IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.08.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.13860 of 2009 and M.P.Nos.2 and 3 of 2009 K.Govind Kamarajar ...Petitioner Vs. 1.The Director of School Education, Department of Education, Govt. of Puducherry, Puducherry - 605 001. 2.The Union of India, Rep. By its Chief Secretary to the Government of Puducherry, Chief Secretariat, Puducherry - 605 001. 3.The Education Secretary, Govt of Puducherry, Chief Secretariat, Puducherry - 605 001. 4.The Regional Director, National Council of Teacher Education, Bangalore, Karnataka. ...Respondents Writ Petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorarified mandamus, to call for the records on the file of the first respondent in notification No.700/DSE/Accts.II/UI/2009-2010 and quash the same as illegal, incompetent and without jurisdiction and arbitrary and further direct the respondents 2 and 3 to recruit the petitioner as Computer Teachers in the institution under its control. For Petitioner : Mr.V.Lakshmi Narayanan For Respondents : Mr.E.Vijay Anand,G.A.(Pondy) for R1 to R3 O R D E R Though initially, the writ petition was filed in the name of Puducherry Computer Science and B.Ed., Graduates Welfare Association, subsequently, it was altered in the name of the petitioner viz., K.Govind Kamarajar, who is the Joint Secretary of the said Association. The alteration came to be made on the basis of the objection raised by the Registry. Therefore, the petitioner https://hcservices.ecourts.gov.in/hcservices/ on 21.07.2009, made an endorsement that he is restricting the relief only to the deponent of the affidavit viz., K.Govind Kamarajar. 2. The first respondent viz., Director of School Education, Government of Puducherry issued a notification calling for technical and commercial Bids for supply and installation of computer hardware, peripherals, software and for providing computer education services in 169 selected Government High/Higher Secondary Schools in Puducherry State under the centrally sponsored Information and Communication Technology @ School Project. Challenging the said notification, the writ petition came to be filed. 3. When the matter came up on 21.07.2009, this Court granted an interim stay on the ground that the tender called for was contrary to the earlier order passed by this Court in W.P.No.33943 of 2007 dated 29.04.2009 in so far as the tender notice relates to the period of five academic years, from 2009 - 2010 to 2013 - 2014. The said interim order subsequently was extended by a further order dated 16.09.2009 for further limited period. Subsequently, it transpires that the Government by proceedings dated 22.11.2010 had selected Instructors in Computer Science and issued a provisional list of selectees. 4. Aggrieved by the grant of interim order, the official respondents have filed vacate stay application in M.P.No.3 of 2009 together with supporting counter affidavit dated 12.08.2009. For reasons, best known, the matter was not taken up. Subsequently, when the matter came up on 02.12.2010, the writ petition was admitted. 5. The contention of the petitioner was that the Association under which he is the Joint Secretary has its members who have completed their educational course and they are qualified and trained Teachers of Computer Science. They are also professionally trained to teach Computer Science both in High Schools and Higher Secondary Schools. Computer Science Course was introduced in Puducherry in the year 1996. Even though, there were hundreds of qualified teachers available to teach computer education, it was taught for students through Private Agency and most of the persons appointed were not qualified. Subsequently, the Government introduced Computer Education from IV Standard to X Standard for the academic year 2007-2008. For this scheme, the Central Government was to provide computers to each High School. Without recruiting and appointing professionally trained computer teachers, when the respondents attempted to outsourced the computer education by calling for tenders, their Association had filed a writ petition being W.P.No.33943 of 2007. The said matter heard by a Division Bench of this Court was finally disposed of by an order dated 29.04.2009. In that writ petition, they had challenged the notification of the first respondent dated 05.10.2007 as illegal, unconstitutional and arbitrary. The Division Bench in paragraphs 25 and 26 held as follows:- https://hcservices.ecourts.gov.in/hcservices/ "25. ....It is evident that the period of five years from 2007-2008 to 2011-2012 includes both computer hardware, software and connected accessories and also imparting computer education to students, Spoken English and Personality Development Services. The above said tender condition specifying contract period for five years is contrary to the stipulation made in the scheme that the period shall not exceed one year. Therefore, to that extent, the tender condition is against the tenor of the scheme. Therefore, the first respondent could be directed to restrict the period of contract initially for a period of one year and the tender condition could be suitably amended to that extent. 26. In our considered opinion, the impugned tender notification cannot be held to be not in consonance with the objects of the scheme envisaged by the Central Government except the period of contract which could be restricted to one year as mentioned in the Scheme. In other respects the impugned tender notification is upheld. 