ORDER
K. Kannan, J.
1. Heard Mr. K. Rajkumar, learned Counsel for the petitioners and Mr. S. Rajasekar, learned Additional Government Pleader for respondents.
I. The Lis:
2. The petitioners, in both the writ petitions have challenged the order of removal from their respective services as teachers whose qualifications in teacher training course from Karnataka Education Board were found to be not genuine.
II. Summary of Facts:
Entry into service on certificate issued by Karnataka Board:
3. The facts required to be stated in certain detail to stay in focus to the relevant issues at hand are:. The petitioner in W.P. No. 11769/2004 claimed to have passed their SSLC examinations and joined the Private Teachers Training Institute called Sri Lakshmi Vidyalaya Teachers Training Institute, between the year 1979-1981. The petitioner in W.P. No. 11769 of 2004 states that he wrote the annual examination during March 1982 and certificate was issued on 24.12.1982 by the Secretary, Karnataka Secondary Education Examination Board, Bangalore. The petitioner in W.P. No. 17768 of 2004 would similarly contend that he joined the course in Venkatesa Teacher Training College at Marathahallai for the academic year 1977-1979 and he took examination in October, 1979 and obtained the certificate on 24.11.1980 issued by the Secretary, Karnataka Secondary Education Examination Board.
Karnataka Board's first salvo:
4. Both of them joined in private Schools in Tamil Nadu from where the certificates had been sent to Director of Elementary Education for evaluation. The Director of Elementary Education, Karnataka which certified that the respective certificates were equivalent to the certificates offered by the Tamil Nadu State Education Board and on such evaluation, the petitioners had been appointed in the year 1986. After joining the school as Secondary Grade Teachers, the certificates had been sent for verification to the Karnataka Elementary Education Board by the concerned authority when the Karnataka State Education Board had sent a communication o 4.2.87 that the petitioners had failed in first and second year examinations and that the certificates were not genuine.
Suspension and removal-teachers' first challenge in Karnataka High Court fails:
5. The action against the petitioners served with orders of suspension and disciplinary action commenced with the charge that they had not passed Teachers training Course and unless the genuineness of the certificates were established within the particular period, further consequence would follow. The period mentioned expired on 7.10.1989 and when no further proof was obtained to support the credibility of the certificates, they were removed from service. The petitioners were reported to have sent notices to the Director of School Education, Karnataka challenging the decision to discredit the certificates, but no action was forthcoming and hence they filed W.P. No. 7416 of 1991. The petitioners had sought for several reliefs, some of them legitimately before the High Court and some of the reliefs even fell outside the jurisdiction. But the decision of learned Judge was one of dismissal of their claims. In the judgment, we find reference to the fact that original records maintained by the Board were examined by the Court, which according to the learned Judge clearly showed that the petitioners had failed. But, the Court did not embark on the enquiry regarding the certificates themselves to take them to their logical conclusion, refraining from pronouncing upon pure question of facts, but in the circumstances, had directed that the appropriate remedy would be only to approach the Board itself and place necessary materials before it for consideration. The Court found it untenable to grant the relief of re-employment into service and leaving it open to them to approach the competent forum in Tamil Nadu, if they so desired.
Writ appeal modifies order:
6. This Judgment was challenged in W.A. No. 971 of 1992 by the petitioners before the Division Bench which came to be filed in view of the fact that in the contemporaneous writ appeals filed in a batch of other cases, the Bench had ordered differently and the writ appeal itself came to be disposed of in the manner dealt in W.P. Nos. 2026 to 2028, 2070 and 2071 of 1992. The Bench had specifically directed the first respondent in the writ appeal who was the Joint Director of Public Instructions and Secretary, Karnataka Secondary Education Examination Board to decide whether the mark cards and TCH certificates produced by the petitioners were genuine and valid within a period of two months from the date when the appellants made an application before the first respondent. It also directed that the authority should offord an opportunity to the appellants to meet the case of the first respondent that the TCH certificates and mark cards were not issued by it.
