IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:20.04.2009 CORAM THE HONOURABLE MR. JUSTICE K.VENKATARAMAN Writ Petition Nos.24270, 24598 and 24600 of 2008 and M.P.Nos.2, 1, 2, 1 and 2 of 2008 W.P.No.24270 of 2008: M.Somasundaram ... Petitioner vs. 1.The Member Secretary, Teacher Recruitment Board, College Road, Chennai-6. 2.The Director of School Education (Higher Secondary), College Road, Chennai-6. 3.The Chief Educational Officer, Manjakuppam, Cuddalore. ... Respondents W.P.No.24598 of 2008: V.Kalaivani ... Petitioner vs. 1.The Director of School Education, D.P.I. Compound, College Road, Chennai-6. 2.The Joint Director of School Education, D.P.I. Compound, College Road, Chennai-6. 3.The Government of Tamil Nadu Teachers' Recruitment Board, rep. by its Secretary, D.P.I. Compound, College Road, Chennai-6. https://hcservices.ecourts.gov.in/hcservices/ 4.The Chief Educational Officer , O/o.The Chief Educational Officer, Vellore, Vellore District. ... Respondents. W.P.No.24600 of 2008: 1.R.Renuka 2.S.Mohan Raj 3.N.Kothai ... Petitioners. vs. 1.The Government of Tamil Nadu, rep. by Secretary, Education Department, Fort St. George, Chennai-9. 2.The Teachers Recruitment Board, rep. by Director, E.V.K.Sampath Maaligai, D.P.I. Campus, College Road, Nungambakkam, Chennai-6. ... Respondents W.P.No.24270 of 2008 has filed filed under Article 226 of the Constitution of India to issue a writ of mandamus directing the first respondent to permit the petitioner to write the special qualifying examination to be conducted on 12.10.2008 or any other subsequent dates for appointment to the post of Computer Instructors. W.P.No.24598 of 2008 has filed filed under Article 226 of the Constitution of India to issue a writ of mandamus directing the respondents to select and appoint the petitioner in the post of Computer Instructor by allowing her to appear for the selection for special Recruitment of Computer Instructor for the year 2008 based on the marks obtained by the petitioner in the said selection by considering her educational qualification and earlier service rendered by her from the year 1999, on par with other similarly placed candidates, with all attendant benefits. W.P.No.24600 of 2008 has filed filed under Article 226 of the Constitution of India to issue a writ of mandamus directing the second respondent to permit the petitioners to write special test to be conducted by the second respondent on 12.10.2008 for selection to the post of Computer Instructor in the Government Higher Secondary Schools. For petitioners : Mr. V.Suthakar (WP.24270/08) Mr.R.Muthukumaraswamy, S.C., for Mr.V.Ravikumar (WP.24598/08) https://hcservices.ecourts.gov.in/hcservices/ Mr.K.Selvaraj, S.C., for Mr.Y.Deva Arul Prakash(W.P.24600/08) For respondents : Mr. G.Sankaran, Spl.G.P. Assisted by Mrs.Dakshayani Reddy, G.A. and Mr.A.Suresh, G.A COMMON ORDER By consent, the main writ petitions themselves are taken up for final disposal. 2. These writ petitions have been filed for a mandamus mainly for a direction to the respondents to permit the petitioners to write the Special Qualifying Examination for appointment to the post of Computer Instructors. 3. The short facts which are necessary for the disposal of the writ petitions are set out here under:- 3.1. The rapid advancement and the updating of technology in the area of Computer Science made the Government to issue orders in the year 1999 appointing Computer Instructors to teach Computer Science in the Government / Corporation / Municipal Schools through a contract system. ELCOT Company which is a fully Government owned corporation was the principal contractor appointed by the Government to recruit Computer Instructors for teaching Computer Science in various schools in which Computer Education was introduced during the year 1999-2000. The contract between the Government and ELCOT came to an end in the year 2004. However, the Computer Instructors continued to work in the schools and were paid the consolidated pay of Rs.2,000/- per month. 3.2. During the year 2008, after considering the genuine request and sympathy over the contract employees, the Government of Tamil Nadu has taken a decision to absorb all the contract employees through Teachers' Recruitment Board by conducting a special qualifying examination to evaluate equality and uniformity in the recruitment process for selection to the post of Computer Instructors. 3.3. The petitioners are fully qualified for such examination. The petitioners were given application forms for special recruitment of Computer Instructors conducted by the Teachers' Recruitment Board and the same have been filled up by them. However, the petitioners have not received their hall tickets and hence, they submitted a representation requesting the authority to permit them to write the special test so as to enable them to participate in the selection for appointment to the post of Computer Instructors. But, however, there was no response on the side of the respondents. Hence, the https://hcservices.ecourts.gov.in/hcservices/ petitioners have approached this Court by filing the present writ petitions. 