IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:14.09.2006 CORAM: THE HON'BLE MR. JUSTICE P.JYOTHIMANI W.P.Nos.25227, 30741 and 31380 of 2006 and M.P.Nos.1 to 3 in W.P.No.25227 M.P.Nos.1 & 2 in W.P.Nos.30741 and 31380 of 2006 K.Indirani ... Petitioner in W.P.No.25227 of 2006 R.Sivasubramaniyam ... Petitioner in W.P.No.30741 of 2006 R.Jayachitra ... Petitioner in W.P.No.31380 of 2006 Vs. 1. The State of Tamil Nadu Rep. By Secretary to Government, Education Department, St.George Fort, Chenani 600 009 2. The Director of School Education, DPI Compound, College Road, Nungambakkam, Chennai 600 006. 3. Teachers Recruitment Board, Rep.by its Chairman, 4th Floor, E.V.K.Sampath Maligai, DPI Compound, College Road, Chennai 600 006. ... Respondents in all the W.Ps. PRAYER IN W.P.No.25227 of 2006 : Petition filed under Article 226 of the Constitution of India for the issuance of a writ of Certiorarified Mandamus calling for records comprised in Notification in Advt.No.1/2006-07 issued by the Third respondent dated 26.07.2006 and to quash the Clause 8 and 10 of the said notification requiring to undergo written examination for making appointment to the post of Teacher at School level and consequently direct the respondents to dispense with the method of holding written examination for filling up the post of Teacher at School level in future. PRAYER IN W.P.No.30741 of 2006 : Petition filed under Article 226 of the Constitution of India for the issuance of a writ of Certiorarified Mandamus calling for records comprised in Notification in Advt.No.1/2006-07 issued by the Third respondent dated 26.07.2006 and to quash the Clause 8 and 10 of the said notification requiring to appear https://hcservices.ecourts.gov.in/hcservices/ the petitioner for written examination for the post of the school teachers and consequently direct the respondent to dispense with the method of holding the written examination for filling up the school teachers post. PRAYER IN W.P.No.31380 of 2006 : Petition filed under Article 226 of the Constitution of India for the issuance of a writ of Certiorarified Mandamus calling for records comprised in Notification in Advt.No.1/2006-07 issued by the Third respondent dated 26.07.2006 and to quash the Clause 8 and 10 of the said notification requiring to undergo written examination for making appointment to the post of Teacher at School level and consequently direct the respondents to dispense with the method of holding written examination for filling up the post of Teacher at School level in future. For Petitioners :Mr.V.Ayyathurai in W.P.No.25227 of 2006 and W.P.No.31380 of 2006 Mr.V.S.Kesavan W.P.No.30741 of 2006 For Respondents :Mr.M.Sekar Special Government Pleader Education Assisted by Mr.P. Gopiraja, Govt. Advocate O R D E R All these writ petitions are filed challenging the notification dated 26.07.2006 issued by the third respondent namely the Teacher Recruitment Board, Channai, in respect of Clause 8 and 10 of the said impugned notification requiring the candidates to undergo written examination for making appointment to the post of teachers at school level and also for a consequential direction against the respondents to dispense with the method of holding written examination for filling up of vacancies for the post of teachers at school level in future. 2. The petitioners have acquired Post Graduate degree in various subjects like Botany, Zoology, etc., and they have registered with the Employment Exchange. In respect of the petitioner in W.P.No.25227 of 2006, the registration was on 30.07.1985, the petitioner in W.P.No.30741 of 2006, the registration was on 03.05.1991 and the petitioner in W.P.No.31380 of 2006, the registration was on 15.06.1983 and which has been periodically renewed till date. Apart from the said Post Graduate degree, the petitioners have obtained B.Ed., degree and also M.Ed., in respect of the petitioner in W.P.No.25227 of 2006 and W.P.No.31380 of 2006 and they are all qualified for appointment as Post Graduate Assistants at school level and they have worked in some of the private educational institutions on a consolidated pay. https://hcservices.ecourts.gov.in/hcservices/ 3. According to the petitioners, whenever vacancies for the post of teachers in schools as well as the Lecturers in colleges arose the usual method was that the said vacancies were filled up among the candidates who have registered their names in the Professional and Executive Employment Exchange Office, based on which call letters will be issued on the seniority basis in employment registration and it was the legitimate expectation that the petitioners would get appointment on seniority basis through the Employment Exchange Office. The petitioners have also informed about their higher qualifications of M.Phil, M.Ed., etc. to the Employment Exchange. The normal method is that the Employment Exchange used to send candidates on the basis of seniority in the registration in the Employment Exchange at the rate of 1:3 ratio to the appointing authorities. It was from 2001, the Government has introduced