recruitment as found in Rule 2 is that the post shall be filled up by direct recruitment or recruitment by transfer from the Tamil Nadu Educational Subordinate Service and if no qualified and no suitable candidates are available for appointment by method II, by recruitment by transfer from any other service. Under the relevant Education Subordinate Service Rules, a Secondary Grade Teacher is eligible for promotion to the post of Graduate Assistant. The petitioners can also apply for direct recruitment if any direct recruitment is made. But, in the present case, it is not the case of the petitioners that they want the post of Graduate Assistant. But they want to be posted as Post Graduate Assistant only on the ground that they have acquired qualification for the said post. 4. It is needless to point out that even if the proviso to Rule clearly shows that if no sufficient number of qualified and suitable candidates are available for appointment by a particular method, such vacancies can be filled up by the other method prescribed. If the petitioners are so qualified, they can always apply under the direct recruitment quota and not seek as a matter of right for appointment by transfer. In the absence of any legal and enforcement right under the Special Rules, the claim made by the petitioners cannot be countenanced by this Court. Further, the similar circumstances of the case pointed out by the petitioners cannot weigh this Court dehorse the Rules framed under Article 309 of the Constitution of India. 5. The Supreme Court in Col.B.J.Akkara (Retd.) vs. Government of India and others reported in 2006 (11) SCC 709 has held that merely because the Government had chosen to implement a wrong order which became final, that by itself will not give any cause of action to the other persons without deciding the issue on merit. It is therefore necessary to extract para 26 of the judgment and it reads as follows: https://hcservices.ecourts.gov.in/hcservices/ " A particular judgment of the High Court may not be challenged by the State where the financial repercussions are negligible or where the appeal is barred by limitation. It may also not be challenged due to negligence or oversight of the dealing officers or on account of wrong legal advice, or on account of the non-comprehension of the seriousness or magnitude of the issue involved. However, when similar matters subsequently crop up and the magnitude of the financial implications is realised, the State is not prevented or barred from challenging the subsequent decisions or resisting subsequent writ petitions, even though judgment in a case involving similar issue was allowed to reach finality in the case of others. Of course, the position would be viewed differently, if petitioners plead and prove that the State had adopted a “pick-and- choose” method only to exclude petitioners on account of mala fides or ulterior motives. Be that as it may. On the facts and circumstances, neither the principle of res judicata nor the principle of estoppel is attracted. The administrative law principles of legitimate expectation or fairness in action are also not attracted. Therefore, the fact that in some cases the validity of the circular dated 29-10-1999 (corresponding to the Defence Ministry circular dated 11-9-2001) has been upheld and that decision has attained finality will not come in the way of the State defending or enforcing its circular dated 11-9-2001. 6. In the light of the same, 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 DIRECTOR OF PRIMARY SCHOOL EDUCATION, COLLEGE ROAD, NUNGAMBAKKAM, CHENNAI-34. 2. THE SECRETARY TO THE GOVERNMENT, SCHOOL EDUCATION DEPARTMENT, FORT ST. GEORGE, CHENNAI-9. + 1 c.c. to Mr. P. Madhan, Advocate. S.R.No.5340. + 1 c.c. to The Government Pleader. S.R.No.4713. W.P.No.1284 of 2010 KK (CO) GSK 05.02.2010. https://hcservices.ecourts.gov.in/hcservices/