THE HON’BLE SMT. JUSTICE T.MEENA KUMARI AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO.878 OF 2009 DATED FEBRUARY, 2010 BETWEEN M.Vinod Vijaya Kanth … Appellant/ Petitioner And The Government of Andhra Pradesh, Rep. by its Principal Secretary, Education (SE-SER.VI) Department, A.P. Secretariat, Hyderabad. And Others. … Respondents WRIT PETITION NO.23808 OF 2008 BETWEEN M.Vinod Vijaya Kanth … Petitioner And The Government of Andhra Pradesh, Rep. by its Principal Secretary, Education (SE-SER.VI) Department, A.P. Secretariat, Hyderabad. And Others. … Respondents THE HON’BLE SMT. JUSTICE T.MEENA KUMARI AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO.878 OF 2009 AND WRIT PETITION NO.23808 OF 2008 COMMON JUDGMENT: (Per SK,J) The issue for consideration is whether a candidate who qualified in SSC examination with one language as the medium of instruction and who acquired higher qualifications thereafter is barred under the existing Rules from appearing for and qualifying in SSC examination with another language as the medium of instruction. The appellant in the writ appeal is the petitioner in the writ petition. The parties shall be referred to as per their array in the writ petition. The petitioner passed SCC examination in Telugu medium in the year 1996 and thereafter passed Intermediate examination in Telugu medium in the year 1998. He acquired Degree qualification in Telugu medium in 2001 and passed B.Ed. in 2003. He then appeared for and qualified in SCC examination in Urdu medium in the year 2005. He applied for the post of a Teacher in Urdu in response to the notification issued for recruitment of Teachers under DSC, 2006. Having fared satisfactorily in the selection process he was awaiting posting orders. While so, it appears that the authorities concerned entertained a doubt as to validity of the petitioner’s second appearance and qualification in the SSC examination. He was accordingly called upon to explain as to why his performance in the SSC examination of 2005 should not be cancelled. The petitioner submitted his explanation on 09.06.2008. Acting upon the report of the Director of Government Examinations, Andhra Pradesh, Hyderabad, the Government of Andhra Pradesh issued Memo No.12580/Ser.VI/2008-3 dated 29.09.2008, permitting the Director of Government Examinations, Hyderabad, to cancel the performance of the petitioner in the SSC Examination, 2005 on the ground that he had violated the Rules and appeared for the SCC Examination, 2005 after acquiring higher qualifications, suppressing the facts. The said Memo is the subject matter of challenge in W.P.No.23808 of 2008. By way of an interim prayer in the writ petition, the petitioner sought suspension of the impugned memo and a further direction to appoint him as a Secondary Grade Teacher (Urdu) in one of the existing vacancies in Kurnool District basing on his performance in DSC, 2006. Aggrieved by the denial of interim relief by the learned single Judge under Order dated 30.03.2009, the petitioner filed Writ Appeal No.878 of 2009. The appeal was taken up for hearing along with the main writ petition with the consent of the counsel as the controversy falls within a narrow compass. Heard Sri K.Ram Reddy, learned counsel for the petitioner and the learned Government Pleader for School Education, appearing for the respondent authorities. At the outset, we make it clear that the issue for consideration before us is limited to the validity of the petitioner’s second appearance in the SSC Examination and the action taken by the respondent authorities in connection therewith. We are not concerned with the claim of the petitioner for appointment to the post of Secondary Grade Teacher (Urdu) in pursuance of his selection in DSC, 2006. We are conscious of the fact that any dispute relating to the said issue would necessarily have to be addressed by the petitioner before the Tribunal constituted under the Administrative Tribunals Act, 1985, which is the Court of the first instance. It is also brought to our notice that the petitioner has already approached the Andhra Pradesh Administrative Tribunal, Hyderabad, in this regard in O.A. No.8615 of 2009. Though the petitioner advanced interim prayers, both in the writ petition and again in the writ appeal, seeking a direction to the authorities to appoint him as a Secondary Grade Teacher (Urdu) as an interim measure, such prayers cannot be countenanced in the light of the law laid down by the Supreme Court in L.CHANDRA KUMAR v. UNION OF INDIA[1]. Realizing the limitations on this Court in this regard, the petitioner himself filed an application in WPMP No.1640 of 2010 in the writ petition seeking to withdraw the prayer made by him in the interlocutory petition, in so far as the direction for appointment as a Secondary Grade Teacher is concerned and the said application has been ordered. We therefore make it clear that our adjudication is limited to the validity and correctness of the impugned Memo dated 29.09.2008, whereby the Government cancelled the performance of the petitioner in the SSC Examination, 2005. The petitioner appeared for the SSC examination in the year 1996 in Telugu medium and thereafter acquired higher qualifications upto B.Ed. Degree. He then passed SSC examination in Urdu medium in the year 2005. It is the case of the respondent authorities that the same was barred by Rule-X(I) of the SSC Scheme Orders, as amended by G.O.Ms.No.539, Education (K2) Department, dated 17.06.1982. The amendment introduced by way of the said G.O. is extracted hereunder for convenience: “ORDER: The following amendment is issued to Rule X(I) of the SSC scheme approved in the G.O. first read above. AMENDMENT After the words “Through the Headmaster of the Institution where he/she last studied occurring in the last