a method of appointment of teachers through Teachers Recruitment Board by making necessary notifications. The appointment by the Teachers Recruitment Board was by way of written examination followed by interview. Even though the petitioners have earlier applied consequent to the Teachers Recruitment notification, they could not compete with the fresh candidates since the written examination procedure favours only fresh candidates and therefore the candidates like the petitioners were deprived of their right of appointment in Government, Government aided schools and also Government Colleges. It is also stated that in respect of the appointment of Lecturers in the college level, the written examination has been dispensed with. While the recruitment of teachers are made in respect of colleges and schools only by the third respondent, regarding the Lecturers in colleges the method choosen is by interview while for appointment of teachers in school level the written examination has been prescribed. 4. The Government announced 659 vacancies in the school teachers to be filled up apart from 1600 post of Lecturers in colleges. It was pursuant to the said announcement the third respondent on behalf of the Government of Tamil Nadu has issued the impugned notification dated 26.07.2006 on all newspapers calling for applications for the direct recruitment of Post Graduate Assistant / Physical Education Directors Grade I for Government Higher Secondary Schools in 2006-2007. As per the said notification, the commencement of date of sale of application forms by the Chief Educational Officers was from 27.07.2006 and the last date for the said sale was stated as 11.08.2006. It is also stated that the last date for submitting the filled in application is 11.08.2006 and the date of written examination is fixed as 17.09.2006 to be held in all the 30 district Head Quarters. The impugned notification as well as the prospectus issued pursuant to the notification contemplates selection based on the marks obtained by the candidates in the written examination which consists of a single paper for a duration of 3 hours for 150 marks and also by applying the communal roster system and by certificate verification method. The petitioners challenge the said method of selection on various grounds including that the method of written examination for appointment of teachers in the school level is against https://hcservices.ecourts.gov.in/hcservices/ the legitimate expectation of the candidates like that of the petitioners who have completed their Post Graduate course nearly 10 to 20 years before and making themselves eligible and waiting for appointment by way of interview which has been the method followed hitherto. 5. According to the petitioners, resorting to the method of conducting written examination for appointment to school teachers, it only tends to favour the fresh candidates who have come out of colleges afresh who will be naturally well versed in the subjects as freshers and detrimentally affect the old candidates like that of the petitioners who have studied the subjects nearly 20 years ago. That apart, it is the case of the petitioners that while in respect of the appointment of college Lecturers by the same third respondent Teachers Recruitment Board a different method of interview is followed for selection, only in respect of the teachers for appointment in the High School the written examination method is resorted to which is arbitrary, unreasonable and opposed to the public policy according to the petitioners. The impugned notification does not consider the relevant factors like the seniority of the candidates in the registration in the Employment Exchange which has been followed hitherto and the respondents have not even fixed any ratio between the candidates registered in the Employment Exchange and others. The loss of memory regarding the academic knowledge in the passage of time is only a natural phenomena and that should not prevent the petitioners from getting employment as teachers especially when there is no age limit for the appointment which is presumably upto 57 years of age. 6. It is also the case of the petitioners that, even though the impugned notification contemplates weightage marks for the candidates registered in the Employment Exchange and also the previous experience of the persons who have been teachers like that of the petitioners in any recognized schools, the said concession of adding weightage marks to such candidates has virtually no meaning, for the reason that the impugned notification states that the weightage marks will be added after certificate verification for the purpose of short listing candidates which means that the selection process is over, apart from the fact that really deserving candidates like that of the petitioners can never reach the zone of consideration for the purpose of appointment as school teachers. 