IN THE HIGH COURT JUDICATURE AT MADRAS DATED : 09.02.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.784 and 2128 of 2010 and connected Miscellaneous petitions S.Easwaran ...Petitioner in W.P.No.784/2010 1.K.Manimekalai 2.M.Selvanayaki 3.V.Krishnaveni 4.G.Saradha 5.A.Kumar 6.A.Syed Ibrahim 7.S.Rathi 8.R.Rajeswari 9.M.Kalaivani 10.N.Revathy 11.K.Kannan 12.G.Maheswari 13.I.Selvamary ...Petitioners in W.P.No.2128/2010 Vs. 1.The Secretary, Personnel and Administrative Reforms (M) Department, Secretariat, Chennai – 600 009. 2.The Director, Directorate of School Education, DPI Campus, College Road, Nungambakkam,Chennai – 600 006. 3.The Chairman, The Teacher's Recruitment Board, EVK Sampath Maligai, College Road, Nungambakkam, Chennai – 600 006. ...Respondents in W.P.No.784/2010 1.The State of Tamilnadu rep. By its Secretary to Government, Personnel and Administrative Reforms, (M)Department, Fort St.George, Chennai – 600 009. https://hcservices.ecourts.gov.in/hcservices/ 2.The State of Tamil Nadu, Rep. By its Secretary to the Government, School Education Department, Fort St.George, Chennai – 600 009. 3.The Director of Collegiate Education, DPI Complex, College Road, Nungambakkam, Chennai -6. 4.The Director of School Education, DPI Complex, College Road, Nungambakkam, Chennai – 6. 5.The Chairman, The Teacher's Recruitment Board, EVK Sampath Maligai, College Road, Chennai -6. 6.The Secretary, Tamil Nadu Public Service Commission, Chennai -2. 7.The Regional Joint Director, (Employment) Chennai -4. ...Respondents in W.P.No.2128/2010 W.P.No.784 of 2010 PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of certiorarified mandamus, calling for the entire records on the file of the 3rd respondent in R.C.No.971/B2/2009 dated 16.12.2009 and quash the same and direct the 3rd respondent to appoint the petitioner to the post of Assistant Graduate Teacher (Science). W.P.No.2128 of 2010 PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of certiorarified mandamus, calling for the records relating to the impugned proceedings made in Lr.No.38561/M/2008-3 Personnel and Administrative Reforms (M) Department dated 16.11.09 issued by the 1st respondent herein quash the same consequently direct the respondents to appoint the petitioners in the post of B.T.Assistant (Science) in the existing/future vacancies by treating their degree in B.Sc.,Bio- Chemistry as equivalent to that of the degree in B.Sc.,Chemistry in the light of the G.O.Ms.No.254 P & AR Department dated 22.10.1998. For Petitioners W.P.No.784 of 2010 : Mr.N.Chinnaraj W.P.No.2128 of 2010 : Mr.N.Manokaran https://hcservices.ecourts.gov.in/hcservices/ For Respondents W.P.No.784 of 2010 : Mrs.C.K.Vishnupriya,A.G.P for R1 Mrs.E.Renganayaki,G.A. For R2 and R3 W.P.No.2128 of 2010 : Mrs.C.K.Vishnupriya,A.G.P for R1 Mrs.E.Renganayaki, G.A. For R2 to R5 and R7 Ms.C.N.G.Niraimathi for R6 C O M M O N O R D E R The petitioners, in both the writ petitions have got degree in B.Sc.,Biochemistry from different Universities. The petitioners were applicant to the post of B.T. Assistant. They have also got degree in Education. Some of the petitioners in the second writ petition are having Post Graduate Degrees also. 2. When applications were called for by the third respondent- Teachers Recruitment Board (TRB),the petitioners aggrieved by the action of the respondents in not considering B.Sc.,Bio-chemistry as equivalent to B.Sc.,Chemistry have come forward to file the present writ petitions. 3. In the first writ petition, the challenge is to the order dated 16.12.2009 passed by the third respondent. The said order came to be passed pursuant to the Government's letter dated 16.11.2009.In the letter dated 16.11.2009, the Government referred to the earlier order in G.O.Ms.No.254 P & AR Department dated 22.10.1998, in which the B.Sc.,Bio-Chemistry was considered to be equivalent to B.Sc.,Chemistry for employment in public service. Subsequently, since there were shortage of trained graduates in B.Sc.,Chemistry, the Teachers Recruitment Board (for short TRB) had requested the Government to clarify whether the degree holders of B.Sc.,Bio-Chemistry can be appointed to the post of B.T.Assistant(Chemistry). The State Government, thereafter, forwarded the request of the TRB to an Equivalence Committee. Accordingly, the Equivalence Committee meeting was held on 10.08.2009. In that meeting, it was held that the