IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.04.2010 CORAM THE HONOURABLE MR.JUSTICE T. RAJA W.P. Nos.29404 and 27717 of 2007 and M.P.Nos.1, 1 of 2007 and 1 of 2009 P.Sree Kumar ... Petitioner in W.P.No.29404 of 2007 M.Sisilarani ... Petitioner in W.P.No.27717 of 2007 -vs- 1.The Government of Tamil Nadu, Rep. by its Secretary, Education Department, Fort. St. George, Chennai – 600 009. 2.The Teachers Recruitment Board, Rep. by its Chairman, 4th Floor, EVK Sampath Maligai, DPI Compound, College Road, Chennai – 600 006. ...1 & 2 Respondents in both petitions The Director of School Education, D.P.I. Compound, College Road, Chennai – 600 006. ...Third Respondent in W.P.No.27717 of 2007 Prayer in W.P.No.29404/2007: Petition filed under Article 226 of Constitution of India praying to issue a writ of mandamus directing the respondents to appoint the petitioner as Graduate Assistant in Physics in any of the Government High Schools as he had been selected in the competitive examination conducted by the 2nd respondent Board and thereafter to take recourse to the recruitment of Graduate Teachers through employment exchange based on the seniority and pass such further orders. Prayer in W.P.No.27717/2007: Petition filed under Article 226 of Constitution of India praying to issue a writ in the nature of certiorarifed mandamus after calling for the records, relating to the letter bearing Ref.No.15152/02/2006-9, dated 09.10.2006 issued by the 1st respondent changing the method of appointment for Graduate Assistants for the year 2006-2007 as being illegal, arbitrary and in https://hcservices.ecourts.gov.in/hcservices/ violation of Articles 14 and 16 of the Constitution of India and to quash the same and consequently direct the respondents to select the petitioner as Graduate Assistant in Mathematics (G.030 – Roll No.G03010587, Mathematics) in any of the Government High Schoosl vide it's selection process in pursuance of its notification for direct recruitment of Graduate Assistants for Government Middle/High/Higher Secondary Schools – 2006-2007 and thereafter to take recourse to recruitment of Graduate Teachers through Employment Exchange, based on the seniority and pass such further orders. For Petitioners : Mr.N.Rajan in W.P.No.27717/2007 Mr.N.G.R.Prasad for M/s.Row & Reddy in W.P.No.29404/2007 For Respondents : Mrs.E.Renganayaki, GA (Edn.) COMMON ORDER The present writ petition in W.P.No.29404 of 2007 has been filed with a prayer to issue a writ of mandamus directing the respondents to appoint the petitioner as Graduate Assistant in Physics in any of the Government High Schools as he had been selected in the competitive examination conducted by the 2nd respondent Board and thereafter to take recourse to the recruitment of Graduate Teachers through employment exchange based on the seniority. 2. The petitioner being B.Sc. Graduate in Physics and B.Ed in the same subject of physics, is working as a Teacher in a Private School. The 2nd respondent, Teacher Recruitment Board, issued a notification on 02.09.2006 for recruitment of Graduate Assistants for Government Middle/High/Higher Secondary Schools for the year 2006- 2007. The Government resolved to fill up the post of Graduate Assistants through competitive examination instead of appointing on the basis of their seniority in the employment exchange, since the appointment through competitive examination would be more meritorious. The petitioner, in response to the notification issued by the 2nd respondent, submitted his duly filled in application form. The 2nd respondent conducted the examination on 05.09.2006 for selection of Graduate Assistants, in which the petitioner, Sree Kumar, also appeared with Roll No.G04290076 and subsequently, on 01.12.2006, the results of the examination were also published in the website of 2nd respondent's board. On 12.01.2007, the 1st selection list was published and thereafter, the 2nd respondent has filled up 3,312 vacancies for all subjects. Out of 3,312 vacancies, 476 vacancies pertained to the physics teacher and the petitioner appointment was also for the post of physics teacher. Thereafter, on 10.04.2007, the 2nd respondent called for certificate verification and in the supplementary list, the petitioner's name was 75 in the seniority. On 23.04.2007, the petitioner certificate was also verified by the 2nd respondent. Again, on 09.05.2007, the provisional selection list, after certificate verification, was published and out https://hcservices.ecourts.gov.in/hcservices/ of 144 vacancies of physics teachers, 126 candidates were appointed. In view of appointment of 20 candidates from the list of General Turn (GT), the petitioner appointment as Graduate Assistants got delayed. Therefore, the petitioner made a representation dated 20.08.2007 requesting the respondents to appoint the petitioner as Graduate Assistants in Physics based on his selection in the list for the year 2006-2007. But the respondents did not come forward to reply to the representation. Whileso, on 02.09.2007, the 2nd respondent issued a notification in their official website stating that 5098 Graduate Teachers were going to be provisionally selected as Graduate Assistants for Sarva Shiksha Abhiyan for school education based on employment exchange seniority. Therefore, the learned counsel appearing for the petitioner submitted that the action of the respondents in not appointing the petitioner based on the selection list drawn up in the competitive examination for the post of Graduate Assistants held during 2006-2007 as per the Seniority in the employment exchange is illegal, arbitrary and is in violation of 2nd respondent policy. 