| SooperKanoon Citation | sooperkanoon.com/1179469 |
| Court | Chennai High Court |
| Decided On | Nov-03-2015 |
| Case Number | W.P. Nos. 4827 & 18793 of 2012, W.P.No. 11607 of 2015, W.P.Nos. 23712 & 28019 of 2014, W.A.No. 1926 of 2013, W.A.SR.No. 85977 of 2014 & W.A.SR.No. 2165 of 2015 |
| Judge | T.S. Sivagnanam &Amp; G. Chockalingam |
| Appellant | T.S. Anbarasu and Others |
| Respondent | The State of Tamil Nadu, Rep. by its Secretary and Others |
(Prayer in W.P.No.4827 of 2012 :-Petition filed under Article 226 of the Constitution of India praying to issue Writ of Mandamus, to Forbear the Respondents from applying G.O.(MS) No.181 School Education (C2) Department dated 15.11.2011 and insisting on a pass in Teacher Eligibility Test as a minimum qualification for appointment to the posts of Graduate Assistants in classes VI to X in the Schools coming under the Directorate of School Education and Elementary Education to the Petitioners who have completed the certificate verification process for the said posts based on employment exchange seniority and consequently direct the Respondents to select the petitioners who have completed the selection process conducted by the 3rd Respondent to the posts of Graduate Assistants in Classes VI to X only based on employment exchange seniority communal rotation and certificate verification.)
Common Order
T.S. Sivagnanam, J.
1. The petitioners filed the Writ Petitions to forbear the respondents from applying G.O.Ms.No.181, School Education (C2), Department, dated 15.11.2011 and insisting on passing in Teacher Eligibility Test (TET) as a minimum qualification for appointment to the post of Graduate Assistant in classes VI to X in the Schools coming under the Directorate of School Education and Elementary Education to the Petitioners who have completed certificate verification process for the said posts based on their employment exchange seniority and for a consequential direction to the Respondents to select the petitioners to the said posts. The Writ Petition was dismissed by order dated 01.03.2012. The petitioner preferred Writ Appeal in W.A.No.1201 of 2012. The Division Bench by judgment dated 13.07.2012, dismissed the appeal against which the appellant preferred Review Application No.139 of 2012 and the Division Bench which heard those Review Application, disposed of the same by order dated 09.07.2013, by directing the respondents to accommodate the Review Petitioners/Petitioners in future vacancies without insisting them to appear for TET. Against the order passed by the Division Bench in the Review Application, the Government of Tamil Nadu preferred appeals to the Hon'ble Supreme Court in Civil Appeal Nos.9204-05/2014. The Appeals were allowed by order dated 23.09.2014, and the order passed by this Court in the Writ Appeals, Writ Petitions and the Review Petitioners were set aside and two Writ Petitions were remitted to this Court with the stipulation that the matter shall be adjudicated by the Division Bench in the backdrop of the issues formulated by the Hon'ble Supreme Court so that the controversy is put to rest at the High Court level. It was further ordered that if eventually the petitioners/respondents before the Hon'ble Supreme Court succeed, they shall be offered appointment with retrospective effect.
2. The questions which were framed by the Hon'ble Supreme Court to be adjudicated are:-
(i) whether the advertisement mentioned specific number of posts;
(ii) whether the posts mentioned have already been filled up;
(iii) whether the procedure of merit has been appositely followed;
(iv) whether the respondents despite being more meritorious have been left out and less meritorious candidates have been appointed; and
(v) whether assuming the advertisement did not mention the number of posts, the respondents still could claim a right in perpetuality to have the appointment.
3. In the background of the above facts, this matter is before this Court to be heard and adjudicated on the questions framed by the Hon'ble Supreme Court. Though only two Writ Petitions were subject matter of remand namely, W.P.Nos.18793 and 4827 of 2012, the other matters which were pending before this Court at various stages have also been tagged along with these two Writ Petitions and any decision rendered in those two Writ Petitions would cover the other cases also. Therefore, we heard all the matters together and all the learned counsel for the petitioner/appellants have elaborately made their submissions and we have also heard the learned Advocate General assisted by the learned Special Government Pleader (Education) on behalf of the respondents.
4. Though the prayer sought for by the petitioners was to forbear the respondents from insisting upon them to pass the Teacher Eligibility Test in the light of the directions issued by the Hon'ble Supreme Court, we proceed to decide the five questions which have been framed by the Hon'ble Supreme Court and therefore, we have not strictly confined ourselves to the nature of the relief sought for by the petitioners in the Writ Petitions.
5. The case of the petitioners is that the Parliament enacted the Right of Children to Free and Compulsory Education Act, 2009, (Act) and in exercise of the power conferred under Section 23(1) of the Act, the National Council for Teacher Education (NCTE), issued notification dated 23.08.2010, prescribing eligibility criteria for appointment as Teachers. As per the prescription, TET was the minimum requirement for being considered for appointment as Teacher. The petitioners relied upon clause 5 of the notification, which granted exemption in respect of certain class of candidates from passing the TET. At this stage, we may refer to clause 5 of the notification issued by the NCTE, which reads as follows:-
5. Teacher appointed after the date of this Notification in certain cases:- where an appropriate Government, or local authority or a school has issued an advertisement to initiate the process of appointment of teachers prior to the date of this Notification, such appointments may be made in accordance with the NCTE (Determination of Minimum Qualification for Recruitment of Teachers in Schools) Regulations, 2001 (as amended from time to time).
