1 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.09.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD)Nos.10507 to 10509 of 2011 and M.P.(MD)Nos.1,1&1 of 2011 1.C.Parimaladevi ... Petitioner in WP.10507/2011 2.A.Selvarani ... Petitioner in WP.10508/2011 3.S.Ramanathan ... Petitioner in WP.10509/2011 Vs. 1.The Director of Elementary Education, DPI Complex, Chennai 600 006. 2.The District Elementary Education Officer, Virudhunagar, Virudhunagar District. 3.The Assistant Elementary Education Officer, Kariyapatti, Virudhunagar District. ... Respondents in all WPs. Prayer in all WPs. : Writ petition filed under Article 226 of the Constitution of India, praying for a Writ of Mandamus, directing the respondents to include the name of the petitioner in the list of candidates eligible for counselling for promotion to the post of Graduate Assistant (English), Graduate Assistant (Mathematics), Graduate Assistant (English) respectively for the year 2011 scheduled to be held on 16.09.2011. For petitioners : Mr.M.Gnanagurunathan For Respondents : Mr.S.Chandrasekar Govt. Advocate COMMON ORDER Seeking for a Mandamus, directing the respondents to include the name of the petitioners in the list of candidates, eligible for counselling for promotion to the post of Graduate Assistants for the year 2011, scheduled to be held on 16.09.2011, the petitioners have come forward with the present writ petitions. 2. As the facts and submissions advanced are common, the writ petitions are disposed of by a common order. https://hcservices.ecourts.gov.in/hcservices/ 2 3. The details of the appointment of the petitioners as Secondary Grade Teachers, last date on which, they appeared in the qualifying examinations, publication of results, date of issuance of the provisional certificate, as per the supporting affidavits, in these writ petitions are as follows: Name Entry into service as Secondary Grade Assistant Last appearance of qualifying examination Publication of results Date of issuance of Provisiona l Certificat e P.Parimala devi (petitione r in W.P.10507/ 11) 05.12.2005 November 2010 March 2011 29.03.2011 A.Selvaran i (petitione r in W.P.10508/ 11) 31.10.2005 December 2010 March 2011 14.02.2011 S.Ramanath an (petitione r in W.P.10509/ 11) 26.07.1995 November 2010 March 2011 21.03.2011 4.The Assistant Elementary Education Officer, Kariyapatti, third respondent herein prepared a panel for promotion to the post of B.T. Assistant for the year 2011-12. The petitioners were not included in the said panel. The third respondent, who considered the individual representations of the petitioners, for inclusion in the panel, has rejected the same, on the ground that those, who had passed B.Ed., Degree/B.A. and entered the same in the service register on or before 31.12.2010, alone should be included in the penal, as instructed in Paragraph 11 of the proceedings of the Director of Elementary Education, Chennai. 5.According to the petitioners, as the last examination was held in November/December, 2010, they deemed to have acquired B.Ed.,/B.A. qualifications within the specified period. In support of the same, they have placed reliance on an order of this Court in W.P.No.18573 of 2010, dated 02.09.2010, wherein, this Court, after rejecting the contention of the respondents therein, held that, https://hcservices.ecourts.gov.in/hcservices/ 3 "5......... there is no denial of the fact that the petitioner wrote the qualifying examination in December' 2009, but the results were published only in May' 2010. The moment results are published, they would relate back to the date of the last examination. Therefore, the stand taken by the respondents that the petitioner should have actually obtained the degree before 01.01.2010 is not sustainable. 6. In view of the above, this writ petition is allowed, directing the respondents to consider the petitioner as eligible for recruitment to the post of Graduate Assistant, provided all other conditions are satisfied." 6. In sum and substance, the case of the petitioners are that when the last date of examination taken by them was during the month of November/December, 2010, the same deemed to have been taken as the month of acquiring qualification and rejection of their case, for inclusion is contrary to the judgment of this Court. Heard the learned counsel for the parties and perused the materials available on record. 7. The issue as to whether, when a candidate is deemed to have attained a qualification, after appearing in an examination, has been tested three decades ago in Charles K. Skaria v. C.Mathew reported in 1980 (2) SCC 752, wherein, the Supreme Court, at Paragraphs 20 to 26, held as follows: "Academic excellence, through a diploma for which extra mark is granted, cannot be denuded because proof is produced only later, yet before the date of actual selection. The emphasis is on the diploma; the proof thereof subserves the factum of possession of the diploma and is not an independent factor. The prospectus does say: “(4)(b) 10% to diploma holders in the selection of candidates to M.S., and M.D., courses in the respective subjects or sub-specialities. 