Karnataka Board's inaction on representation - Karnataka High Court's further direction:
7. Pursuant to the decision of the writ appeal, representations have been made to the Karnataka Secondary Education Board on 6.4.1993. The Board did not act on the representations, necessitating the petitioners to file W.P. No. 10322 of 1994 and 9714 of 1994 respectively to declare that they had passed the examinations and further that the communication dated 4.2.1987 disputing the genuineness of the certificates to be null and void. The Board which had originated the whole dispute by stating that the certificates were not genuine, unfortunately did not join issues to justify their action in court with adequate alacrity. The contest was entered with faint defence that the Institution which had been cited as a respondent had not come forward to defend itself. No justification was offered as to why the Board itself had not acted on the representations and conduct an enquiry or divulge the information on which the certificates were originally directed to be cancelled. The writ petitions therefore came to be allowed, in so far as it directed that 'irrespective of whatever steps that had been taken against the petitioners and others, no further action was warranted'. It is not clear from the order whether the prayer for return of the documents was granted, but it is contended on behalf of the petitioners that the documents including the original certificates had still been only with the respondents and they have not handed back the documents.
The last lap leading to TAT's decision:
8. On the basis of the orders of the High Court of Karnataka the petitioners again made a representation on 16.6.1996 to comply with the orders of the High Court and to reconsider the decision of removal from service, but no reply was given and this afforded a fresh cause for the petitioners to file O.A.5591 and 5138 of 1996 before the Tamil Nadu Administrative Tribunal at Chennai. Orders were passed on 9.10.1996 and 11.10.1996 with a mere direction for consideration of the representations of the petitioners and pass appropriate orders. The representations had been accordingly made before the first respondent which rejected them on 4.3.1997. This rejection of the representation is the basis for filing O.A.NoS.7168 and 7161 of 1997 before the Tribunal. Both the O.A.s were dismissed and we have at hand the orders of dismissal for judicial review.
9. It could be seen that the orders of removal were made on 28.12.1989 and they have prodded around through various writ petitions and the proceedings before the Tribunal, where the principal enquiry ought to have been whether the certificates were genuine or not, but by the sheer default of the Karnataka Education Board which had fired the first salvo on 4.2.1987 by sending a communication that the petitioners had failed in the first and second year examinations and that the certificates were not genuine, but never came to Court or attended any of the proceedings, to defend their action when the cancellations were directly under challenge. The Central Administrative Tribunal, refused to grant them the necessary relief only on the ground that the order of removal itself had not been challenged and that only the communication of the Karnataka State Board to the Director of Elementary Education, had been challenged. In other words, the Tribunal refused to exercise its jurisdiction to grant the relief sought for by the petitioners only on a technical plea that the restoration into service may not be possible when all the previous proceedings had been dealt with only on the issue whether the communication sent by the Karnataka State Board was tenable or not.
III. Petitioner's basis of challenge:
10. The contentions of the petitioners impugning the order of the Tribunal are that after the disposal of writ petitions in W.P. No. 10332 of 1994 and 9174 of 1994 setting aside the order dated 4.2.1987, it was not open to the contesting respondents to deny the genuineness of the certificates and refuse them the right of re-employment. The respondents, according to the petitioners, would be barred by res judicata. The finding of the Tribunal questioning the frame of the applications was that, only the order passed by the Karnataka State Education Board on 4.2.1987 had been challenged without any steps having been taken seeking to challenge the order of removal from service dated 28.12.1989. According to them, the order of removal from service itself was based on the communication of the Karnataka Education Board. finding the certificates to be not genuine and if that order was set aside, there was no requirement for separately taking specific steps for challenging the removal from service made by the orders of the Government.
IV Government' reply:
11. It is contended before us on behalf of the Government that the issue in the writ petition is squarely governed by decision of a Division Bench in W.A. No. 1449 of 2007 dated 17.4.2008. In that case, the Bench had dealt with all the relevant issues relating to various G.Os. which were passed on the issue of evaluation of certificates granted by Karnataka Board and while disposing off the appeals filed on behalf of the Government, the Bench had specifically referred to G.O.Ms. No. 588 dated 21.5.1991 prescribing the minimum educational qualifications required for appointment to diploma in teacher training course and that if the petitioners did not fulfill the qualifications, the petitioners cannot secure any relief before us. In particular, the new qualification set out by G.O.referred to above, requirement was that there shall be a pass in higher secondary examination with minimum of 50% marks in the aggregate.