The above notification dated 23.08.2010, was superseded by Notification dated 27.09.2011 in which paragraph was substituted as hereunder:-
5(a) Teacher appointed after the date of this notification in certain cases:- Where an appropriate Government or local authority or a school has issued an advertisement to initiate the process of appointment of teachers prior to the date of this Notification, such appointments may be made in accordance with the NCTE (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001 (as amended from time to time).
(b) The minimum qualification norms referred to in this Notification apply to teachers of Languages. Social Studies, Mathematics, Science, etc. In respect of teachers for Physical Education, the minimum qualification norms for Physical Education teachers referred to in NCTE Regulation dated 3rd November, 2001 (as amended from time to time) shall be applicable. For teachers of Art Education, Craft Education, Home Science, Work Education, etc., the existing eligibility norms prescribed by the State Government and other school managements shall be applicable till such time the NCTE lays down the minimum qualifications in respect of such teachers.
6. It is submitted that TET was not prescribed as minimum qualification under the 2001 Regulation, as it was introduced for the first time after the Right to Education Act (RTE Act) was enacted. The petitioners would state that they have been called for certificate verification on the basis of seniority and the communal reservation for direct appointment of Graduate Assistant Teachers in Higher Secondary School by the Teacher Recruitment Board (TRB) and they have completed the certificate verification between 12.05.2010 and 14.05.2010, pursuant to a selection process, which was initiated by the State Government pursuant to Government Orders in G.O.Ms.No.145 and G.O.Ms.No.146, both dated 29.06.2005 and the same being prior to 23.08.2010, the petitioners are eligible to be appointed as Teachers based on their State wide seniority in the employment exchange without insisting upon TET.
7. The respondents have filed a counter affidavit dated 29.05.2015 (01.06.2015), and an additional counter affidavit dated 09.07.2015. In the counter affidavit, five questions which were directed to be adjudicated by this Court, were dealt with in seriatim and the respondents have explained their stand for each of the five questions. By way of additional counter affidavit, the particulars regarding the seniority and the merit list of the petitioners have been furnished in a tabulated statement to justify that the petitioners have not reached the zone of consideration for selection to the post of Graduate Assistant (B.T. Assistants) for the year 2009-10 and 2010-11.
8. Two other affidavits have been filed by the respondents one of which is titled as rejoinder affidavit, dated 04.08.2015 and another affidavit as additional counter affidavit, dated 04.09.2015 in W.P.Nos.18793 and 4827 of 2012.
9. The submission of the petitioners are broadly on the following lines:-
(i) TRB called for list of eligible candidates from the employment exchange in the ratio of 1:5 for the 6665 sanctioned posts for the year 2009-10;
(ii) pursuant thereto, 31190 eligible candidates were sponsored and the petitioners were one among the same;
(iii) the total vacancies of 6665 notified was in terms of G.O.Ms.Nos.145 and 146, dated 29.06.2009 and out of 31190 candidates, 6665 candidates were appointed as Graduate Assistants in various Higher Secondary Schools;
(iv) By G.O.Ms.No.64, 1200 posts of Graduate Assistant was sanctioned, by G.O.Ms.No.152, 2852 posts were sanctioned and G.O.Ms.No.153, 1766 posts were sanctioned and in all total of 5818 posts were sanctioned along with 133 backlog vacancies;
(v) 5793 vacancies were filled up from the list of unselected candidates who had completed certificate verification;
(vi)Thus along with sanctioned 6665 vacancies, under G.O.Ms.Nos.145 and 146, further 5818 posts were sanctioned, thus taking the total posts to 12843;
(vii) The Chief Secretary addressed a letter dated 06.07.2010 to the TRB stating that 2010-11, vacancies may be filled up with 24073 candidates whose certificate verification has already been completed before 11.01.2011;
(viii) pursuant thereto, the Government vide G.O.Ms.No.20, dated 31.01.2011, decided to extend the validity of the eligibility period for sponsoring State Level Seniority list, upto 26.09.2011;
(ix) the names of the balance candidates were not surrendered to the employment exchange, but the list was retained;
(x) 9176 vacancies were notified by Government Order Nos.193, 46, 169 and 170 and all these Government Orders were prior to G.O.Ms.No.181, dated 15.11.2011, when the State Government issued orders for conducting TET. Thus all vacancies prior to 15.11.2011, namely 22198, have to be treated on par and filled up based on employment exchange seniority. The TRB cannot create a classification between vacancies sanctioned by Government Orders issued upto 11.07.2011 and vacancies sanctioned by Government Orders issued after 11.07.2011;