13. Certificates to be produced: In all cases true copies of the following documents have to be produced: (k) Any other certificates required along with the application.” This composite statement cannot be read formalistic fashion. Mode of proof is geared to the goal of the qualification in question. It is subversive of sound interpretation and realistic decoding of the prescription to telescope the two and make both mandatory in point of time. What is essential is the possession of a diploma before the given date; what is ancillary is the safe mode of proof of the qualification. To confuse between a fact and its proof is blurred perspicacity. To make mandatory https://hcservices.ecourts.gov.in/hcservices/ 4 the date of acquiring the additional qualification before the last date for application makes sense. But if it is unshakeably shown that the qualification has been acquired before the relevant date, as is the case here, to invalidate this merit factor because proof, though indubitable, was adduced a few days later but before the selection or in a manner not mentioned in the prospectus, but still above-board, is to make procedure not the handmaid but the mistress and form not as subservient to substance but as superior to the essence. 21. Before the selection committee adds special marks to a candidate based on a prescribed ground it asks itself the primary question: Has he the requisite qualification? If he has, the marks must be added. The manner of proving the qualification is indicated and should ordinarily be adopted. But, if the candidate convincingly establishes the ground, though through a method different from the specified one, he cannot be denied the benefit. The end cannot be undermined by the means. Actual excellence cannot be obliterated by the choice of an incontestable but unorthodox probative process. Equity shall overpower technicality where human justice is at stake. 22. The present case is a capital illustration of nominalism battling with realism for judicial success. Both sides admit that the appellants before us had secured diplomas. They further admit (ignoring for a moment the submission on 2% for outsiders) that if the diploma scores were added, the applicants, by the measure of marks, deserve to be selected, provided the diploma obtained in the examination held in 1979 is within time. Then, why did the High Court upset their selection? Because the certificates of diploma were not attached to the applications and communication by the Registrar of the University to the selection committee was an unauthorised mode of proof, deviating from the prospectus, though authentic in fact. Two flaws vitiate this verbally virtuous approach. True, the prospectus directs that certificates shall be produced along with the applications for admission. The purpose obviously is to have instant proof of the qualification. 23. We are aware that when a statute vests a public power and conditions the manner of exercise of that power then the law insists on that mode of exercise alone. We are here unconcerned with that rule. A method of convenience for proving possession of a qualification is merely directory. Moreover, the prospectus itself permits government to modify the method, as the learned Single Judge has pointed out. In this view, we see nothing https://hcservices.ecourts.gov.in/hcservices/ 5 objectionable with the government directive to the selection committee, nor in the communication to the selection committee by the university, nor even in their taking into consideration and giving credit for diplomas although the authentic copies of the diplomas were not attached to the application for admission. A hundred examples of absurd consequences can be given if the substance of the matter were to be sacrificed for mere form and prescriptions regarding procedures. 24. It is notorious that this formalistic, ritualistic, approach is unrealistic and is unwittingly traumatic, unjust and subversive of the purpose of the exercise. This way of viewing problems dehumanises the administrative, judicial and even legislative processes in the wider perspective of law for man and not man for law. Much of hardship and harassment in administration flows from over-emphasis on the external rather than the essential. We think the government and the selection committee rightly treated as directory (not mandatory) the mode of proving the holding of diplomas and as mandatory the actual possession of the diploma. In actual life, we know how exasperatingly dilatory it is to get copies of degrees, decrees and deeds, not to speak of other