B.Sc.,Biochemistry cannot be considered as equivalent to B.Sc.,Chemistry and accordingly the TRB was informed about the same. On getting the report of the Equivalence Committee, the State Government had accepted the recommendation of the Committee and issued orders that even though the degree obtained by such B.Sc.,Biochemistry students were recognised by the University Grants Commission (UCG), B.Sc.,Biochemistry cannot be considered as equivalent to B.Sc.,Chemistry and for the purpose of appointment in public services, it cannot be considered as equivalent. It is pursuant to this direction of the State Government, the impugned order dated 16.12.2009 came to passed by https://hcservices.ecourts.gov.in/hcservices/ the TRB. 4. In that impugned communication, in the reference column Nos.1 and 4, an earlier writ petition filed by the petitioner in the first writ petition(S.Easwaran)in W.P.No.24953 of 2007 as well the contempt application filed by him in C.P.No.146 of 2009 were referred to. After referring to that, in paragraph 3 of the impugned order, it was stated as follows:- "3. The writ petitioner Thiru S.Easwaran was sponsored by the Employment Exchange to this Board vide reference second cited. Teachers Recruitment Board conducted the Certificate Verification on 24.09.2008 for all the candidates who sponsored by the commissioner of Employment and Training including the writ petitioner. The writ petitioner has studied B.Sc.,(Bio-Chemistry) in his Undergraduate Degree. In the clarification issued by the Government vide reference sixth cited, it was clearly stated that "that the B.Sc.,(Bio- Chemistry) degree awarded by any University recognised by the University Grant Commission in the State will not be recgonised as equivalent to B.Sc.,(Chemistry) degree for the purpose of appointment in public services". In light of the above said Government clarification, the writ petitioner who studied B.Sc.,(Bio-Chemistry) in Under Graduate degree could not be considered for selection for the post of B.T.Assistant (Chemistry). The above said rule is applicable not only for the writ petitioner and also uniformly applicable for all the aspirants who possess the degree in the similar subject." Therefore, the petitioner has come forward to challenge the said order in the first writ petition. 5. In the second writ petition, the 13 petitioners had also challenged the order of the Government dated 16.11.2009 and after setting aside the same, they sought for appointing them as B.T.Assistant (Science) in the existing or future vacancies by treating their degree in B.Sc.,Bio-chemistry as equivalent to that of B.Sc., Chemistry in the light of G.O.Ms.No.254 P&AR Department dated 22.10.1998. 6. Since both the matters raised identical issues, they were grouped and heard together. 7. The contention of Mr.N.Chinnaraj, learned counsel for the petitioner in the first writ petition was that by G.O.Ms.No.254 P&AR Department dated 22.10.1998, the State Government declared that B.Sc.,Bio-Chemistry is equivalent to B.Sc.,Chemistry and even while issuing the said order, the State Government consulted the TNPSC and after considering their opinion, equivalence order was passed. Subsequently, the State Government by proceedings dated 06.06.2002 informed the Director of School Education that in https://hcservices.ecourts.gov.in/hcservices/ respect of the Government aided schools for appointing science graduates teachers, there is no prohibition to consider such graduates. The learned counsel also stated that thereafter, several candidates had been appointed for the B.T.Assistant (Science) post who are having degree in B.Sc Biochemistry. When the respondents started rejecting the case of the petitioner, he had filed W.P.No.24953 of 2007 before this Court. This Court by a final order dated 29.04.2008 gave the following direction: "3.The said direction or clarification issued by the Member Secretary cannot be relied upon by the second respondent, as the Government has issued orders as early as on 06.06.2002 stating that persons with B.Sc., (Bio-Chemistry) and B.Ed., Degree are entitled to be appointed as Graduate Teachers in Science. So long as the said order is not canncelled or modified by the Government, the Member Secretary or the second respondent has no jurisdiction to state that the petitioner is not qualified for the said post of B.T. Assistant (Science). Hence, the impugned order is set aside and the writ petition is allowed. The second respondent is directed to treat the petitioner as qualified and to sponsor the name of the petitioner to the Teachers Recruitment Board as and when further list is called for from the second respondent and the Teachers Recruitment Board is directed to consider the claim of the petitioner for appointment to the post of B.T. Assistant (Science) along with the other candidates. W.P. disposed of with above directions. Consequently, the connected miscellaneous petitions are closed. No costs." 