(xi) All candidates who have completed certificate verification prior to 23.08.2010, the date of the notification of NCTE would fall under the same category and are eligible to be appointed without TET, since appointment process of such candidates was initiated prior to NCTE notification dated 23.08.2010;
(xii) if all the balance vacancies remaining after filling up 6665 vacancies are treated on par, the State would be justified in making classification between 6665 vacancies and balance vacancies, but if the TRB without surrendering the candidates to the employment exchange went on filling up the vacancies from the 31170 candidates and therefore, the petitioners also should have been given postings without TET;
(xiii) The Constitution validity of the RTE Act was challenged before the Hon'ble Supreme Court and in the case of Society for Unaided Private Schools of Rajasthan vs. UOI reported in (2012) 6 SCC 1, while upholding the validity of the statute, it was held that it would apply with effect from the academic year 2012-13;
(xiv) the correctness of the decision in the case of Society for Unaided Private Schools of Rajasthan, (supra), was referred to a Constitution Bench and in the case of Pramati Educational and Cultural Trust and others vs. Union of India and othersreported in 2014-4-MLJ-486 (SC), while affirming the judgment in the case of Society for Unaided Private Schools of Rajasthan (supra), it was held that the RTE Act is ultra vires of Article 30(1) of the Constitution and will therefore not apply to minority institution whether aided or unaided and the applicability of the Act with effect from 2012-13 was not disturbed. Therefore, it is submitted that this Court has to appreciate the claim of the petitioners for appointment to the post of B.T. Assistant based on certificate verification, which was already over;
(xv) Though the respondents proceeded with the recruitment on the basis of seniority, it appears that they were confused over the enactment of the RTE Act and issuance of notification dated 23.08.2010, by the NCTE and in clause 5 of the notification, exemption has been granted to recruitment initiated prior to the notification. TET was not required for appointment in respect of vacancies sanctioned under G.O.Ms.Nos.46, 64, 105, 145, 146, 152, 153, 169, 170, 171 and 193, wherein it has been specifically stated that recruitment shall be made on employment seniority on State wide basis;
(xvi) Relying on the decision of the Hon'ble Supreme Court in the case of Y.V.Rengaiah vs. J.Sreenivasa Rao reported in (1983) 3 SCC 284, it is submitted that vacancies, which occurred prior to the amended Rule shall be governed by the old Rule. In this regard, reliance has also been placed on the decision of the Hon'ble Supreme Court in the case of P.Mohanan Pillai vs. State of Kerala and Ors., reported in AIR 2007 SCC 2840 and the decision of the Division Bench of this Court in A.Ruckmani vs. The Correspondent, Gandhiji Aided Middle School, Keeasiviri and Ors., reported in (2003) 2 MLJ 4;
(xvii) In terms of the decision of the Hon'ble Supreme Court, RTE Act will apply only from the academic year 2012-13 and in such an even recruitment of candidates with TET even before the Act came into operation that too in respect of vacancies which occurred earlier is illegal. Reliance has been placed on the decision of the Hon'ble Supreme Court in the case of Somesh Tiwari v. Union of India, reported in (2009) 2 SCC 592, to state that impugned action suffers from malice in law;
(xviii) While accepting the principle that the selected candidates shall not have a right of an appointment, it is stated that they shall not be denied appointment arbitrarily. The petitioners are not aggrieved by G.O.Ms.No.181, as the vacancies notified under various orders are all prior to the issuance of the said G.O.Ms.No.181, dated 15.11.2011 and necessity to challenge the same does not arise;
(xix) The contention of the respondent that though the notification was issued in respect of the academic year 2010-11, actual appointments were made only in the year 2012, cannot be accepted, as the rules of the game cannot be changed in the midst of the selection process. The right of the candidate to retain his name in the employment exchange will not confer a right upon the Government to deny the petitioners' due right of appointment, which they are legally entitled to. In this regard, reliance has been placed on the decision of the Hon'ble Full Bench of this Court in the case of R.Sivakumar and seventeen Ors., vs. Ramanathapuram Mavatta Payirchipetra Edainilai Asiriyargal Sangam reported in 2007 (5) CTC 561.
(xx) The petitioners would state that they are not interested in setting aside the other illegal appointments, but justice would be rendered to them, if their cases are considered, as they have completed certificate verification between 12.05.2010 and 15.05.2010.