line of the clause (1) of the Rule X, insert (,) for (.) and add the following “provided that: (a) any candidate who is declared to have passed the SSC Exams. and who desires to improve his/her performance in all the subjects prescribed for the course, may do so provided that he/she has not passed any higher exams. like a pass in Junior Intermediate Exams., etc. Any candidate who does not satisfy this rule or who gains admission into the Exams. suppressing any fact or facts and the fact comes to light at any time is liable to have his/her performance cancelled, without further notice. (b) however, pupils who intend to appear for SSC Exams, for some subjects only i.e., Mathematics (Composite or General), General Science or Social Studies may appear for the Exams. at any time without any limitation.” (BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) Sd/-” The common thread which runs through the various counters filed by the respondent authorities, in the writ petition and again in the writ appeal, is that the above amended Rule bars the petitioner from appearing in the SSC examination after he acquired higher qualifications. It is however to be noticed that the amended Rule introduced by way of G.O.Ms.No.539 dated 17.06.1982 specifically bars a candidate who passed SSC examination from ‘improving’ his performance after he passes a higher examination. A candidate, who violates this Rule and appears for the examination suppressing the fact, is liable to have his performance at such examination cancelled. Given the facts of the present case, the inevitable question that arises is whether the appearance of the petitioner in the SSC examination in 2005 with a different language as the medium of instruction can be said to be an attempt to ‘improve his performance’. The respondent authorities filed copies of the marks memoranda pertaining to the petitioner’s appearance in the SSC examinations in the years 1996 and thereafter, in 2005. A perusal of the same would reflect that the petitioner fared much better in his first appearance in the SSC examination during the year 1996 and his performance was far poorer in all the subjects in the year 2005. Thus, there was no actual ‘improvement of performance’ by the petitioner as such. In any event, the amended Rule under G.O. Ms.No.539 dated 17.06.1982, which is sought to be pressed into service by the respondent authorities has to be construed as per its clear language and what is barred thereunder is an attempt by a candidate to ‘improve’ his performance in the SSC examination after he passed higher examinations. We are at a loss to understand as to how the petitioner’s appearance in the SSC examination with an altogether different language as the medium of instruction can be classified as an attempt to ‘improve’ his performance in the first examination which was with a different language of instruction. ‘Improvement’ by its very connotation means that the candidate is attempting to increase his marks over those obtained by him in the first instance. When the medium of instruction itself is changed, it cannot by any stretch of imagination be said to be an attempt to ‘improve’ over the performance in the first examination. It would amount to an additional qualification and would not be an improvement over the first qualification. Relevant to note, the petitioner admittedly acquired higher qualifications in Telugu medium and it is no one’s case that such subsequent qualifications would stand nullified merely because the petitioner appeared for the base qualifying examination of SSC for a second time with a different medium of instruction. The second limb of the argument advanced by the respondent authorities to justify the cancellation of the petitioner’s performance in the SSC Examination, 2005 is that he suppressed the factum of his earlier appearance in the SSC examination of 1996. Having given serious consideration to this contention, we are of the opinion that this argument is equally fallacious. Once the petitioner did not fall foul of the amended Rule in G.O.Ms.No.539 dated 17.06.1982, there was no requirement in law that he should disclose the fact that he had already appeared for SSC examination with a different language as the medium of instruction and had thereafter obtained higher qualifications. It is only an attempt to ‘improve’ over the past performance in the earlier SSC examination that is barred by the amended Rule and as observed by us hereinabove, the petitioner’s appearance for the SSC examination in 2005 for a second time with an altogether different medium of instruction does not fall within the proscription introduced by way of the amended Rule. The amended Rule under G.O.Ms.No.539 dated 17.06.1982 has no application to the facts of the case. Therefore, the action of the respondent authorities in seeking to invalidate the petitioner’s performance in the SSC Examination, 2005 on the ground that he is barred from doing so under G.O.Ms.NO.539 dated 17.06.1982 and on the ground of his alleged suppression of facts, is unsustainable in law. The impugned Memo dated 29.09.2008 directing cancellation of the petitioner’s performance in the SSC Examination, 2005 is accordingly held to be illegal and unsustainable. In consequence, the impugned Memo dated 29.09.2008, based on the misinterpretation and misapplication of the amended Rule in G.O.Ms.No.539 dated 17.06.1982, is set aside. The writ petition is allowed. In the light of the final order passed in the writ petition, no further orders are required in the writ appeal, which is accordingly closed. In the circumstances of the case, there shall be no order as to costs. ____________________________ SMT. T.MEENA KUMARI, J. ____________________ SANJAY KUMAR, J. __________ FEBRUARY, 2010. VGSR [1] AIR 1997 SC 1125