authenticated documents like mark-lists from universities, why, even bail orders from courts and Government Orders from public offices. This frustrating delay was by-passed by the State Government in the present case by two steps. Government informed the selection committee that even if they got proof of marks only after the last date for applications but before the date for selections they could be taken note of and secondly the Registrars of the Universities informed officially which of the candidates had passed in the diploma course. The selection committee did not violate any mandatory rule nor act arbitrarily by accepting and acting upon these steps. Had there been anything dubious, shady or unfair about the procedure or any mala fide move in the official exercises we would never have tolerated deviations. But a prospectus is not scripture and common sense is not inimical to interpreting and applying the guide-lines therein. Once this position is plain the addition of special marks was basic justice to proficiency measured by marks. 25. We thus reach the conclusion that the three candidates who had been eventually admitted by the selection committee could not be ousted merely for the reason that the certificate of diploma had not been produced together with the application for admission. Nor, indeed, could government be faulted for issuing a directive to https://hcservices.ecourts.gov.in/hcservices/ 6 the selection committee that applications from students of the diploma course could be considered subject to the condition that they would “produce the diploma certificates before finalising the selection to post-graduate courses”. The equity of this instruction of the government comes into bold relief when we realise that no party in this Court has a case that the candidates admitted by the selection committee did not secure a diploma in opthalmology. 26. Even so, there is a snag. Who are the diploma holders eligible for 10 extra marks? Only those who, at least by the final date for making applications for admissions possess the diploma. Acquisition of a diploma later may qualify him later, not this year. Otherwise, the date-line makes no sense. So, the short question is when can a candidate claim to have got a diploma? When he has done all that he has to do and the result of it is officially made known by the concerned authority. An examinee for a degree or diploma must complete his examination — written, oral or practical — before he can tell the selection committee or the court that he has done his part. Even this is not enough. If all goes well after that, he cannot be credited with the title to the degree if the results are announced only after the last date for applications but before selection. The second condition precedent must also be fulfilled viz. the official communication of the result before the selection and its being brought to the ken of the committee in an authentic manner. Maybe, the examination is cancelled or the marks of the candidates are withheld. He acquires the degree or diploma only when the results are officially made known. Until then his qualification is inchoate. But once these events happen his qualification can be taken into account in evaluation of equal opportunity provided the selection committee has the result before it at the time of — not after — the selection is over. To sum up, the applicant for post-graduate degree course earns the right to the added advantage of diploma only if (a) he has completed the diploma examination on or before the last date for the application, (b) the result of the examination is also published before that date, and (c) the candidate's success in the diploma course is brought to the knowledge of the selection committee before completion of selection in an authentic or acceptable manner. The prescription in the prospectus that a certificate of the diploma shall be attached to the application for admission is directory, not mandatory; a sure mode, not the sole https://hcservices.ecourts.gov.in/hcservices/ 7 means. The delays in getting certified copies in many departments have become so exasperatingly common that realism and justice forbid the iniquitous consequence of defeating the applicant if, otherwise than by a certified copy, he satisfies the committee about his diploma. There is nothing improper even in a selection committee requesting the concerned universities to inform them of the factum and get the proof straight by communication therefrom — unless, of course, this facility is arbitrarily confined only to a few or there is otherwise some capricious or unveracious touch about the process." 