7. According to the petitioners, since as per the impugned notification, the weightage marks is sought to be added after certificate verification, it means in effect that the persons like that of the petitioners who have completed their qualified examination much earlier and at the same time are qualified for appointment as teachers, are sent out at the threshold. The benefit of the weightage mark is conferred only to those candidates who found place in the short listed list and denying to all other candidates including that of the https://hcservices.ecourts.gov.in/hcservices/ petitioners. Therefore, among the candidates who have passed the qualifying examination earlier and registered themselves under the Employment Exchange who are forming a class by themselves, in respect of giving the concession of weightage marks there is discrimination between such candidates who are short listed and those who have not been able to come within the short list namely zone of consideration. Therefore, according to the petitioners, this is violative of Article 14, 16 and 21 of the Constitution of India. 8. The respondents have filed the counter affidavit. According to the respondents, the Teacher Recruitment Board was constitutioned in the year 1987 for appointment of regular teachers in the Tamil Nadu Higher Secondary Educational Services and the Tamil Nadu Subordinate Services. It was from 2001 - 2002 the method of competitive examination was introduced for recruitment of all categories of candidates and the final selection was made based on merits and communal rotation. It is also admitted by the respondents that prior to 2001 the selection procedure was by conducting interviews for assessing merits from among the candidates sponsored by Employment Exchange. It was due to the change in policy and also on account of the intervention by the decision of the Court, the practice of conducting written examination for selection of teachers was undertaken and thereafter the system of written examination followed by viva-voce and certificate verification being uniformly followed and adopted. Therefore, according to the respondents, from 2001 the Government has taken a policy decision to conduct written examination for selection of teachers in the schools and that decision was taken in accordance with the Government letter dated 10.09.2001. The said policy decision was taken for the purpose of improving the quality and content of teaching to the students of Government schools that is by conducting written examination based on the syllabus issued, the selection is made after assessing the latest upgraded knowledge of candidates in respect of the syllabi for VI to XII standards in the High Schools and Higher Secondary Schools. The competitive examinations and interviews are the recognized recruitment methods and the appointments are made based on merits and communal rotations based on the concept of social justice. It is the case of the respondents that since 2001 nearly 30000 teachers were recruited by following this process and there was no complaint. According to the respondents if the candidates like the petitioners feel that they cannot compete with the other candidates who applied pursuant to the notification, it is always open to them to seek appointments in the large number of aided and Matriculation Schools and therefore according to the respondents it is not as if the petitioners are left in lurch by the policy of the Government. Eventhough it is true that before 2001 the selection was made by way of interview and registration in the Employment Exchange by calling for 1:3 from the exchange for every post, in the advancement of technology, the written examination was introduced from 2001 like Public Service Commission and other recruitment agencies and therefore the same cannot be questioned. The respondents also state that it is based on the https://hcservices.ecourts.gov.in/hcservices/ written examination in single paper for maximum 150 marks conducted on objective type of questions out of which 110 is allotted to marks to the subjects, 30 marks allotted for educational methodology and 10 marks for general knowledge. The entire valuation is computerized under the Optical Mark Reader (OMR) and there was absolutely no chance for any error. 9. After the written examination in which the marks are assessed and candidates are listed based on merit, there will be a certificate verification based on merit and communal reservation by following roster system. After verification of all certificates, upto seven marks are added as weightage marks out of which four are marks awarded for the period of wait in Employment Exchange and three for teaching experience of relevant classes. For the year 2006-2007, the vacancies were notified strictly in accordance with the communal roster as per G.O.Ms.No.85 Personal and Administrative Reforms dated 26.05.2000 and G.O.Ms.No.105 Personal and Administrative Reforms Department dated 20.06.2000 and the third respondent has notified the vacancies in accordance with the Government letter dated 26.06.2006 in all Tamil and English dailies inviting applications with the last date for receipt of application as 11.08.2006 and fixing the date of competitive examination as 17.09.2006. Based on the advertisement the third respondent has received 46,000 applications for recruitment to fill up 659 posts and therefore according to the respondents if they are not permitted to proceed with the examination the large number of candidates will be affected. 