12. According to the counsel for the Government, the minimum percentage of marks for each of the individual subject was 45%, but the over all average in the aggregate of marks was 50%. The petitioner, according to the Government had not fulfilled the bench mark and hence as per the decision of the Division Bench, the petitioners case were liable to be examined with reference to the qualification laid down in G.O.Ms. No. 588 dated 21.5.1991. This we noticed as a ground which was not taken before the Bench, but allowed to be argued on the basis of admitted facts.
V. Appraisal of rival contentions:
13. It is the contention of the petitioner that the order of the Division Bench in W.A. No. 1449 of 2007 and connected cases (per Raviraja Pandian & P.P.S. Janarthana Raja, J.J.) will have no application to the facts in the case. In the said judgment, the Division Bench of this Court has swept through the entire gamut of issues arising out of the certificates that were issued by Karnataka Education Board and the effect of the various G.Os. issued by the Tamil Nadu Government as under:
Purport of the first 1981 G.O.:
14. G.O.1667 dated 5.8.1981 dealt with the communication from the Director of School Education who first indicated that the Karnataka Certificate was not equivalent to the certificate issued by the State of Tamil Nadu. It cried halt to the appointment of teachers trained in Karnataka State in schools situated in Tamil Nadu until the number of unemployed secondary Grade teaches trained in Tamil Nadu is wiped out. To the objections from several teachers who were affected by the said G.O., the High Court had taken the view that if evaluation had been made by the Director of School Education under Rule 14, as on the date when G.O. had been issued viz. on 5.8.1981, there ought to be no reason to discredit the certificate issued by the Karnataka Board.
Purport of 1984 G.O.:
15. G.O.Ms. No. 1236 dated 17.9.1984 was in response to several objections by way of W.Ps. filed at the instance of aggrieved persons, who obtained certificates from Karnataka Board and had taken appointments. The High Court's decisions on the same had permitted the Director of School Education to evaluate the certificate by the Karnataka Board by prescribing certificate qualifications. The G.O. was upheld in the case of K. Anthony Savarimuthu v. The Director of School Education reported in 1985 WLR 178.
Purport of 1991 G.O.:
16. G.O.Ms. No. 588 dated 21.5.1991 was in regard to admission of students to the Teacher Training Institute and which prescribed the minimum educational qualification viz., a pass in Higher Secondary (10+2) with minimum of 50% in the aggregate, with relaxation for SC/ST candidates.
Purport of 1992 G.O.:
17. G.O.MS. No. 1196 dated 3.12.1992 modified the conditions in G.O.Ms. No. 1236 to the effect that certificate issued by Karnataka Board after 17.9.1984 who had undergone training course up to the end of the academic year 1984-85 shall be evaluated as equivalent to the certificate issued by the Tamil Nadu in relaxation of the several norms prescribed in G.O.Ms. No. 1236 Education dated 17.9.1984. Such evaluation shall be done irrespective of the fact whether the candidate is temporarily employed or unemployed.
Disposition by D B and petitioners' plea:
18. The Division Bench while disposing of the batch of appeals in W.A. No. 1449 of 2007 and other connected case found as a matter of fact that the persons at whose instance the cases had been filed did not have necessary qualification, as stipulated in G.O.Ms. No. 588 and therefore they did not obtain a right to be considered for appointment. The decision itself makes it clear that in respect of cases where the evaluation had already been made, they were entitled to be considered and the G.O. did not specify that the evaluation made already would stand rejected. It was further contended on behalf of the counsel for the petitioners that since the Karnataka Board had already evaluated the certificates as equivalent to the certificates issued by the Tamil Nadu, there was no scope for applying the said decision.
Genuineness of certificate goes to the root of matter:
19. The aforesaid decision in W.A. No. 1449 of 2007 makes it clear that the issue of evaluation was used in a technical sense by requiring the Karnataka Board to certify that the course content was on par with what was obtained in Tamil Nadu and that therefore the certificate issued by the Karnathaka Board was equivalent to the teachers training course in Tamil Nadu. The question whether the certificate is genuine or not is not, in our view, strictly within the meaning of what an evaluation could be. If the certificate was not genuine, there is no question of evaluating the certificate as being equivalent to the certificate issued in Tamil Nadu for the same type of course.