4. The main contentions that have been put forth by the learned Senior Counsels and learned Counsels appearing for the petitioners broadly are that -- (i) some of the petitioners were appointed as Computer faculty on contract basis by the ELCOT Company and they are continuing in employment as on date, though in some cases there was break in service for a limited period which has been explained properly by them in their affidavits in support of the writ petitions. Some of them have been appointed through Parents' Teachers' Association and they were working on the date of notification issued by the Government for recruitment through special qualifying examination. While so, excluding them from writing the examination is totally unjust; (ii) when similarly placed persons have been permitted to appear for the said special qualifying examination conducted by Teachers' Recruitment Board, elimination of the petitioners is discriminatory in nature and violative of Article 14 and 16 of the Constitution of India; (iii) the petitioners are in service for very number of years and their future would be at stake if they are not permitted to appear for the special qualifying examination; (iv) the refusal of hall tickets to the petitioners is against the principles of natural justice, equity and good conscience. 5. Common counter affidavit had been filed on behalf of the respondents wherein the following facts have been set out:- 5.1. Taking into account the rapid advancement and updating of technology in the area of Computer Science, the Government issued orders in the year 1999 for appointment of Computer Instructors to teach Computer Science in the Government / Corporation / Municipal schools through a contract system. ELCOT Company was authorised to select persons and the selected persons were appointed as Computer Instructors. The period of contract was five years and the first phase has ended in August, 2004 and the second phase expired in August, 2005. However, the Computer Instructors continued to work in Government Higher Secondary Schools and they were paid the consolidated pay of Rs.2,000/- per month. 5.2. The Government has taken a policy decision in the year 2006 to have one post of Computer Instructor in every Government Higher Secondary Schools and accordingly, G.O.Ms.No.187 dated 04.10.2006 created 1880 posts of Computer Instructors. By the said Government Order, it was directed that all the posts would be filled up https://hcservices.ecourts.gov.in/hcservices/ temporarily on the basis of the existing rules. Following the said Government Order, the Government issued a letter No.188 dated 04.10.2006 providing the method for filling up the aforesaid 1880 posts by conducting a special test for those who are already working as Computer Instructors. Thereupon, the Teachers' Recruitment Board had issued notification calling for application from the Computer Instructors working in the Government Higher Secondary Schools to appear for the Special Test to be conducted by the said Board. 5.3. Questioning the above order, a batch of writ petitions have been filed before this Court and a learned Single Judge of this Court had allowed the writ petitions by an order dated 13.03.2007. Aggrieved over the same, the Government filed writ appeals and a Division Bench of this Court had set aside the order of the learned Single Judge. 5.4. The petitioners are not eligible to write the special qualifying test for the post of Computer Instructors for three grounds viz., (i) Break in service. (ii) Not having the required qualification and (iii) appointment has been made after ELCOT contract. Thus, the counter affidavit reads that the case of the petitioners could not be considered as eligible candidates to appear for the special qualifying examination for the post of Computer Operators for the reasons stated above. Hence, according to the common counter affidavit, all the writ petitions are liable to be dismissed. 6. Learned Senior Counsels as well as learned counsels appearing for the petitioners and the learned Special Government Pleader assisted by Mrs.Dakshayani Reddy, learned Government Advocate appearing for the respondents have made their submissions basing on the pleadings found in the affidavits in support of the writ petitions as well as the common counter affidavit filed by the respondents. 7. The Government of Tamil Nadu, to update the technology in the area of Computer in Science, thought it fit to appoint Computer Instructors in the year 1999 in various Government / Corporation / Municipal Schools. ELCOT company which is a fully Government owned Corporation was the principal contractor appointed by the Government to recruit Computer Instructors for teaching computer education in various Government Schools. By Phase-I and II, the persons so selected through ELCOT Company have been appointed. The period of contract was for five years and Phase-I expired in August, 2004 and Phase-II expired in August, 2005. https://hcservices.ecourts.gov.in/hcservices/ 8. By G.O.Ms.No.187 dated 04.10.2006, 1880 posts of Computer Instructors have been created by a letter of the Government of Tamil Nadu dated 04.10.2006 to the Director of School Education prescribing certain educational qualifications for attending the special qualifying examination. Thereafter, notification had been issued for the special qualifying examination for the year 2006-07 for the post of Computer Instructors by Teachers' Recruitment Board. 