8. The respondents did not consider his case. Hence, the petitioner had filed Contempt Petition being Cont.P.No.146 of 2009 before this Court. Thereafter, the Government had passed the impugned order taking note of the earlier orders and the contentions raised by the petitioner. 9. In the second writ petition, Mr.N.Manokaran, learned counsel appearing for the petitioner stated that the earlier Government Order was issued after taking into account the relevant circumstances. The present order, which is issued not in the form of a Government order, but by a letter addressed to the TRB, cannot overrule the earlier Government Order. The learned counsel also contended that subsequent to the earlier order, the Government had allowed several candidates to appear for the selection and they were also appointed to such post. It is too late for them to state that B.Sc.,Biochemistry cannot be an equivalent degree to B.Sc.,Chemistry for the purpose of teaching school children. 10. It was due to this competing and conflicting claims, this Court by an order dated 21.01.2010 decided to call for an opinion https://hcservices.ecourts.gov.in/hcservices/ from the Tamil Nadu State Council for Higher education (TANSCHE) which is a body constituted under Tamil Nadu Act 40 of 1992. Under the said Act, TANSCHE is empowered to advise the Government on academic matters. In that order the direction in paragraph 6 , reads as follows:- "6. In the light of the same, the Tamil Nadu State Council for Higher Education is hereby directed to consider whether the candidates who are having Graduate degree in Bio-Chemistry obtained from all the Universities, which are recognised by the University Grants Commission, aer eligible to teach Chemistry students in the various Government Arts and Science Colleges in the State coming under the Tamil Nadu College Education Services. In doing so, the State Council shall convene a meeting of the Heads of the Board of Studies of all Universities and also independently apply their mind and submit a report to this Court whether the candidates who are having Graduate degree in Bio-Chemistry are eligible to teach Chemistry in the various colleges run by the State Government. Such a report shall be sent to this Court on or before 05.02.2010. The State Government is directed to get Experts' opinion from all Universities concerned and also decide on the basis of the materials furnished if any by the TRB and then take a decision." 11. In the order it was mistakenly stated that the candidates who are having Graduate degree in Bio-Chemistry are eligible to teach Chemistry in the various colleges run by the State Government, that was a mistake found in the order. The opinion sought was whether the TRB should consider B.Sc.,Bio-Chemistry degree as equivalent to B.Sc.,Chemistry as required under the Rules for teaching in schools. Nonetheless the TANSCHE is competent to talk about such equivalence. 12. Pursuant to the direction issued by this Court, the Tamil Nadu State Council for Higher Education sent a letter dated 03.02.2010 addressed to the Registry enclosing its resolution passed by the full Council. Resolution No.1 which was adopted by the Council in its meeting held on 02.02.2010, reads as follows:- Item No.1 To consider and decide on the directions of the Hon'ble High Court, whether the B.Sc.Degree in Bio- Chemistry conferred by the University of Madras is an equivalent subject to B.Sc.Degree in Chemistry to teach Chemistry in Colleges of Tamil nadu. Resolution: As per the directions of the Hon'ble Madras High Court, the Tamil Nadu State Council for Higher Education convened a meeting of Chairpersons of Board of Studies of Chemistry of all Universities in Tamil Nadu at 4.30 p.m on 1st February 2010 in the https://hcservices.ecourts.gov.in/hcservices/ Tamil Nadu State Council for Higher Education Hall. After the deliberations, the Chairpersons of Board of Studies of Chemistry unanimously passed a resolution recommending that after perusing and comparing B.Sc.Chemistry and B.Sc.Bio-Chemistry syllabi it is observed that about 20-25% of chemistry is being included in B.Sc.Bio-Chemistry syllabus. Hence B.Sc.Bio-Chemistry is not considered equivalent to B.Sc.Chemistry. In the light of the above opinion of subject experts, it was resolved that the B.Sc.Bio-Chemistry is not an equivalent subject to B.Sc.Chemistry to teach Chemistry in Colleges and this may be communicated to the Hon'ble Madras High Court." 