10. The contentions advanced by the respondent could be summaries as follows:
(i) That the employment exchange sponsors candidates in the ratio 1:5, the Government vide G.O.Ms.Nos.145 and 146, permitted TRB to fill up 6665 posts of Graduate Assistants (B.T. Assistants) for the year 2009-10. In the ratio of 1:5, the Government sponsored 31190 candidates;
(ii) The TRB selected 6532 candidates for the period 2009-10 out of 6665 and balance 133 is backlog vacancies;
(iii) The Government vide G.O.Ms.Nos.64, 152 and 153, sanctioned 1200, 2852 and 1766 posts of Graduate Assistants respectively and total number of posts permitted to be filled up through direct recruitment by the Government is 5818 including carry forward posts numbering 133;
(iv) The remaining 158 posts were not filled up for non availability of suitable candidates;
(v) NCTE issued regulations on 23.08.2010. If advertisements to initiate process of appointment of Teachers prior to the date of this notification, such appointments were directed to be made in accordance with NCTE Regulations 2001, by letter dated February, 2011;
(vi) G.O.Ms.No.181, dated 15.11.2011, was issued prescribing TET as criteria for appointment as Secondary Grade Teachers and Graduate Assistants;
(vii)The petitioners filed the Writ Petition to forbear the respondents from applying G.O.Ms.No.181 and insisting on pass in Teacher Eligibility Test;
(ix) G.O.Ms.No.90 was issued bringing a change of policy for recruitment of B.T. Assistant, Secondary Grade Teacher on the basis of direct recruitment by giving weightage mark in each category namely Higher Secondary, Degree, B.Ed., for B.T. Assistants.
(x) With regard to the five questions, which were framed by the Hon'ble Supreme Court, the respondents would state as follows:-
Question No.1:-
The total number of posts mentioned in the Government Orders are filled up except 133 posts.
Question No.2:-
The post of B.T. Assistants for the year 2009-10 and 2010-11 are filled up except 158 posts due to the non-availability of the suitable candidates in respect of other minority subject and special category.
Question No.3:-
The employment exchange sponsored names in the ratio of 1:5 and selection process was commenced and done based on State vide seniority in employment exchange. The cut off date has been furnished along with counter affidavit. The Writ Petitioners have not reached within the cut off date in their respective category and therefore, have not been selected because they are not within the date of registration in the employment exchange prescribed by TRB.
Question No.4:-
The TRB called all candidates for certificate verification whose names were sponsored by the employment exchange. The vacancies were filled up by TRB based on employment seniority and the remaining list was surrendered back to the employment exchange after the selection of suitable candidates for the year 2010-11 and there is no deviation in the selection process. Consequent upon that the Writ Petitioners' names are found in the live register of the employment exchange, details of which have been furnished in the typed set of papers.
Question No.5:-
The Writ Petitioners failed to come within the zone of consideration for recruitment to the post of B.T. Assistant. The contention of the petitioner that they were called for certificate verification on the basis of seniority and they completed the same on 12.05.2010 and 15.05.2010 i.e., prior to 23.08.2010 and therefore, they are eligible to appoint as Teachers is not tenable. It is stated that G.O.Ms.No.193, issued by the Government sanctioned 2054 posts for filling up vacancies under Sharva Shiksha Abiyan, G.O.Ms.Nos.145 and 146 were issued for filling up 6532 posts in the academic year 2009-2010. The other Government Orders namely, G.O.Ms.Nos.64, 152 and 153, relate to the year 2010-11 and Government granted permission to fill up 5818 posts and the same is filled up except balance 158 seats for the academic year 2010-11. G.O.Ms.Nos.105 and 177, were issued by the Government permitting TRB to fill up backlog vacancies. The respondents would refer to table No.1, in the reply affidavit filed by TRB with regard to the particulars mentioned above.
(xi) It is further submitted that G.O.Ms.No.46, dated 01.03.2011, relates to sanction for the year 2011-12. It is further submitted that the sanctioned posts were included in G.O.Ms.No.169 and G.O.Ms.No.170 and therefore, they have to be filled under the present recruitment policy by the Government by conducting TET as per notification No.4 of 2002.
(xii) Certificate verification does not confer any right for selection and appointment and the same was made clear in clause 5 of the call letter.
(xiii) Therefore, the petitioners have no legal right to claim for appointment and clause 5 of the notification does not come to their assistance.
(xiv) The names of the candidates who have not selected, were surrendered back to the employment exchange and the names find place in the live register.
(xv) The petitioner has no right to challenge the subsequent recruitment made by TRB under the new recruitment policy and the petitioners will not acquire any indefeasible right to be appointed even though there is unfilled vacancy. In this regard, reliance has been placed on the decision of the Hon'ble Supreme Court in the case of Kunhayammed vs. State of Kerala, reported in (2000) 6 SCC 359. It is further submitted that the mode of recruitment and the category from which the recruitment to a service should be made are all matters exclusively within the domain of the executive and a successful candidates does not acquire indefeasible right to be appointed in the existing vacancies. In the regard, reliance has been placed on the decision of the Hon'ble Supreme Court in the case of State of A.P., vs. Sadanandam reported in AIR 1989 SCC 2060 and Shankarsan Dash v. Union of India, reported in (1991) 3 SCC 40.
11. Mrs.Nalini Chidambaram, learned Senior counsel appearing for some of the petitioners would candidly admit that there was a factual error committed while placing arguments before the Hon'ble Supreme Court as a result of which there is a slight discrepancy in the nature of the question framed by the Hon'ble Supreme Court. The learned Senior counsel would admit that there was no advertisement specifying the number of posts, but it was by way of a notification in the form of Government Orders. Therefore, it is submitted that in question No.1, the word advertisement may be read as notification.