9. Challenging the said notification, a batch of writ petitions have been filed before this Court in W.P.No.50371 of 2007, etc. By an order dated 13.03.2007, the learned Single Judge of this Court allowed those writ petitions. Challenging the same, the Government had moved writ appeals in W.A.No.1152 of 2007, etc. The Division Bench of this Court, by an order dated 22.08.2008, set aside the order of the learned Single Judge thereby affirming the notification issued for conducting special qualifying examination for the post of Computer Instructors by the Teachers' Recruitment Board. Paragraphs 23, 24, 25, 28, 29, 35 and 37 of the said judgment are usefully extracted here under:- " 23. There is no dispute regarding the said clause finding place in the contract. But, it is seen that in the welfare of the students, the Government has issued G.O.Ms.No.17, dated 23.1.2006, agreeing to bear the expenditure involved in providing computer education to the students, including the consolidated pay of Rs.2,000/= per each Computer Instructor. At this juncture, it is to be pointed out that all along the Computer Instructors are working for a meager salary of Rs.1,500/=, which was thereafter enhanced to Rs.2,000/= and in this manner, they have rendered their services to the school education of the students for all these years. From the particulars furnished by the learned Additional Advocate General, it is seen that for the year 1999 and 2000, all the required 2394 computer instructors were appointed by ELCOT, which also include the persons with B.Ed. (Computer Science) qualification and registered in Employment Exchange and during the years 2001 to 2005, some of the Computer Instructors left their jobs, but, out of the 2394 candidates appointed in two phases in the years 1999 and 2000, a considerable number of 772 Computer Instructors are still working continuously till date, rendering their services to the School Education and by their long service in the same field of imparting computer education to the pupil, by now, they have gained necessary and considerable experience. 24. It is apt to state here that by now, it is a settled law that the want of educational qualification, if any, can be compensated by long experience in the same field and long experience of a candidate in a particular https://hcservices.ecourts.gov.in/hcservices/ field/post is always considered as a ground for relaxing the required qualifications. For this, we draw inspiration from a catena of judgments of the Honourable Supreme Court, like B.N.SAXENA vs. NEW DELHI MUNICIPAL COMMITTEE [(1990) 4 SCC 205] and GUJARAT AGRICULTURAL UNIVERSITY vs. RATHOD LABHU BECHAR [(2001) 3 SCC 574]. 25. Coming to the other limb of the argument that the Computer Instructors were appointed only by private contractors and hence, they cannot be absorbed into Government sanctioned posts, it is to be stated that though they were appointed through agencies of ELCOT, a Government organisation, they were not under the control of the said agencies and for all practical purposes, they were under the direct control and supervision of the Government and only for this reason, even after the contract period is over, the Government, for the welfare of the students, has accepted to bear the expenditure involved in providing computer education to the students, including the consolidated salary of the instructors. Further more, it has been submitted before us that the Government has imparted the Child Psychology Training to such Computer Instructors and the Director of School Education has also conducted an examination and all those instructors who failed in the said examination were replaced. For all these reasons, we are not able to accept this argument advanced on the part of the B.Ed. graduates. 28. At the cost of repetition, we must held that it is not a process of 'absorption' or 'regularization' as has been termed and commented on the part of the B.Ed. graduates but it is only a special recruitment process intended for the benefit of such employees, who have rendered their valuable services to the field of education, continuously all these years and the Government has restricted this benefit only to those candidates who are 'in service after termination of the contract, receiving direct payment from the Government'. These employees are working all these years and have spent their best part of life in imparting education to the students, probably with a hope that their posts would be regularized or they would be absorbed in future, as in the earlier occasions, about 1000 vocational teachers were absorbed into Government service in regular time scale of pay. But, in spite of their specific request for absorption, the Government has prescribed a special test for them and the candidates who could succeed in the selection, could only be appointed. Thus, only a limited benefit has been conferred upon such contract instructors. The State being the Welfare State cannot be find fault with in taking such a decision, having https://hcservices.ecourts.gov.in/hcservices/ factual regard to the welfare of the students and the long serving contractor instructors. At this juncture, it is also to be pointed out that we are apprised of the fact that as of now, many of the contract Computer Instructors have acquired the qualification of B.Ed. and that they are not 'less qualified' as has been contended on the part of the B.Ed. graduates. 