13. A copy of the said opinion was also furnished to the learned counsel for both sides. Notwithstanding the report, the petitioners continue to contend that the earlier order of the Government still holds good and therefore, there is no embargo for the petitioners from being considered for the post of B.T.Assistant (Science) with their B.Sc.,Bio-chemistry. 14. This Court is of the opinion that such a contention is too sweeping and cannot be found acceptance by this Court. In a matter of this nature, the power of this Court is very narrow and the judicial review in academic matter cannot be decided on the basis of the contentions raised before this Court, but it should be based upon the materials produced before this Court. 15. In more or less identical circumstances, the Supreme Court had occasioned to deal with a similar issue in Bihar Public Service Commission and others v. Kamini and others reported in (2007) 5 SCC 519. The Court held that equality doctrine cannot be allowed to Act on an illegality. In respect of eligibility qualification, merely because some candidates possess a particular qualification had been erroneously considered by the Public Service Commission to be eligible for a post cannot be a ground for the candidate possessing the same qualification to claim appointment to that post in the subsequent recruitment process. In that case, the Court was also faced with the situation whether a B.Sc.,Degree in Zoology which was required for the post of District Fisheries Officer-cum-Chief Executive Officer is equivalent to B.Sc.,Chemistry with Zoology an an optional subject. The matter was referred to an expert opinion and thereafter, the Patna High Court upheld the contention of the Public Service Commission. However, the Division Bench set aside the order of the learned Judge and allowed the appeal filed by the examinees. Aggrieved by the order of the Division Bench, Public Service Commission went to the Supreme Court. The Supreme Court in 7,8 and 10 observed as follows:- 7. ...It was, however, a mistake on the part of the Commission. As soon as the appellant Commission realized that the first respondent was not having requisite qualifications for the post and was not https://hcservices.ecourts.gov.in/hcservices/ eligible, her candidature was rejected. When a representation was made by the first respondent that cancellation of her candidature was not proper and that the decision should be reconsidered by the Commission, the Commission thought it fit to look into her grievance and an Expert Committee was appointed. The Expert Committee considered the question and submitted a report on 24.11.2002, inter alia, stating that in its "considered opinion", a student would be called a graduate in the subject if he/she has Honours in the subject at the graduate level, meaning thereby that it must be the principal subject. In our opinion, such a decision could not be said to be contrary to law. 8. Again, it is well settled that in the field of education, a court of law cannot act as an expert. Normally, therefore, whether or not a student/candidate possess requisite qualifications, should better be left to educational institutions (vide University of Mysore v. C.D.Govinda Rao). This is particularly so when it is supported by an Expert Committee. The Expert Committee considered the matter and observed that a person can be said to be Honours in the subject if at the graduate level, he/she studies such subject as the principal subject having eight papers and not a subsidiary, optional or side subject having two papers. Such a decision, in our judgment, cannot be termed arbitrary or otherwise objectionable. The learned Single Judge, in our opinion, was therefore, right in dismissing the petition relying upon the report of the