12. Sofar as the second question is concerned, it is submitted that the posts have already been filled up and the same is not in dispute and that the petitioners have also stated that they are not seeking for cancelling the selection made, but would seek for a direction to appoint the petitioners without insisting upon TET.
13. Sofar as question No.3 is concerned, it is submitted that the consideration for selection being State wide seniority in the employment exchange, the question of consideration of merit or any procedure for merit consideration does not arise in the instant case.
14. With regard to question No.4, it is submitted that since the seniority in the employment exchange alone was the criteria for selection, the question of the meritorious being left out or less meritorious being left out did not arise.
15. With regard to question No.5, it is submitted that since posts were notified by Government Orders, the issue would be as to whether the petitioners who attended the certificate verification could be denied selection in criteria a classification between the vacancies sanctioned by the Government Orders issued upto 11.07.2011 and vacancies sanctioned thereafter.
16. The other learned Senior counsels and the learned counsels for the petitioners as well as the learned counsels for the respondents agreed to the above submission and requested this Court to suitably consider the the claim of the petitioner on the above lines.
17. We have elaborately heard the learned counsel appearing for the parties and carefully given our consideration of the material placed before this Court.
Question No.1:-
Whether the advertisement mentioned specific number of posts.?
(i) As noticed above the counsels on either side contend that there was no advertisement issued, but the number of posts to be filled up were notified by the Government under various Government Orders.
(ii) The Government by G.O.Ms.Nos.145 and 146, dated 29.06.2009, considered the letters of the Director of Elementary Education and Director of School Education, dated 04.04.2009 and 26.03.2009, respectively requesting permission to fill up the vacant post of Secondary Grade Teachers and Physical Education Teachers and Post Graduate Assistants, B.T. Assistants, Physical Education Teachers and Special Teachers for the year 2009-10, as per Government procedure and to fill up vacant post of B.T. Assistant from the eligible Secondary Grade Teachers through promotion as per seniority list and fill up the remaining posts through direct recruitment through the TRB. The proposals submitted by the Director were considered by the Government and by G.O.Ms.No.145, permission was accorded to fill up 6665 of Graduate Assistants for the year 2009-10. Subsequently, the Government by G.O.Ms.No.64, 152 and 153 sanctioned 1200, 2852 and 1766 posts of Graduate Assistants (B.T. Assistants). Thus, the respondents have filled up the posts which have been sanctioned by the Government through the Government Orders referred above except for 133 posts, which are stated to be backlog vacancies. The above facts have been admitted by the petitioners and are not in dispute. Accordingly, question No.1 is answered.
Question No.2:-
whether the posts mentioned have already been filled up?
It is not in dispute that the post of B.T. Assistant for the year 2009-10 and 2010-11 have been filled up and the stand taken by the respondents is that except 158 posts due to non-availability of suitable candidates in respect of other minority subjects and special category, all posts have been filled up. This answers question No.2
Question No.3:-
whether the procedure of merit has been appositely followed?
It is admitted that the selection process was done based on the State wide seniority in the employment exchange and the candidates were sponsored by the employment exchange in the ratio of 1:5. This is not disputed by the petitioners. Therefore, the question of inter se merit did not have any role in the selection process, as admitted by the petitioners and the selection was solely based on the State wide employment exchange and Question No.3, is accordingly answered.
Question No.4:-
Whether petitioners despite being more meritorious have been left out and less meritorious candidates have been appointed ?
(i) The learned counsels appearing for the petitioners fairly concede that the basis of selection was the seniority of the candidates in the Employment Exchange and there was no assessment of inter se merit. The candidates who were eligible and registered with the Employment Exchange based on their seniority were considered subject to communal rotation. The procedure adopted was to call for a list of eligible candidates from the Employment Exchange in the ratio of 1:5 and all those candidates who were sponsored were called for certificate verification and after certificate verification, one among the five candidates is selected following the communal rotation and the cut off date.
(ii) The respondents in their counter affidavit dated 29.5.2015, have explained by way of illustration how the cut off date is reckoned. We may note that if a candidate in a particular subject such as Zoology under B.C.(General) category had been selected in the last recruitment, the date of his/her registration with the Employment Exchange is reckoned as the cut off date for the subsequent recruitment in respect of the candidate in the same subject and the same communal rotation viz. B.C.(General) and if the date of registration of the candidate waiting in the Employment Exchange is after the cut off date in the last recruitment, he or she will not be considered for selection.
(iii) The respondents in their counter affidavit have furnished the details pertaining to the petitioners in a tabulated form and also furnished the copy of the communication sent by the Director, Directorate of Employment and Training to the Principal Secretary, Teacher Recruitment Board, dated 31.07.2015, which also contains the details in a tabular format. These formats contain the names of the candidates and the position of the candidate in the Employment Register. Further, the tabulated statement in the counter affidavit dated 29.05.2015, furnishes the name of the candidate, subject, community, date of registration in the Employment Exchange and the cut off date fixed by TRB for selection. In another tabulated format which finds place in page Nos. 331 to 336 of the typed set of papers filed by the respondents, apart from the above details, a separate column 'Remarks', which sets out the reason as to why the candidate was not selected.