3. Learned counsel appearing for the petitioner further submits that the action of the 1st respondent announcing that the recruitment of Graduate Assistants would be based on the seniority from the employment exchange on the ground that appointment through competitive examination had not produced the desired results in getting young and meritorious candidates, is untenable and hence, it is not open to the respondents to go back again to the employment exchange without exhausting the list of selected candidates based on competitive examination held by the 2nd respondent. Because, the 2nd respondent after inviting eligible candidates like the petitioner by conducting competitive examination in the year 2006-2007 for selection of Graduate Assistants and after filling up 3000 posts from out of the list already prepared in which the petitioner was also found selected and without appointing the petitioner as Graduate Assistants in Physics, all of a sudden abandoning the list and again going for recruitment based on the seniority maintained in the employment exchange is not just and reasonable. Further, the learned counsel appearing for the petitioner submits that the respondents should have exhausted the list of selected candidates and after exhausting the list of selected candidates, they could go in for making appointments based on employment exchange seniority maintained therein, but without completing one process, all of a sudden in the midway, that too, after selecting the petitioner to the post of Graduate Assistants in Physics through competitive examination, leaving the petitioner in ditch, the 2nd respondent again abandoned one selection process and gone to another selection process and the said exercise was termed as violative of Article 14 and 16 of the Constitution of India. In support of his contention, he also relied upon the Supreme Court Judgment reported in 1991(3) SCC 47 (SHANKARSAN DASH Vs. UNION OF INDIA), wherein the Hon'ble Supreme Court has held that once a https://hcservices.ecourts.gov.in/hcservices/ list has been operated, the respondent cannot arbitrarily abandon the list. Finally, it was also brought to the notice of the Court that at the time of issuance of the notice on the present writ petition, this Court having seen the plight of the petitioner, was pleased to reserve one post vacant . 4. On the other hand, learned counsel appearing for the respondents submits that the writ petitioner, Sree Kumar, with Roll No.G04 290076 belonging to OC Community has secured 97 marks in the written examination, 3 marks for employment seniority and 3 marks for teaching experience were awarded and total marks, after adding waitage marks, came to 103 marks. Based on the marks obtained by the petitioner against General Turn(GT), he was called for certificate verification on 23.04.2007 along with other candidates, who were secured cut off marks of 103 like the petitioner. When the position of last selected candidates reached to fill two additional vacancies against General Turn(GT) under Most Backward Class department, two candidates, who were senior in the age and date of birth, were selected. They are A.Joseph George, with total marks of 103 and his date of birth being 02.07.1965 and another candidate, N.Sundararajan also obtained marks of 103 and his date of birth is 26.06.1966. If the other things are being equal, the date of birth has to be taken for fixing the seniority as per the Government Order. When two or more candidates get equal marks, they are arranged in seniority on the basis of date of birth. The last selected General Turn candidate with Roll No.G04 060064, has secured 103 marks and has his date of birth as 26.06.1966, whereas the date of birth of the petitioner being 15.04.1969, in accordance with the Rules in existence, the 2nd respondent has considered the candidate, who was senior in age for selection and thus, the writ petitioner who is junior in date of birth, could not be considered for selection. After certificate verification, the final merit-cum-communal roster of provisionally selected candidates for appointment was published on 09.05.2007 and all the post of Graduate Assistants , to which the petitioner has also filed the present writ petition against General Turn (GT), for the year 2006-2007 have been filled up. Therefore, it was contended that the case of the petitioner was considered on the basis of the Rules and all the vacancies have been filled up. Hence, the present writ petition seeking for a writ of mandamus against the respondents to appoint the petitioner as Graduate Assistants in Physics in any of the Government High School, cannot be legally entertained. 