Committee and in upholding the objection of the Commission. The Division Bench was in error in ignoring the well-considered report of the Expert committee and in setting aside the decision of the learned Single Judge. The Division Bench, while allowing the appeal, observed that the "litmus test" was the admission granted to the first respondent by the Central Institute of Fisheries Education, Mumbai. According to the Division Bench, if the first respondent did not possess Bachelor of Science degree with Zoology, the Institute would not have admitted her to the said course. The Division Bench observed that not only the first respondent was admitted to the said course, she had passed it with "flying colours". In our opinion, the Division Bench was not right in applying "litmus test" of admission of the first respondent by the Central Institute of Fisheries Education, Mumbai. The controversy before the Court was whether the first respondent was eligible for the post of District Fisheries officer, Class II. The correct test, therefore, was not admission by the Mumbai Institution. If the requirement was of Honours in Bsc with Zoology and https://hcservices.ecourts.gov.in/hcservices/ if the first respondent had cleared Bsc Honours with Chemistry, it could not be said that she was eligible to the post having requisite educational qualifications. By not treating her eligible, therefore, the Commission had not committed any illegality. 10.In our opinion, the submission of the learned counsel for the Commission is well founded and must be accepted. Therefore, even if in 1993, some ineligible candidates were wrongly treated as eligible, the first respondent cannot insist that she also must be treated eligible though she is ineligible. In our considered opinion, such an action cannot give rise to equality clause enshrined by Article 14 of the Constitution. It is well settled and needs no authority that misconstruction of a provision of law in one case does not give rise to a similar misconstruction in other cases on the basis of doctrine of equality. An illegality cannot be allowed to be perpetuated under the so-called "equality doctrine". That is not the sweep of Article 14. Even that contention, therefore, has not impressed us." 16. The Supreme Court vide its judgment in Annamalai University v. Secretary to Government, Information and Tourism Department and others reported in 2009 4 SCC 590, dealt with the scope of M.A.Degree granted by an University and rejected the contention. Though the said degree was given by a University recognised by University Grants Commission, that by itself cannot satisfy the minimum educational qualification prescribed under the relevant Rules of the Government framed under Article 309 of the Constitution. The Court rejected the contention that the word degree found in the recruitment Rule of the State Government, without there being a basic degree and despite the fact that the degree was granted by an University recognised by UGC. Therefore, the petitioners' contention that they are having a valid degree by itself will not make their degree equivalent to the degree which is prescribed as a qualification for the post for which the TRB has advertised. 17. In the light of the above, this Court is unable to accept the contentions raised by the petitioners. Hence, both the writ petitions will stand dismissed. No costs. Consequently, connected miscellaneous petitions are closed. svki Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.The Secretary, Personnel and Administrative Reforms (M) Department, Secretariat, Chennai – 600 009. 2.The Director, Directorate of School Education, DPI Campus, College Road, Nungambakkam,Chennai – 600 006. 3.The Chairman, The Teacher's Recruitment Board, EVK Sampath Maligai, College Road, Nungambakkam, Chennai – 600 006. 4.The Secretary to the Government, The State of Tamil Nadu, School Education Department, Fort St.George, Chennai – 600 009. 5.The Director of Collegiate Education, DPI Complex, College Road, Nungambakkam, Chennai -6. 6.The Secretary, Tamil Nadu Public Service Commission, Chennai -2. 7.The Regional Joint Director, (Employment) Chennai -4. + 1 cc to Mr. N. Chinnaraj, Advocate SR No.8672 + 1 cc to Mr. N.Manokaran, Advocate SR No.8320 + 2 ccs to Government Pleader, SR No.8338, 8342 W.P.Nos.784 and 2128 of 2010 GS(CO) SR/1.3.2010 https://hcservices.ecourts.gov.in/hcservices/