(iv) Thus, the reason assigned by the respondents for non-selection of the petitioners is on the ground that they have not reached the cut off date, as the date of registration in the Employment Exchange by all the petitioners was after the cut off date arrived at based on the last recruitment in respect of each subject and communal rotation. The petitioners have not questioned the fixation of the cut off date nor their appears to be a contest as regards the details of the candidates furnished in the tabulated formats, referred to above.
(v) Thus, Question No.4, is answered by stating that the candidates were called for selection based on the seniority in the Employment Exchange and TRB directed the employment exchange to sponsor the names of five candidates as against each vacancy viz. in the ratio of 1:5 and the selection was based on the employment seniority and communal rotation and not based on the assessment of inter se merit.
Question No.5:-
Whether assuming the advertisement did not mention the number of posts, the petitioners herein still could claim a right in perpetuality to have the appointment ?
(i) While answering Question No.1, this Court took note of the stand taken by the learned counsels appearing for the parties, whereby they conceded that there was no advertisement issued specifying the number of posts, but it was only by way of notifications issued by the Government from time to time. Therefore, the issue to be answered could be modulated to read as to whether the petitioners would have a right of perpetuity to be appointed to the post. This issue would largely dwell on the claim of the petitioners that the recruitment process commenced well before the NCTE notification making TET compulsory and that their certificate verification was completed.
(ii) It is not in dispute that the TRB requested the Employment Exchange to sponsor candidates in the ratio of 1:5. The TRB in order to afford a fair opportunity, verified the certificates of all the candidates whose names were sponsored by the Employment Exchange in the ratio of 1:5, regardless of the fact as to whether they would be eventually selected, which was solely based on the cut off date and communal rotation. In such circumstances, we have no hesitation to hold that merely because the certificates of all candidates sponsored by the Employment Exchange in the ratio of 1:5 were verified, would not confer upon them any right much less a vested right or a perpetual right for appointment.
(iii) The specific stand of the respondents is that one among the five candidates sponsored by the Employment Exchange for a particular post will be selected based on the cut off date and communal rotation and the names of the four candidates were sent back to the Employment Exchange to be included in the live Register. The petitioners contented that this was not done and there was uncertainty in so far as the petitioners are concerned. However, this controversy was put to rest by producing the copy of the communication dated 31.07.2015, from the Director of Employment and Training addressed to the Principal Secretary, TRB, which shows the status of the candidates in the Live Register of the Employment Exchange. Out of the total 94 candidates, except for a few whose names are not found in the data on account of the fact that it had lapsed, the names of other candidates are maintained in the Live Register. This leave us with the issue as to whether the petitioners who attended the certificate verification have secured a perpetual right to seek for appointment without passing the TET.
(iv) The learned counsels appearing for the petitioners after elaborately referring to the various Government Orders in and by which 9176 vacancies were notified by the Government vide G.O.Ms.Nos.193, 46, 169 and 170 and those Government Orders having been issued prior to 15.11.2011, the date on which the State Government issued orders for conducting TET, all vacancies prior to 15.11.2011 viz. 22198 have to be treated on par and fill up based on Employment Exchange seniority. Thus, it is the contention of the petitioners that the TRB cannot create a classification within the vacancies sanctioned by Government Orders issued upto 11.7.2011, and those vacancies sanctioned after the said date. It is the further submission that all the candidates who have completed the certificate verification prior to 23.10.2010, the date of notification of NCTE would fall under the category and form a homogeneous group to be eligible to be appointed without TET, since the appointment process of such candidates were initiated prior to NCTE notification dated 23.08.2010, which was subsequently substituted by notification dated 29.07.2011. The first notification dated 23.08.2010 in clause 5 contains only one paragraph which deal with the Teachers appointed after the date of the notification in certain case. The notification states that where appropriate or local authority or a school has issued an advertisement to initiate the process of appointment of teachers prior to the date of the notification, such appointments may be made in accordance with the NCTE Regulations, 2001, as amended from time to time.
(v) In the notification dated 29.07.2011, paragraph No.5 of the notification dated 23.08.201, was substituted by a new paragraph No.5 consisting of two sub-paragraphs viz. 5(a) and 5(b). Paragraph 5(a) of the new notification dated 29.7.2011, is in para materia with paragraph 5 of the original notification dated 23.08.2010.
(vi) The sheet anchor of the petitioners contention is that in their cases, the Government has notified the number of vacancies under various Government Orders and the process of recruitment has commenced prior to 23.08.2010 and therefore, they are not required to pass TET.
(vii) We are unable to accept the contentions raised by the learned counsels for the petitioners as it would amount to misreading of the notifications dated 23.08.2010/27.09.2011. Paragraph 5 / 5(a) of the notification makes it abundantly clear that the exemption carved out is in respect of such appointments made, pursuant to recruitment process initiated prior to the date of the notification. Therefore, the emphasis is on the expression "such appointment as contained in paragraph 5/5(a) of the notification. Therefore, the benefit of the notification would enure in favour of those candidates who participated in the recruitment process initiated prior to 23.08.2010 and appointed against the posts advertised or as notified in the instant case. Therefore, it is only those appointments which would fall within the expression "such appointment" as contained in the notification issued by the NCTE.