10. It is also the case of the respondents that the syllabus given for the purpose of written examination is also to facilitate the people like petitioners who have completed their Post Graduation 20 years ago and the candidates who have registered in the Employment Exchange in Tamil Nadu who are also entitled to participate. Since it is the method of competition, this system has worked well for the past six years without complaints. It is also the case of the respondents that any candidate belong to any community can apply even at the age of 57 years, since the age of superannuation of the Government Servants is 58 years. It is also the case of the respondents that while the freshers are not given weightage marks during certificate verification, the old candidates like that of the petitioners are given benefit of the weightage marks. As a person who is desiring to teach the students in the High School and Higher Secondary School Level, the petitioners must certainly equip themselves with the modern standard and mere registration in the Employment Exchange does not ensure in the right of appointment without undergoing the selection process as per the policy of the Government. The syllabus for the written examination is designed appropriately by keeping in view the academic requirements of teachers for teaching class VI to XII as per the new and improved syllabus system and the said syllabus were approved by the Government. The petitioners have got every opportunity to update their knowledge. https://hcservices.ecourts.gov.in/hcservices/ 11. It is also the case of the respondents that the Government will not take into consideration the Employment seniority even in respect of Lecturers in the Government Arts and Science Colleges and the Government has not yet notified the vacancies for the recruitment of Lecturers in the Government Arts and Science Colleges for the year 2006 - 2007, since certain clarifications are pending. It is also the case of the respondents that the similar relief prayed before the Tamil Nadu Administrative Tribunal in 2001 in O.A.No.6250 of 2001 etc., batch was dismissed by the Tribunal on 07.01.2003 stating that the employer has got a right of choosing the method of selection, however subject to the reservation policy based on the requirement of efficient teachers. It is also stated that a similar case filed in 2004 before this court in W.P.No.4116 of 2004 was dismissed on 03.03.2004 holding that it is for the recruitment agency to decide about the qualification required for the persons who have applied for the recruitment and also to decide about the mode of test and held that the mode of test is not arbitrary. 12. A reply affidavit has been filed on behalf of the petitioners especially in W.P.No.25227 of 2006. The petitioner would state that the counter affidavit filed by the respondents are contrary to the earlier Government Orders. In this regard, the petitioner would state that the earlier Government Orders based on which the policy of selection was introduced wherein the method of selection was by Employment Exchange seniority apart from interview and there is no proper reason for the change of policy, apart from reiterating that there cannot be different yardstick for the appointment of college Lecturers and the School teachers by the same third respondent board. While the respondent would state in the counter affidavit that the present policy is based on the latest teaching development, even in the impugned notification it is stated that the syllabus for the written examination is as that of the year 2001 - 2002. Therefore according to the petitioners, the written examination is only a farce and there is absolutely no reason for switching over from earlier method of recruitment to the new method. 13. It is also the case of the petitioners that the candidates can take special coaching to appear for written competitive examination, the same would deprive the rural candidates and people from the poor strata of the community who aspire such appointments. It is also the case of the petitioners that having deduced a policy of giving weightage marks for previous experience and the seniority in the registration in the Employment Exchange, the said benefit has not been extended to all candidates but restricted only to candidates who have come within the short listed category on the basis of the marks obtained in the written examination only and therefore according to the petitioner it is a clear case of arbitrariness, violative of the principles of equality and natural justice. 