27.The writ petition is ordered accordingly. In the meantime, the Government can amend the existing rules in order to appoint computer teachers on regular basis. No costs. M.P.No.2/2007 is closed." 6. It was also stated that the Special Rules sets out the qualification and method of recruitment of Instructors in Higher Secondary Schools. Instead of going for such a recruitment, the respondents have once again called for a tender that too for a period of five years from 2009-2010 to 2013-2014 under the Information and Communication Technology (ICT) Programme at Schools Scheme in respect of 169 High School and Higher Secondary Schools in Puducherry. The successful Bidder will be required to supply, install computer systems, including networking equipment, other specified Hardware, Uninterrupted Power Systems (UPS) of prescribed specifications and Computer furniture. They must also provide regular maintenance of aforesaid systems including Computer hardware, software and the UPS for the period of contract. They must also provide for a duly qualified faculty with required skills for each of the computer lab in each of the Schools. They must also provide training to the teachers of the schools where the systems will be located and must also provide training to the students of classes 6 to 12 in the schools. 7. The petitioner had challenged the notification only on the ground that it violates the earlier order of this Court, wherein exception was taken for a five year contract. It is not clear as to how such a writ petition is maintainable that too at the instance of one individual. The claim of the petitioner was that he was qualified to teach computer science to the students and therefore, no outsourcing is permissible. https://hcservices.ecourts.gov.in/hcservices/ 8. In the counter affidavit filed by the respondents, it was stated that similar contentions have been heard and rejected by the Division Bench of this Court on an earlier writ petition filed by the Association and therefore, the petitioner cannot come up with a similar plea. The present attempt is a clear abuse of process of Court. It was also stated that under the ICT Schools Scheme, the Government of India will provide 75% of the total expenditure and Government of Union Territory has to bear only 25% of the total expenditure and they need not adopt the Central Government Policy in this regard. The Union Territory Government can adopts its own policy. The tender conditions itself stipulates that persons who are to impart education must be qualified. The engagement of Computer instructors under the tender system is not a recruitment in the Government establishment as per the Recruitment Rules. It is only when the process of regular recruitment take place, the question of Rules of reservation and other conditions will apply. When other State Governments had successfully implemented, it is because of the petitioner's continuous litigation that had stalled the implementation of the Scheme. Even though the Central Government had sanctioned Rs.169 lakhs for the year 2007-2008, the same could not be implement because of the litigation. 9. Mr.V.Lakshmi Narayanan, learned counsel for the petitioner contended that it is no doubt true that the issues raised herein had already been answered but the only question was that the duration of the contract for which there is a specific direction by the Division Bench and that has not been followed in the impugned tender. Therefore, they are entitled to maintain the writ petition. 10. It must be noted that while the claim made by the petitioner is for their future employment in the schools to teach computer science, whereas, the tender conditions quoted by the Government is comprehensive to cover not only supply of hardware and software and maintenance, but also to impart training to the existing Teachers as well as to teach the students. This cannot be done either by the petitioner or by the members of his Association. Infact the Division Bench itself had observed that there cannot be any exception to the conditions of tender. As to what should be the terms of the tender should be left to the discretion of the State Government and they cannot put spokes in implementing the policy by the State Government. 11. In fact when a similar challenge came before this Court by making similar contention, this Court had no hesitation to reject the said contention in a decision in E.Chandravadanam and others v. The State of Tamil Nadu and others reported in 1999 2 MLJ 306. In that judgment, while upholding the action of the State of Tamil Nadu, in paragraphs 17,18, 20,25 and 27, it has been observed as follows:- "17... Any permanent investment on the equipments, therefore, would cost substantial expenditure for https://hcservices.ecourts.gov.in/hcservices/ the Government. But at the same time, the emergent necessity of imparting computer education to the students studying in Government schools, in mofussil and rural areas, cannot either be ignored or postponed. Inadequacy in infrastructure, economic disparity within the population, denial of adequate and equal opportunity to many people to avail computer education as well as the obligation on the part of the Government to impart computer education even to the students studying in the Government schools, in rural and mofussil areas, are all matters rightly weighed the minds of the Government and consequently the Government desired that all the students passing out of the Government Schools should be computer literate, and as a result, the Government have drawn a scheme to impart computer education by inviting sealed rate contract tenders from reputed organisations/ Institutions/Computer Training Centres, individually or as Consortium, for the leasing of Computer Hardware, Software and connected accessories and providing computer Education services.... 