29. At this juncture, it has been argued on the part of the B.Ed. graduates that some of the Computer Instructors were appointed only recently and therefore, they should not be permitted to take the special examination. When, the Government, in its wisdom, has restricted this benefit only to those candidates who are 'in service after termination of the contract, receiving direct payment from the Government', we see no reason to cause our further interference into the matter, since the Government is completely within its power to fix the norms for such selection and the same cannot be interfered with unless malafides are proved, which is not the case here. 35. From the above discussions, the following conclusions would emerge: 1.The subject 'computer science' is a Vocational Component and therefore, there is every justification on the part of the Government in not insisting the B.Ed. qualification. 2.The proposed action of the Government is only a special drive competitive examination and it is not a matter of pure 'absorption' or 'regularization', in its true sense, as has been commented and apprehended on the part of the B.Ed. graduates and therefore, it is not the appointment dehors the recruitment rules and the action of the State Government is permissible under the proviso to Article 320(3) of the Constitution. 3.The impugned action of the Government has not offended Article 16(1) of the Constitution as has been contended on the part of the B.Ed. graduates.35. From the above discussions, the following conclusions would emerge: 4.The subject 'computer science' is a Vocational Component and therefore, there is every justification on the part of the Government in not insisting the B.Ed. qualification. 5.The proposed action of the Government is only a special drive competitive examination and it is not a matter of pure 'absorption' or 'regularization', in its true sense, as has been commented and apprehended on the part of the B.Ed. graduates and therefore, it is not the appointment dehors the recruitment rules and the action of the State https://hcservices.ecourts.gov.in/hcservices/ Government is permissible under the proviso to Article 320(3) of the Constitution. 6.The impugned action of the Government has not offended Article 16(1) of the Constitution as has been contended on the part of the B.Ed. graduates. 37. The above said proposal of the Government appears to be genuine and reasonable in the facts and circumstances of the case. Therefore, we direct the Governmental authorities that the entire process of selection on the basis of special drive examination shall be conducted strictly, as a one time measure, and complete the same within six months from the date of receipt a copy of this judgment and the left over vacancies and the other vacancies if any arose in the meantime shall be filled up within three months thereafter, as has been assured before us, making open the recruitment to all eligible B.Ed. and M.Ed. Candidates on employment seniority basis, without any preference to the already employed Computer Instructors in Government Higher Secondary Schools." Thus, the Division Bench of this Court negativing the contentions raised by the Tamil Nadu Computer Science B.Ed., Graduate Teachers Welfare Society, opposing the action of the Government, has held that the action of the Government is perfectly valid and legal. 10. Now the question that has been posed before this Court is whether the petitioners are eligible to take part in the special qualifying examination. The case of the petitioners is that they are eligible, but, however, they have not been considered and hence, they have to approach this Court. On the other hand, it is contended on the side of the respondents that since some of the petitioners do not satisfy the required qualification and in some cases there was break in service and in some cases, appointment was made through the Parents' Teachers' Association after the ELCOT contract was over, their cases cannot be considered and they cannot be permitted to write the special qualifying examination and since through an interim order they have written the examination, they cannot be appointed as Computer Instructors. 11. Before dealing with the individual cases, it would be more appropriate to deal with the common contentions raised in these writ petitions. 