5. Heard the learned counsel appearing on either side and perused the materials available on record. 6. Initially, the 2nd respondent communicated to fill up all the vacancies for the post of Graduate Assistants by resorting to proper selection process in order to select meritorious candidates to teach the students in the Schools. Therefore, the 2nd respondent decided to go for a provisional selection in order to get successful candidates based on the written examination marks and waitage marks secured by the candidates. In this connection, this Court in W.P.No.25227/2006 https://hcservices.ecourts.gov.in/hcservices/ dated 14.09.2006, passed an order, directing the 2nd respondent Board to award provisional waitage marks for their waiting in the employment exchange for recruitment of PG teachers in the year 2006- 2007. Accordingly, the 2nd respondent herein by constituting a selection board, conducted competitive examination and all the candidates were awarded waitage marks for (a) 3 marks for the period of waiting after Employment Exchange Registration; (b) 3 marks for teaching experience in the relevant classes. On that basis, the writ petitioner having Roll No.G04 290076 belonging to OC Community was awarded 97 marks in the written examination, 3 marks for employment seniority and 3 marks for teaching experience and his total marks came to 103. The cut off marks being 103, the petitioner was also called for certificate verification on 23.04.2007 along with other candidates. Interestingly, 30 candidates secured equal marks i.e. 103 marks and the writ petitioner is also one among them. As per the records, the last selected General Turn(GT) candidate is one N.Sundararajan, along with another candidate A.Joseph George, who has also secured 103 marks. But, the date of birth of the petitioner being 15.04.1969, the cut off date of birth for 103 marks was fixed as 26.06.1966. Admittedly, the petitioner though has secured 103 marks, but in view of the fact that the petitioner being junior in age, as per the Rules in existence, the 2nd respondent has considered only those candidates, who were senior in age for selection and thus, the writ petitioner, who is junior in date of birth could not be considered for selection. Therefore, after certificate verification, the petitioner could not be considered for the post of Graduate Assistants in Physics. Now, all the posts in the General Turn have been filled up in accordance with rules in existence. Therefore, the case of the petitioner cannot be considered. 7. In respect of second argument advanced by the learned counsel appearing for the petitioner that though the 2nd respondent instead of continuing the same selection process, namely selecting candidates on the basis of written examination for filling up of future vacancies for the post of Graduate Assistants, have wrongly changed over to different mode of selection of candidates by resorting to a different method of appointment on the basis of seniority maintained in the employment exchange register. The learned Government Advocate appearing for the respondents replied that for the purpose of implementing the Government Scheme known as 'Education for All", the Government thought to dispense with the practice of conducting written competitive examination for the recruitment of B.T. Teachers and to accommodate a large number of candidates, who had registered their names in the Employment Exchange and in order to consider the plight of the educated youths languishing for an opportunity for employment for quite a long number of years, the Government took a policy decision to introduce recruitment purely based on employment seniority from the year 2007 onwards. On the basis of policy decision taken by the Government, 7979 Graduate Teacher posts were filled up in the ratio of 1:1 by sponsoring candidates from the Employment Exchange. Therefore, such https://hcservices.ecourts.gov.in/hcservices/ change of mode of appointment of Graduate Teachers, which is purely based on employment seniority, cannot be found fault with by the petitioner. The Government is entitled to employ its own method of selection for selection of teachers. Therefore, the argument of the learned counsel appearing for the petitioner that had the 2nd respondent continued with the same selection method, to which the petitioner was called for written examination to fill up Graduate Assistants in physics subject, the petitioner could have been selected, but, in view of the sudden change of mode of appointment from written examination to the selection through seniority maintained in the employment exchange, the petitioner lost his chance of getting the appointment to the post of Graduate Assistant in Physics subject, cannot be accepted. In fact, when the petitioner appeared in the written examination, no doubt, he has secured cut off marks of 103, but, when the status of the petitioner reached, there were 30 more candidates secured the same equal marks of 103 and the petitioner was one among the candidates. Admittedly, there is no challenge nor