(viii) In the light of the above conclusion that the benefit of the exemption in terms of the notification, dated 23.08.2010/27.09.2011, would not enure to the benefit of the candidates such as the petitioners. In the light of such conclusion, there would not be a necessity to examine the other aspects as regards the number of vacancies, which were notified by the Government, those which have been filled up and those which remain unfilled. One more reason to arrive at such a conclusion is that unless and until the petitioners had been appointed as against the notified vacancies then alone the benefit of the exemption under the notification issued by the NCTE would apply.
(ix) It is not in dispute that the petitioners were never appointed and they do not dispute this fact. However, their contention is that the recruitment process was initiated prior to 15.11.2011 and the petitioners' names were sponsored by the employment exchange and the petitioners were called for certificate verification and their certificates were verified and therefore, they are entitled to be treated on par with all those candidates, who were appointed pursuant to the call letters sent by TRB, since the vacancies were notified well before the notification issued by NCTE.
(x) We are unable to accept such a contention for more than one reason. Firstly TRB requested the employment exchange to sponsor candidates in the ratio of 1:5. It is a settled legal position that merely because a candidate name is sponsored or considered for selection does not confer any right on such candidates and even a candidate in the select list does not have a vested right to secure employment. Secondly merely because the certificates of the petitioners were verified, it could neither create a vested right much less a perpetual right in favour of the petitioners, as they have failed to fall within the cut off requirement. In the preceding paragraphs, we have noticed the manner in which the cut off date has been reckoned. There has been no challenge by the petitioners to the fixing of the cut off date nor it is the case of any one of the petitioners that despite falling within the cut off date, they were not selected.
(xi) It was argued by the learned Senior counsel for the petitioner that the respondents appear to have been confused after the enactment of the RTE Act and the issuance of the notification by the NCTE introducing an exemption clause.
(xii) In our view there appears to be no confusion in the matter, as the recruitment process followed by the respondents is simple. The TRB, which is the recruiting agency called for names from the employment exchange in the ratio of 1:5. The names sponsored by the employment exchange in the said ratio was considered and all candidates were called for certificate verification. At no point of time, there was any assurance in favour of any candidate that on completion of certificate verification, there is an assurance that they will be appointed. The selection has been made based on seniority in the employment exchange, which is based on the cut off date applying communal rotation. Thus such of those candidates, who had fallen within the cut off date and satisfied the other parameters, namely subject/communal status have been appointed. These appointments having been made pursuant to a recruitment process initiated prior to the NCTE notification dated 23.08.2010, were entitled for the benefit of the exemption as mentioned in clause 5/5a of the notifications. The necessary corollary being remaining candidates, who failed to fulfil the cut off date/communal rotation had to go back to the employment exchange and this has been demonstrated to have been done by the respondents and the names of the candidates are in the live register. Therefore, the interpretation given by the petitioner that none of the candidates, whose names were sponsored by the employment exchange are required to have TET on the sole ground that the recruitment process had commenced prior to the NCTE notification, dated 23.08.2010 is an argument stated to be rejected.
(xiii) It was argued by the learned Senior counsel for the petitioners that the Hon'ble Supreme Court in the case of Society of Unaided Private Schools of Rajasthan (supra), upheld the validity of the RTE Act and held it to be applicable from the academic year 2012-13, and the Constitution Bench in the case of Pramati Educational and Cultural Trust and others (supra), while affirming the judgment did not interfere with the applicability of the RTE Act from the academic year 2012-13 and these cases ought to be appreciated in the light of the date of applicability of the RTE Act.
(xiv) The contention raised is not tenable for the simple reason that there is no challenge to the notification issued by the NCTE nor the Government Order issued by the respondent making TET compulsory. The date of coming into force of the RTE Act is largely vis-a-vis the educational institutions and hence its applicability was fixed w.e.f., the academic session 2012-13. This could hardly have any impact on the recruitment process initiated by the Government by duly complying with the NCTE notification. Hence, the notification of NCTE nor the Government Order making TET compulsory having not been put to challenge by the petitioners, the decision of the Hon'ble Supreme Court fixing the implementation of RTE Act to the Educational Institution from the academic session 2012-13 would not lend any support to the petitioners' case. Further more, there is nothing on record to show that there was any prohibitory order against the State Governments to implement the requirement of TET. The State Government followed the directive of NCTE issue during February 2011 to insist upon TET. This notification also was not challenged.
(xv) A contention was raised by the learned Senior counsel that the respondents are not justified in taking umbrage that actual appointments were made only in 2012 though notification was issued in 2010. The petitioners' case is founded on the exemption granted by NCTE in respect of certain cases. The exemption would benefit only those appointees, appointed before the date of the notification, thus it is immaterial as to when the actual appointments were made. The relevant date would be the date of the notification issued by NCTE. These issues cannot be canvassed by the petitioners in the absence of any challenge to the notification or the Government Orders. We agree with the submission of the learned Advocate General that the petitioners have no right to challenge the subsequent requirement made by TRB under the new recruitment policy and the petitioners will not acquire any indefeasible right to be appointed though there is unfilled vacancy.