Karnataka Board's subsequent indifference:
20. We notice that the Director of Elementary Education had originally issued a certificate stating that they were equivalent to the certificate applied by the Tamil Nadu Education Board by its communication dated 28.11.1985 on the basis of which the petitioners had also obtained appointment as secondary grade teachers. The whole problem arose only on account of a communication dated 4.2.1987 that the petitioners had felt that the certificates themselves were not genuine. The Board's Communication which was the cause for all the litigation was at best an unilateral decision and perhaps one that had been taken by verification of certain records. At any rate we believe that there must have been a basis of some sort for the Board to have taken such a decision after it had earlier certified the equivalence of the certificate issued by the Karnataka Board to the Tamil Nadu Education Board. This communication was what was challenged in several litigations. There ought to have been a clear response with reference to documents and put the petitioner on notice of the same for justifying its changed stance. The Board, in fact, had several such occasions, when, firstly, the High Court of Karnataka directed the petitioners in W.P. No. 7461 of 1991 to approach the Board and seek for consideration on their representations impeaching the correctness of the certificate as not genuine; yet again when the petitioners had challenged the decision of the learned Single Judge in W.A. No. 2024 of 2004 and when the result was not very different in the sense that instead of the petitioner being directed to approach the Board, the Division Bench of Karnataka High Court directed the Karnataka Board to re-examine the whole issue after giving appropriate notice to the petitioners to meet the case of the Board and the grounds for the adverse order. The Bench had also directed that an opportunity to be given to adduce evidence. The result of the enquiry was further directed to be communicated to the Director and DEO for appropriate orders. This direction which obligated the Kartanaka Board to take a decision within a period of two months was not taken up for consideration at all. The Board had allowed grass to grow under its feet and was unmoved by a representation on 6.3.1993 and still later, when Writ petitions had been filed before the Karnataka High Court in W.P. No. 9714 of 1994 and 10332 of 1994. This was yet another occasion when the Board could have produced the necessary evidence before the Court or justify its action as to how it had come to the decision that the certificates were not genuine. Again the Karnataka Board was inert.
21. The Director of Education, Tamil Nadu, by himself, could not have had any evidence to discredit the certificates issued by the Karnataka Board, unless it was a case where the Karnataka Board had some reason to state that by fresh evaluation undertaken, the certificate was not equivalent to the certificate issued by the Tamil Nadu Board. Still further opportunity granted to the Karnataka Board by virtue of the common order on 29.2.1996 to give a decision on the basis of representation met with a stony silence.
Petitioners benefit by Karnataka Board's inaction:
22. The consequence of such gross inaction on the part of the Karnataka Board, in spite of the initial doubt that they had, expressed through its communication dated 4.2.1987, is that the cloud upon the genuineness of the certificate itself is rendered meaningless We find that if only an opportunity had been given with some form of enquiry or if the Board had made some attempt to divulge the basis for its initial decision for doubting the genuineness, the action of the counter part in Tamil Nadu could not have been faulted. If the Karnataka Board had never utilised several occasions granted to them to solve the problem created by its communication dated 4.2.1987 or even responded to the deluge of representations backed by Court orders the State Government would have been justified in visiting the petitioners with a serious punishment of removal from service. But with no clear basis for doubting the genuiness of the certificates, the State Government ought not to have sustained the extreme form of punishment.
23. Counsel for the petitioners would rely on the decision of the Supreme Court in Karnataka Prasara Hindi Maha Sabha v. State of Karnataka reported in 2004(10)SCC 129 for the proposition that a decision rendered by the High Court in its exercise of jurisdiction under Article 226 of the Constitution and that remained final would constitute a bar of res judicata or disputing the correctness of the decision between the same parties. It is too fundamental a proposition and the Government cannot fail to see the finality that has obtained in the issue regarding the genuineness of the certificate by virtue of the decision of the Karnataka High Court in W.P. No. 9714 of 1994 and 10332 of 1994. The Tribunal could not have failed to recognise the binding nature of the decision of the Karnataka High Court in the aforesaid writ petitions, but still decided to dismiss the petitioner's claim only by technically approaching the issue by referring to the fact that earlier proceedings before the Karnataka High Court did not deal with the order of removal from service and the petitioners themselves had not challenged by any independent writ petitions before this High Court or any other forum challenging the order of removal. We find no ground to disallow the petitioner's claim on such a flimsy line of reasoning. After all, the litigation before the Karnataka High Court had focussed on the communication issued by the Karnataka Board on 4.2.1987 which states that the certificates were not genuine and that formed the bedrock for the dismissal order. The communication issued by the Karnataka Board was quashed only on a finding that there was no basis for finding the certificates to be not genuine. If that finding is withdrawn, it would be impermissible to allow the order of removal to stand. From 1987, when the communication of the Karnataka Board was made to discredit the genuineness of the certificates till the present day nothing has been brought forth at the instance of any other public functionary as to how the petitioners were responsible for producing any spurious certificates. If in the year 1985, the Director of Karnataka Board had said that the certificates were equivalent to the certificates issued by the Tamil Nadu Education Board, it is anybody's guess as to how such a certificate came to be suspected two years later and as to how during all these years, when cases were pending, they could produce no proof for doubting the genuineness.