8. In Ashok Kumar Sonkar reported in 2007 (4) SCC 54, Banaraas Hindu University issued an advertisement for filling up a vacant post of Lecturer. The appellant applied for the said post on 30.05.1995. As till the said date the appellant had not completed his MD in Sharir Kriya, which was an essential qualification for the said post, with his application he enclosed a certificate issued by the Head of the Department concerned in that regard. The appellant passed the said examination on 30.10.1995. he was allowed to appear before the Selection Committee, despite the fact that he did not hold the requisite qualification till the date of filing of such application. he however, was selected and offered an appointment. He joined the said post. In the meanwhile, the 4th respondent therein filed a writ petition before the Allahabad High Court. The High Court dismissed the same on the premise that the said respondent had an alternative remedy. Respondent 4 thereafter moved the President of India in his capacity as the "visitor" of the said University. The "Visitor" was of the opinion that the selection process was illegal. The selection proceeding, therefore, was set aside. However, before the said order was passed, the comments of the University were called for. The Registrar of the University was intimted that the President of India in his capacity as the Visitor of the University had annulled the appointment of the appellant in exercise of the power conferred upon him under Section 5(7) of the Banaras Hindu University Act, 1915 (for short "the 1915 Act"). The appellant challenged the said decision before the High Court by way of a writ petition. The said writ petition was dismissed. Hence the appellant preferred an appeal. While considering the possession of requisite educational qualification and the uncertainty in allowing applications of ineligible candidates, the Supreme Court, at Paragraphs 15 and 20, held as follows: "Possession of requisite educational qualification is mandatory. The same should not be uncertain. If an uncertainty is allowed to prevail, the employer would be flooded with applications of ineligible candidates. A cut- off date for the purpose of determining the eligibility of the candidates concerned must therefore, be fixed. In the absence of any https://hcservices.ecourts.gov.in/hcservices/ 8 rule or any specific date having been fixed in the advertisement, the law, therefore, as held by the Supreme Court, would be the last date for filing the application." 9. It is worthwhile to extract the judgment of the Supreme Court in Bhupinderpal Singh v. State of Punjab reported in 2000 (5) SCC 262, where the Supreme Court considered the decisions in Ashok Kumar Sharma v. Chander Shekhar reported in 1997 (4) SCC 18, A.P. Public Service Commission v. B.Sarat Chandra reported in 1990(2) SCC 669, 1990 (2) SCC 659, District Collector and Chairman, Vizianagaram Social Welfare Residential School Society v. M.Tripura Sundari Devi reported in 1990 (3) SCC 655, Rekha Chaturvedi v. University of Rajasthan reported in 1993 Supp (3) SCC 168, M.V.Nair (Dr.) v. Union of India reported in 1993 (2) SCC 429 and U.P.Public Service Commission v. Alpana reported in 1994 (2) SCC 723, in Ashok Kumar Sonkar's case and held that, "(i) that the cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut-off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications; (ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority. The view taken by the High Court is supported by several decisions of this Court and is therefore well settled and hence cannot be found fault with. However, there are certain special features of this case which need to be taken care of and justice be done by invoking the jurisdiction under Article 142 of the Constitution vested in this Court so as to advance the cause of justice.” 10. The abovesaid legal position has also been reiterated in Shankar K.Mandal v. State of Bihar reported in 2003 (9) SCC 519, where the Apex Court held that, "(1) The cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules. (2) If there is no cut-off date appointed by the rules then such date shall be as appointed for the purpose in the advertisement calling for applications. (3) If there is no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the competent authority.” https://hcservices.ecourts.gov.in/hcservices/ 9 11. In K.Nirmala Devi v. V.Vijaya Lakshmi reported in 2002 (6) ALD 539, the Division Bench of the Andra Pradesh High Court, was posted with the question as to whether the appointment of Smt. K. Nirmala Devi, to the post of Headmistress in English Medium High School was in accordance with law or not. Facts of the case are Smt. K. Nirmala Devi was appointed as B.Ed., Assistant in the 2nd respondent-school on 10-6-1988 and while working as such, she passed Accounts Test Parts I and II in the years 1990 and 1991 respectively. The 1st respondent therein, viz., Smt. Vijaya Lakshmi was initially appointed as Second Grade Assistant with effect from 15-6-1981 and subsequently she was promoted as B.Ed., Assistant on regular