(xvi) The decisions relied on by the learned counsel for the proposition that the vacancies, which occurred prior to the amended rule shall be governed by the old rule would have no applications to the facts and circumstances of the cases on hand. The petitioners do not dispute the settled legal principle that selected candidates have no vested right to secure an appointment and their case is that appointment shall not be denied arbitrarily. Further, the petitioners would state that they are not aggrieved by G.O.Ms.No.181, dated 15.11.2011, which made it mandatory to possess TET and therefore, they would state that they need not be challenged G.O.Ms.No.181. The contention put forth by the petitioners is self destructive. Once it is admitted that even a selected candidate has no vested right for appointment, that being the settled legal position, petitioners who were never selected would have no semblance of right to insist that the respondents should appoint them in respect of certain vacancies, which were notified under the Government Order, since recruitment process commenced prior to 23.08.2010. At this stage useful reference may be made to the decision of the Hon'ble Supreme Court in the case of State of M.P. vs., Sanjay Kumar Pathak reported in 2008 (1) SCC 456, and the decision in the case of East Coast Railway vs. Appa Rao reported in (2010) 7 SCC 678, wherein the Hon'ble Supreme Court pointed out that it is trite that though names of persons appears in the select list, the same by itself would not give rise to a legal right unless the action on the part of the State is found to be unfair, unreasonable or malafide. The State, thus, subject to acting bonafide as also complying with the principles laid down in Articles 14 and 16 of the Constitution of India is entitled to take a decision not to employ any selected (sic candidate) even from amongst the select list.
(xvii) Further, the Hon'ble Supreme Court in K.Jayamohan vs. State of Kerala, reported in (1997) 5 SCC 170, held that it is settled legal position that merely because a candidate is selected and kept in the waiting list, he does not acquire any absolute right to appointment and it is open to the Government to make the appointment or not. It was further held that even if there is any vacancy, it is not incumbent upon the Government to fill up the same, but the Appointing Authority must give reasonable explanation for non-appointment. Further, the Hon'ble Supreme Court in All India SCandST Employees' Assn., vs. A.Arthur Jeen, reported in (2001) 6 SCC 380, held that merely because the names of the candidates were included in the panel indicating their provisional selection, they did not acquire any indefeasible right for appointment even against the existing vacancies and the State is under no legal duty to fill up all or any of the vacancies as laid down by the Constitution Bench of the Hon'ble Supreme Court after referring to earlier cases in Shankarsan Dash vs. Union of India, reported in (1991) 3 SCC 47. Thus, the rules of the selection have not been changed in the midst of the selection process nor there is any arbitrariness in denying employment to the petitioners. In the light of the above, it is held that the petitioners have no right to claim in perpetuity to secure an appointment and Question No.5 is answered against the petitioners/appellants.
(xviii) In a batch of Writ Petitions in W.P.Nos.19588/2013 etc., batch, the petitioners who are similarly placed to that of the petitioners/appellants herein filed Writ Petitions claiming appointment to the post of Secondary Grade Teachers/Graduate Assistants [B.T. Teachers], based on the certificate verification done during 2010-2011 without insisting TET. Justice D.Hariparanthaman in an elaborate judgment, dated 23.09.2013, considered the matter at length and dismissed all the Writ Petitions by common order dated 23.09.2013 and among other things held that when the Association of Teachers filed a Writ Petition in W.P.No.2108 of 2012, for identical relief, the same was dismissed by order dated 10.02.2012 and the same attained finality as no appeal was preferred against the said order. After considering all the aspects of the matter, it was point out that if the plea of the petitioners' therein was accepted then more than twenty thousand candidates could enter without having a minimum qualification of TET and this Court cannot issue such a direction to appoint them contrary to the statutory provisions and the constitutional mandates as held by the Hon'ble Supreme Court in the case of C.Rekhi Ray vs. High Court of Delhi reported in (2010) 2 SCC 637.
18. In the result, the questions framed by the Hon'ble Supreme Court are answered as follows:-
(i) The petitioners/appellants concede that there was no advertisement and the posts were notified by various Government orders, and the question is answered accordingly;
(ii) The petitioners/appellants do not dispute that the posts have been filled up and there is no challenge to the select list;
(iii) The petitioners/appellants concede that the selection was based on State wide seniority in the employment exchange coupled with communal rotation and not based on interse merit.
(iv) The selection being only based on employment seniority and communal rotation, inter se merit was not the criteria for selection.
(v) In the light of the discussion in the preceding paragraphs, it is held that the petitioners/appellants have no vested right much less a right in perpetuality to have the appointment.
In the light of the above, all Writ Petitions and Writ Appeals are dismissed. Parties to bear their own costs. Consequently, connected Miscellaneous Petitions are closed.