12. On behalf of the respondents, it is stated that broadly on three counts the case of the petitioners could not be considered viz., in some cases, there was break in service and in some cases, the petitioners do not possess the required qualification and in some https://hcservices.ecourts.gov.in/hcservices/ cases, the appointment had not been made by ELCOT contract but, has been made after the ELCOT contract was over. Break in service: 13. Regarding break in service, the main contention raised by the learned Senior Counsels as well as learned counsels appearing for the petitioners is that the petitioners who are fit in these category have been appointed as Computer Instructors on contract basis by ELCOT company in the Government High Schools, etc., and from the said date they are continuously working in the said capacity. The eligibility conditions prescribed for attending the special qualifying examination for Computer Instructors are-- (i)candidates should have been appointed by the ELCOT company in a Government School; and (ii)candidates should have been presently working in the Government School; Thus, on date of notification, since they are in employment, they should have been considered for applying the special qualifying examination for Computer Instructors and they should have been permitted to write the examination and selected thereon. 13.1. It is urged on behalf of the petitioners that the Hon'ble Minister for Education had announced in the Assembly on 04.08.2006 that the Government has decided to employ Computer Instructors who are working in various schools on consolidated pay, on regular basis if they possess the required qualifications. The statement made by the Hon'ble Minister for Education and the decision taken thereon were communicated by the Secretary to Government to the Director of School Education in his proceedings dated 04.10.2006 prescribing the educational qualifications. In the said communication, it has been stated that the Computer Instructors who are presently employed in the Government schools and who possess the required educational qualification mentioned thereon are eligible to appear for the special examination to be conducted by the Teachers' Recruitment Board. Thereafter, notification has been issued calling for applications for the special qualifying examination. Thus, according to the petitioners, three conditions are essential, viz., (i)they should have been appointed on contract basis by ELCOT or later through Parents' Teachers' Association; (ii)they should possess the required educational qualification; and (iii)now they should be in employment. https://hcservices.ecourts.gov.in/hcservices/ 13.2. However, it is contended on the side of the respondents, by the learned Special Government Pleader as well as learned Government Advocate appearing for the respondents that those Computer Instructors who were appointed by ELCOT and who were in service on the date when the Government took over the payment of their salary in Government / Corporation / Municipal Schools immediately after the expiry of the period alone will be eligible to appear for the special examination to be conducted by the Teachers' Recruitment Board. Some of the petitioners who have break in service are not eligible candidates as per the Government letter No.188 dated 04.10.2006, which was issued by the Secretary to Government, School Education. Basing on that letter, the Teachers' Recruitment Board announced the special qualifying examination for the post of Computer Instructors. Thus, it has been contended that when there was break in service even though they were appointed by ELCOT on contract basis, they are not eligible to participate in the written examination. Further, those persons who have not been appointed by ELCOT and who have been appointed through Parents Teachers Association after the contract period of ELCOT was over, are ineligible. 13.3. Before adverting to whether the candidates appointed through Parents' Teachers' Association are eligible to take part in the said special qualifying examination for the post of Computer Instructors or not, the question whether break in service in respect of the candidates who have been appointed through ELCOT could be considered for special qualifying examination, has to be answered first. 13.4. It would be useful to extract G.O.Ms.No.187 dated 04.10.2006 creating 1880 posts of Computer Instructors and the same is extracted here under:- RUf;fk; nky;epiyf; fy;tp ? muR nky;epiyg; gs;spfspy; fzpdpf; fy;tpj; jpl;llj;ij eilKiwg;gLj;Jjy; ? fzpdp gapw;Weh; gzpapl';fs; njhw;Wtpj;jy; ? Miz btspaplg;gLfpwJ/ ?????????????????????????????????????????????????????????????????????? gs;spf; fy;tp (nkepf2) Jiw murhiz (epiy) vz;/187 ehs; 4/10/2006 gof;fg;gl;lit/ gs;spf;fy;tp ,af;Fehpd; foj e/f/vz;/78345-lgps;a{ 21-2006 ehs; 23/08/2006/ Miz/; 1197 muR nky;epiyg; gs;spfspy; fzpdpf; fy;tpj; jpl;lk; xg;ge;j mog;gilapy; jw;nghJ bray;gLj;jg;gl;L tUfpwJ/ midj;J muR nky;epiyg; gs;spfspYk; fzpdp fy;tpj; jpl;lj;ij rPhpa Kiwapy; bray;gLj;j gs;sp xd;Wf;F xU fzpdp gapw;Weh; gzpaplk; tPjk; (Computer Instructor) midj;J muR - efuhl;rp - khefuhl;rp nky;epiyg; gs;spfspYk; fzpdp gapw;Weh; gzpapl';fs; njhw;Wtpf;f muR Kot[ https://hcservices.ecourts.gov.in/hcservices/ vLj;Js;sJ/ ,k;Kotpw;nfw;g jw;nghJs;s 1880 muR - efuhl;rp - khefuhl;rp nky;epiyg; gs;spfSf;Fk; gs;sp xd;Wf;F xU fzpdp gapw;Weh; (Computer Instructor) gzpaplk; tPjk; U:/5500?175?9000 vd;w Cjpa tpfpj;jpy; 1880 fzpdp gapw;Weh; gzpapl';fs; njhw;Wtpj;J muR MizapLfpwJ/ ,g;gzpapl';fs; midj;Jk; jw;fhypf mog;gilapy; eilKiwapy; cs;s tpjpfSf;Fl;gl;L epug;gg;gLk; ehs; Kjy; xU tUl fhyj;jpw;F mDkjpf;fg;gLfpwJ/ 2/ nkny gj;jp 1?y; xg;gspf;fg;gl;Ls;s gzpapl';fspd; brytpdk; fPH;f;fhQqk; fzf;Fj; jiyg;g[fspd; fPH; gw;W itf;fg;gl ntz;Lk; ? muR gs;spfSf;fhd fzf;Fj; jiyg;g[? 2202 ? bghJf;fy;tp ? 02 ? ,ilepiyf;