14. It is also the case of the petitioner that the allegation of the respondents in the counter affidavit that it is the policy of the https://hcservices.ecourts.gov.in/hcservices/ Government in the changing educational pattern from the present year onwards has no basis whatsoever by referring to the clause in the advertisement itself stating that the syllabus for the examination was as that of the old syllabus of the year 2001 - 2002. Therefore the averment as if the examination is for the purpose of making proper selection is only an unbelievable story. As far as the decisions given earlier in the Tribunal and also in the writ petition, the petitioners would submit that they are distinguishable by the facts and circumstances individually. 15. Mr.S.Ayyathurai learned counsel appearing for the petitioner would submit that while admittedly hitherto the policy of the Government in making recruitment of school teachers as it is continued in respect of college Lecturers as on today was by sponsorship from Employment Exchange and interview, there is absolutely no reason for switching over to a new process of written examination. The learned counsel also would contend that while the respondents would say that the selection is based on reservation policy namely by adopting roster system, a reference to the advertisement would show that in majority of cases the required number of vacancies to each subjects is less than 50 and therefore, the opportunity of the Schedule Tribe candidates in getting selected is made impossible. Therefore according to him the concept of reservation is to give adequate representation to the depressed class of people and this method only deprives the Schedule Tribe candidates and therefore the impugned notification is to be set aside on the basis that the reservation policy is not properly implemented. 16. The learned counsel also would attack the method of selection given in the prospectus and notification. When admittedly the marks obtained in the written examination is stated to be the sole criteria for short listing the candidates, it is strangely stated that there will be a certificate verification and after certificate verification is over, the list is prepared and then the weightage marks are added in respect of experience as well as the registration in the Employment Exchange which means that it totally deprives the persons who have registered with employment exchange and completed the qualifying examination 20 years ago like that of the petitioners from coming within the preview of zone of consideration. It is the further case that among the candidates like petitioners who have completed their qualifying examinations 20 years ago and are eligible even as on date for consideration to the appointment and also registered under the employment exchange are arbitrarily discriminated by creating a class among themselves namely that those persons who have registered under the Employment Exchange with experience and have come within the zone of consideration after certificate verification and those who do not come under the certification verification while both of them are equally situated. Therefore, according to the learned counsel for the petitioners it amounts to classification within the class which is not permissible and is violative of the Article 14 of the Constitution of https://hcservices.ecourts.gov.in/hcservices/ India. The learned counsel also would submit that while admittedly in respect of the appointment of the College Lecturers, the policy of written examination has not been followed by the third respondent, there cannot be a different yard-stick in respect of appointment of school teachers by implementing the written examination system and therefore according to the learned counsel for the petitioners it is again discriminatory in character. It is also pointed out by the learned counsel for the petitioners that the respondents have not even stated in the counter affidavit that the method of written examination is suitable for school teachers. On the other hand the interview will be sufficient for college Lecturers. 17. The learned counsel for the petitioners also would refer to a letter of the Secretary to Government, School Education Department dated 10.09.2001 under which while speaking about the policy of written examination, the Secretary would state that in respect of identification of rural candidates for giving weightage marks clarification will be issued after the Government takes a decision and therefore the same need not be made in the advertisement. However, as on date no such clarification has been issued and therefore according to the learned counsel, the policy is not completed. The learned counsel also would rely upon the rules of procedure of the Teachers Recruitment Board issued in 1988 in which it was stated while explaining about the method of selection under Rule 5 that the same is on the basis of total marks awarded in the interview to be conducted by the board which includes the weightage marks which are given under Rule 7. The awarding of weightage marks were issued by the Government under various orders from 1989 to 1999 and the interviews so far has been considered to be a criterion for selection process. The learned counsel would submit that method of selection