grievance against the selection procedure that they have not properly followed the process of selection. Further, there is no complaint by the petitioner that overlooking the marks obtained by the petitioner, some other candidates having lesser marks were found selected. Then what is his grievance, the respondents have shifted the mode of selection process from written examination to the employment seniority, even this change in selection process also tends to help the petitioner. Admittedly, the petitioner lost his chance of becoming Graduate Teacher in view of written examination held by the 2nd respondent. Now, the Government thought fit to dispense with the written examination, but to follow only mere seniority maintained in the employment exchange. Therefore, it is always open to the State Government to adopt any method of selection and such power of the State is not amenable to be inferred with by the judicial review. Further, when there were only two additional vacancies against General Turn under Most Backward Class category, two candidate who were senior in the age and date of birth, have got selected, namely, A.Joseph George with total marks of 103 having date of birth as 02.07.1965 and N.Sundararajan with total marks of 103 marks, having date of birth as 26.06.1966, in the above said two additional vacancies filled in General Turn under Most Backward Class category, whereas the date of birth of the petitioner being 15.04.1969 and the cut off date of birth for 103 marks given by the 2nd respondent being 26.06.1966, the 2nd respondent has considered, who was senior in age for selection and now all the posts relevant for the year 2006-2007 have already been filled up, therefore, the case of the petitioner, as sought for in the prayer, cannot be considered. Accordingly, the writ petition is dismissed. No Costs. W.P.No.27717 of 2007 Originally, the present writ petition in W.P.No.27717 of 2007 https://hcservices.ecourts.gov.in/hcservices/ was filed with a prayer to issue a writ of mandamus to direct the 2nd respondent, to select the petitioner to the post of Graduate Assistant for Government Middle/High/Higher Secondary Schools 2006- 2007. But, subsequently, the petitioner filed an application to amend the prayer. This Court by an order dated 12.12.2009 in M.P.No.1 of 2009 in W.P.No.27717/2007, has permitted the petitioner to amend the prayer and as per the order dated 12.12.2009, the amended prayer made in writ petition to issue a writ of certiorarified mandamus calling for the records, relating to the letter bearing Ref.No.15152/02/2006-9, dated 09.10.2006 issued by the 1st respondent changing the method of appointment for Graduate Assistants for the year 2006-2007 as being illegal, arbitrary and in violation of Articles 14 and 16 of the Constitution of India and to quash the same and consequently direct the respondents to select the petitioner as Graduate Assistant in Mathematics (G.030 – Roll No.G03010587, Mathematics) in any of the Government High Schools vide it's selection process in pursuance of its notification for direct recruitment of Graduate Assistants for Government Middle/High/Higher Secondary Schools – 2006-2007 and thereafter to take recourse to recruitment of Graduate Teachers through Employment Exchange, based on the seniority. 2. The petitioner having possessed B.Sc (Maths) Graduate with B.Ed. in first class, registered her name in the Nagarcoil Employment Exchange and her Registration No.W/12540/99 and she is also belonging to Backward Class Community. The 2nd respondent/Teachers Recruitment Board called for application from the qualified candidates for direct recruitment of Graduate Assistants for Government Middle/High/Higher Secondary Schools, for the year 2006-2007, by specifically mentioning therein that only those candidates, who have registered their Bachelors Degree/Post Graduate Degree with B.Ed./B.T. in any Employment Exchange on or before last date of submission of application form and who hold upto date registration card are eligible for the post of Graduate Assistants. In the said notification, it was mentioned as follows:- No. of years Marks 1 to 3 years 1 3 to 5 years 2 5 to 10 years 3 above 10 years 4 In respect of teaching experience in 6 to 10th standards in any of the recognized school, the marks will be awarded as follows:- No. of years Marks 1 to 2 years 1 2 to 5 years 2 above 5 years 3 In response to the above said notification, the petitioner submitted her application for the post of Graduate Assistants in Mathematics. https://hcservices.ecourts.gov.in/hcservices/ After writing the written examination on 5.11.2006, the 2nd respondent invited the petitioner to the office of the 2nd respondent for certificate verification on 20.04.2007 at 9.30 a.m. vide letter dated 10.04.2007. Accordingly, the petitioner attended the office of the 2nd respondent on 20.04.2007 and her certificate also verified. The 2nd respondent also intimated provisional result informing the petitioner that she was also selected provisionally for the mathematics subject, but it was shown that 192 candidates were selected provisionally for the mathematics subject. The petitioner cut off marks being 93, the only grievance of the petitioner in the present writ petition is that when another candidate, who secured 93 marks with Roll No.G03020032 (BW) in Serial No.103 of the provisional list has been selected, the petitioner though having equal marks of 103, has not been selected. Therefore, the non selection of the petitioner, who also secured 93 marks, being arbitrary, filed the present writ petition on the ground that her representation dated 21.05.2007 has not been considered. 