Certificate held genuine, not by positive evidence but by default of not proving otherwise:
24. We find ourselves in bind only because the poignant reality is that certificate was stated to be not genuine on 4.2.1987. The learned Judge (Shivraj Patil, J, as he then was) before whom the case came for the first time in W.P. No. 7461 of 1991 had perused the files produced by the Karnataka Board had observed that the certificates did not appear to be genuine. If the matter had stopped there with the finding of the learned Single Judge that the certificates were not genuine, then probably the petitioners could never have had any further relief. The matter did not end there. The learned Single Judge himself thought it fit not to close the issue of genuineness by what he opined on ocular assessment and therefore had directed the petitioners to approach the Board. The learned Single Judge's observation itself was modified in appeal which ruled that the petitioners ought to have been given an opportunity to meet the case of the Board. Yet another learned Judge has given his decision in W.P. No. 10322 of 1994 again stating that the decision to doubt the genuineness of the certificate was wrong. We have a situation where the cumulus cast on the certificates have remained, but remained no more than as mere suspicions and there have been no positive finding as well that the certificates are genuine. The court's own views were on the other hand, by pure default of the Karnataka Board to enquire the basis for the decision it took when it chose to send a communication dated 4.2.1987. We do not see how is it possible for us to take any decision contrary to what has been already held by the several decisions of the Karnataka High Court. We are also unable to take a myopic view of the matter in the manner which was done by the Tribunal that the order of removal had not been challenged by any writ petition before the High Court after they were ordered to be removed from service on 28.12.1989. We have already set out the reason as to how the order of removal itself was based on the erroneous communication which gave rise to all the controversies.
VI The final disposition:
25. We can not allow for a further enquiry to be undertaken by the Karnataka Board to testify to the genuineness of the certificates. Till date, the certificates themselves have not been available for production at the instance of any persons. The petitioners have an easy answer that they were delivered at their schools at the time of their selection and they had been dispatched to the educational authorities. We are informed that the petitioner in W.P. No. 1769 of 2000 is actually still working in the school, notwithstanding his removal without claiming any salary. We cannot vouch for the plausibility of the contention. But, we find that the litigation has prolonged for over two decades for a simple issue whether the petitioners who claimed that they had passed teacher training courses had actually undergone such courses and had also passed the said courses and secured the certificates. We are not dealing with cases requiring high qualifications for teachers at a higher secondary school level or with the specialised technical education for teachers in the field of higher education Admittedly, they held the necessary educational qualification required at the time of their initial appointment. Since they have been teachers, a noble calling, we do not comment upon whether the petitioners indulged in any questionable practices in securing the certificates. All these years, the persistent ordeal of litigation must have chastened them to act as responsible teachers for small children in elementary schools.
26. The petitioners who succeed normally in a case where we find that the orders of removal had been made without justification , we could order the payment of backwages also. Since we direct the restatement of the petitioners on no clear finding that the certificates were genuine, but on the negative stand taken by the Karnataka Board was failed to be substantiated, we are not inclined to reward the petitioners with backwages for the default of Karnataka Board for the period that they did not work. The petitioners therefore shall not be entitled to backwages, but will draw salary from the date of reinstatement which we direct shall be done forthwith and they shall be deemed to have re-entered into service with continuity for appropriate reckoning of the future entitlements of salary and other benefits.
27. The writ petitions are therefore allowed accordingly. The parties shall bear their respective costs.