basis in primary section of the school with effect from 23-6-1987. Subsequently, she was transferred to the English Medium High School as B.Ed., Assistant. The 1st respondent applied for Examination in Accounts Test Part II on 10-3-1995 and the Test was conducted on 11-6-1995, results of which were declared on 25-10-1995 and she was declared to have passed Accounts Test Part II examination. In the meanwhile, the then incumbent of the post of Headmistress tendered her resignation to the post, vide her letter, dated 1- 3-1995 and the resignation was accepted by the management of the school on 9-4-1995. The management of the school sent up a proposal to the District Educational Officer on 12-6-1995 proposing to appoint the appellant therein to the post of Headmistress and after obtaining necessary permission from the District Educational Officer, the appellant was appointed as Headmistress with effect from 5-7-1995. Being aggrieved by the said action of the management, the 1st respondent therein preferred a writ petition, contending inter alia that she is a senior-most B.Ed., Assistant. She prayed for reversion of the appellant therein and to promote her to the post of Headmistress. The writ petition was dismissed. On appeal, the matter was remitted and thereafter, a learned Single Judge allowed the writ petition, with the following reasons, "In the present case the Account Test was held on 11-6-1995 and the results were announced on 25- 10-1995 and in terms of the rules the passing of the examination relates back to the last date of examination i.e., 11-6-1995. The selection was held on 5-7-1995. In other words, as on the date of selection the petitioner has already appeared for the Account Test Part II examination and the results were not declared. Announcement of the results is not within the control of the petitioner and therefore it has to be held that passing of the test relates back to the date of last examination held i.e., 11-6-1995 and as on the date of promotion on 5-7-1995 the petitioner is deemed to have fully qualified to hold the post of Headmistress." 12. Testing the correctness of the same, a Division Bench of the Andra Pradesh High Court, at Paragraph 11, held that, https://hcservices.ecourts.gov.in/hcservices/ 10 "11. The Government of Andhra Pradesh in its Memo No. l5018/G1/79, Education, dated 8.5.1979 directed that that B.Ed., Assistants working in schools under private managements should pass Accounts test prescribed in order to be eligible for promotion as Headmistresses. Therefore, by reason of the above, a B.Ed., Assistant acquires eligibility to be considered for appointment to the post of Headmistress only on passing of the Accounts Test both Part I and Part II. It is needless to state that mere appearance at the Accounts Test would not make the candidate eligible for being considered for appointment to the post of Headmistress. It cannot be gainsaid that the essential qualifications for appointment to the post of Headmistress are - (i) Seven years service as a School Assistant and (ii) Pass in Accounts Test Papers I and II. It is fairly well settled proposition of law that candidate seeking appointment/promotion to a post should possess the qualification as on the date of selection, unless it is otherwise directed or prescribed. Therefore, it is not open to the writ petitioner to contend that by the date of selection and appointment of the appellant to the post of Headmistress, she had appeared for the Accounts Test Part II and only on that count she was also eligible for being considered for appointment to the post of Headmistress. It cannot be said that mere appearance at an examination on a particular date would amount to passing the examination as on that date. What is required is on the date of selection, the candidate should possess the prescribed qualifications. If a candidate does not possess the prescribed qualifications on the date of selection, but acquires subsequently, that would not invalidate the appointments of the eligible candidates already made. If such a contention is accepted, it would result in absurdity and create chaos in the field of public employment." 13. The Division Bench, after considering Alpana's case, Ashok Kumar Sharma v. Chander Shekher reported in 1993 Supp (2) SCC 611 = 1993 SCC (L&S) 857 = (1993) 1 SLR 379, Harpal Kaur Chahah (Smt) v. Director, Punjab Instructions reported in 1995 Supp (4) SCC 706, Ghan Shyam Nagar v. State of Rajasthan reported in 1999 (7) SLR 592, Saguna Chadha v. Punjab University reported in 1997 (2) SLR 810 (P&H), Mrs.Rekha Chaturvedi v. University of Rajasthan, at Paragraph 18, held as follows: "18. What emerges from the discussion of the case law is that the candidate selected must be qualified as on the last date for making applications for the posts in question or on the date to be specifically mentioned