18. Once the computer education is felt as the necessity of the time for the economic and social development of the state in the present global competition and the Government have thus taken a policy decision to make all the students passing out of the Government schools should be computer literate and has drawn a scheme to that effect to achieve the desired results expeditiously from the ensuing academic year, i.e., 1999 – 2000 it may not be proper for this Court to test the merits and demerits of such policy decision by way of judicial review under Art.226 of the Constitution of India. 20. A reading of the eligibility criteria to be fulfilled by the bidders, special terms and conditions of the tender notice, conditions of the contract and clarifications made by the Government on the queries raised by the bidders in the pre-bid conference make it clear that the Government, realising the administrative exigency in implementing the policy by the normal process would consume more time for centralised purchase of computer Hardware, Software and connected accessories, selecting and recruiting the teaching personnel through the employment exchange, have taken all reasonable care and caution in drawing the scheme as a result-oriented one. Obviously a scheme of this nature cannot be effectively and expeditiously implemented within a short span of time if such normal procedure is adopted and the https://hcservices.ecourts.gov.in/hcservices/ desired result of the Government cannot be achieved through the normal process. Therefore, the administrative exigency in inviting sealed rate contract tenders to achieve the object behind the policy cannot be disputed. 25. The contention of the petitioners that the scheme of the Government violates the reservation policy of the Government also cannot be accepted as the rules of reservation are not applicable to the case in hand. When the Government have neither created nor sanctioned any permanent post under the scheme to impart Computer Science in the Government Higher Secondary Schools, the question of adhering to the rules of reservation does not at all arise. However, in future, if the Government creates any permanent or sanctioned posts to impart Computer Science in Government Higher Secondary School no doubt such posts shall be filled up by recruiting candidates sponsored by the employment exchange and by following the rules of reservation. 27. It is well-settled in law that the power of judicial review is not concerned with the merits or correctness of the decision, but the manner in which the decision is taken. As observed by Lord Keith, judicial review is a protection but not a weapon, and the courts cannot interfere with the policy decisions of the Government unless and otherwise it is shown that the decision-making authority had exceeded its powers or committed an error of law or violated rules of natural justice. That apart, the impugned scheme being one in the nature of a contract to be entered into on behalf of the State, it may not be proper for this Court to cross its inherent limitations and to interfere with the policy decision of the Government taken in the interest of the student community, public interest and common good or otherwise it would amount to an encroachment on the exclusive rights of the executive to take such policy decisions." 12. It will not be out of place to state that subsequent to the implementation of the Scheme in Tamil Nadu, even the adhoc appointees who were appointed by outsourcing agencies claimed regularisaton and the State of Tamil Nadu conducted a limited competitive examination in respect of those Computer Instructors and sought to regularise their services. When that was challenged, a Division Bench of this Court upheld the policy of the Government to regularise the service of those Computer instructors as against the claim made by the computer science teachers vide judgment in Higher Secondary School Computer Teachers Association, rep.by its President V. Tamil Nadu Computer Science B.Ed. Graduate Teachers Welfare Society rep. by its Treasurer reported in 2009 WLR 127 https://hcservices.ecourts.gov.in/hcservices/ 13. The matter was taken to the Supreme Court and the Supreme Court did not find the policy of the State Government as erroneous, but had took exception for the State Government in fixing minimum marks as 35% for getting selected. On the other hand, it had fixed 50% as cut off marks for entering into the Government service and even the review application was dismissed by the Supreme Court. See for Ref: 1. 2009 (14) SCC 517 2. 2010 (1) SCC 528 14. In view of the above, there is no case made out to interfere with the impugned tender notification and there is no violation of any order passed by this Court. Hence, the writ petition stands dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar svki To 1.The Director of School Education, Department of Education, Govt. of Puducherry, Puducherry - 605 001. 2.The Chief Secretary to the Government of Puducherry, The Union of India, Chief Secretariat, Puducherry - 605 001. 3.The Education Secretary, Govt of Puducherry, Chief Secretariat, Puducherry - 605 001. 4.The Regional Director, National Council of Teacher Education, Bangalore, Karnataka. 1 cc To Mr.V.Raghavachari, Advocate, SR.47309. 1 cc To The Senior Government Pleader-cum -Senior Public Prosecutor for Pondicherry, SR.47163. W.P.No.13860 of 2009 NR(CO) RVL 16.08.2011 https://hcservices.ecourts.gov.in/hcservices/