3. Learned counsel appearing for the petitioner submits that though the petitioner who secured 93 marks, was not selected, another candidate who secured the same marks was found selected and, therefore, it was complained that the 2nd respondent failed to follow the legal yardstick for preferring one candidate against another in case of similar marks. 4. In reply, learned Government Advocate appearing for the respondents submits that in accordance with G.O.Ms.No.100 School Education (Q2) Department, dated 10.08.2004, and Government Letter No.12985/Bud-2/06-4, dated 26.06.2006, the 2nd respondent notified the vacancies in Tamil and English dailies inviting application from eligible candidates, who had registered their names in the Employment Exchange for the post of Graduate Assistants. The said notification also specifically mentioned the communal rotation of 69% communal reservation and also reserved for women, physically handicapped and blind. The mode of selection was also specifically mentioned that there would be a written examination comprising of a single paper of three hours duration for 150 marks. The said notification further mentioned that the provision for selection of candidates would be based on written examination marks and weightage marks secured by the candidates and as per the communal roster. As per the procedure in the application for selection of eligible candidates, written examination was conducted and thereafter, provisional list of candidates, who were short listed for certificate verification and the same was also published on 01.12.2006. The petitioner, M.Sisilarani, with Roll No.G03010587, has secured 93 marks out of 150 in written competitive examination and she was also awarded one mark for the period of wait in the employment exchange and the total marks secured by her was only 93 marks (92+1). The petitioner being a BC Category, the cut off marks for Backward Class General (BG) was 95 and the Backward Class (women) (BW) was 93 marks. As per the Government Order in force, the other things being equal, date of birth has to be taken into account for fixing inter se-seniority. https://hcservices.ecourts.gov.in/hcservices/ When two or more candidates get same marks, they are arranged in seniority on the basis of date of birth. As per the records, the last selected BC(Women) candidate having Roll No.G03020032 has secured 93 marks and had her date of birth is 19.05.1981 and the petitioner's date of birth is 27.05.1982. But, the petitioner being junior in date of birth, in accordance with rules in existence, the board has considered the candidate, who was senior in age for selection, because, the cut off date of birth for 93 marks is 19.05.1981. Therefore, the writ petitioner could not be considered for selection as per the rule in existence. On that basis, prayed for dismissal of the writ petition. 5. Heard the learned counsel appearing on either side and perused the materials available on record. 6. The petitioner took part in the written examination and secured 92 marks and one mark for her waiting period in the employment exchange and totally, she has secured 93 marks. From 2001-2002 onwards, written competitive examinations were introduced for recruitment of all categories of teachers. The petitioner, in response to the notification issued in the year 2006, applied for the post of Graduate Assistants in Mathematics and after writing written examination on 5.11.2006 held by the 2nd respondent, she was called to the office of the 2nd respondent for certificate verification on 20.04.2007. After verification of her certificate, she came to know that she was awarded 93 marks and found provisionally selected with a Serial No.192 for the mathematics subject. As per the Government Order inforced, when two or more candidates get same marks, they are arranged in seniority on the basis of the date of birth for the purpose of fixing seniority. As per the records, the last selected BC(Women) candidate with 93 marks has her date of birth as 19.05.1981, but the date of birth of the petitioner being 27.05.1982, even though, the petitioner reached cut off marks of 93, she could not reach the cut off date of birth. Therefore, in accordance with the rule in existence, the Board considered the candidate, who was senior in age for the selection in the mathematics subject. The last selected Backward Class (Women) candidate with Roll No.G03020032 has secured 93 marks and her date of birth is 19.05.1981, but the date of birth of the petitioner being just one year later than the last selected candidate, the candidature of the