A.P.

Dorothy vs The Government Of Tamil Nadu on 27 January, 2011

http://www.indiankanoon.org/doc/1148102/?type=print

Madras High Court

Indian Kanoon - http://indiankanoon.org/doc/1148102/

Madras High Court

A.P.Dorothy vs The Government Of Tamil Nadu on 27 January, 2011
DATED: 27.01.2011 CORAM THE HONOURABLE Mrs. JUSTICE R.BANUMATHI W.P.No.23234 of 2004 A.P.Dorothy ..Petitioner Vs. 1.The Government of Tamil Nadu, rep. by its Secretary, School Education Department, Fort St. George, Chennai-9. 2.The Director of School Education, College Road, Chennai-6. 3.The District Educational Officer, Aruppukottai, Virudhunagar Dist. 4.The Secretary,

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A.P.Dorothy vs The Government Of Tamil Nadu on 27 January, 2011

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SHN Ethel Harvey Girls Higher Secondary School, Sattur, Virudhunagar Dist. ..Respondents PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue a Writ of Certiorarified Mandamus or any other Writ, order or direction calling for the records relating tothe order of the 2nd Respondent issued in Na.Ka.No.59116/W/29/99 dated 12.7.2004 and quash the same and direct the Respondents to approve the Petitioner's appointment as P.G. Assistant (Economics) in the 4th Respondent School from 07.8.1998 with salary and other benefits forthwith. For Petitioner : Mr.K.Vijeyakumar For Respondent : Mr.K.H.Ravikumar, Government Advocate (Edn.) for R1 to R3 Ms.P.Mahalakshmi for R4 ORDER Petitioner seeks Writ of Certiorarified Mandamus to quash the order of 2nd Respondent in Na.Ka.No.59116/W/29/99 dated 12.7.2004 and to approve the Petitioner's appointment as P.G. Assistant (Economics) in the 4th Respondent School from 07.8.1998 and to direct the Respondents to disburse the salary and other benefits. 2. Brief facts are that Petitioner passed Plus Two and underwent B.Com. Degree course in Lady Doak College, Madurai from 1982-1985 and she failed in two papers i.e. Managerial Economics and Accountancy III in B.Com. Degree. Petitioner passed M.A. (History) degree under Open

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A.P.Dorothy vs The Government Of Tamil Nadu on 27 January, 2011

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University Stream of Annamalai University in May, 1993; B.Ed. Degree through correspondence course from Annamalai University in May, 1995; M.A. Economics through Open University Stream from Annamalai University in December, 1997 and M.Ed. Degree from Madurai Kamaraj University through correspondence course in April, 1999. Petitioner has also completed her B.Com. Degree in April, 2000. 3. Proposal for Petitioner was appointed as teacher in 4th Respondent School from June 1993 to July 1998. In the 4th Respondent School, retirement vacancy arose on 01.6.1997 due to the retirement of one P.G. Assistant (Economics) viz., Esther Regis Suseela. 4th Respondent Management being an aided school applied for permission to fill up the post from the Chief Education Officer, Virudhunagar which was granted in Mu.Mu.No.79131/E/97 dated 12.6.1997, a list of qualified persons from the Employment Exchange was sought for and Petitioner's name was also sponsored by the Employment Exchange for the selection of P.G. Assistant (Economics). On 06.8.1998, 4th Respondent Management conducted written test and interview and based on the merit and ability, Petitioner was selected as P.G. Assistant (Economics) from 07.8.1998 and Petitioner joined the post on 07.8.1998. 4. Petitioner's appointment was submitted for approval before the 3rd Respondent on 06.10.1998. Instead of approving the appointment of the Petitioner, 3rd Respondent has sought for certain clarifications from the 2nd Respondent through Proceedings Na.Ka.No.8217/A2/98 dated 23.11.1998 as to whether Petitioner has passed M.A. Degree directly without passing B.A. Degree and seeking for clarification. Earlier, Petitioner filed W.P.No.36821/2002 and Contempt Petition No.504/2004. By the impugned Proceedings Na.Ka.No.59116/W/29/99 dated 12.7.2004, 2nd Respondent rejected the request for approval which is challenged in this Writ Petition. According to Petitioner, as per G.O.Ms. No.216, P&AR Dept. dated 26.8.1997, degree obtained from Open University Stream of Annamalai University is already declared as equivalent to the degree awarded by all Universities and therefore, Petitioner is eligible for being appointed as P.G. Assistant (Economics). 5. Resisting the Writ Petition, Respondents filed counter contending that G.O.Ms. No.216,

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A.P.Dorothy vs The Government Of Tamil Nadu on 27 January, 2011

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P&AR Dept. dated 26.8.1997 is applicable for appointments only in Public Service and not for appointment of teachers in aided school and Petitioner cannot seek benefit of the said Government Order. According to Respondents, the order passed by the 2nd Respondent is based on the rules and regulations and the same cannot be challenged. 6. Mr.K.Vijeyakumar, learned counsel for Petitioner contended that Petitioner has got basic degree and she satisfies the norms for appointment as P.G. Assistant and while passing the impugned order, 2nd Respondent has not kept in view the G.O.Ms. No.216, P&AR Dept. dated 26.8.1997. It was further contended that Petitioner having obtained P.G. degree in different subjects other than her basic degree cannot put against her. In support of his contention, learned counsel for Petitioner placed reliance upon 2009 (1) CTC 463 [N.K.Geetha v. The Govt. of Tamil Nadu, rep. by its Secretary, School Education Department, Fort St. George, Chennai-9 and others]. 7. Mr.K.H.Ravikumar, learned Government Advocate (Edn) has submitted that the order passed by the 2nd Respondent is based on the rules and regulations and on merits and Petitioner cannot challenge the same. 8. In the impugned Govt. Letter No.11698/R/97-I P&AR dated 20.2.97, the proposal for approval of appointment of Petitioner was rejected on the following grounds:- "(i) The Annamalai University has also been included in Schedule-II of the General Rules for the Tamilnadu State and Subordinate Services. As such, with reference to Rule 19 of the General Rules for the Tamilnadu State and Subordinate Services, M.A. Degree course in various branches in Annamalai University under Open University System are automatically recognised as a qualification for appointment in Public Service". The said instructions are applicable only to Govt. Appointment and they are inapplicable to the appointment of teachers. (ii) In Govt. Schools, persons possessing the same subject in both the Degree and P.G. levels, alone are appointed as P.G. Assistants. The Writ Petitioner has not obtained a basic degree in Economics but obtained only a P.G. Degree in Economics through the Annamalai Open University. 9. In so far as first ground, it is no doubt true that Petitioner has obtained P.G. degree in History

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A.P.Dorothy vs The Government Of Tamil Nadu on 27 January, 2011

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and Economics in Open University Stream of Annamalai University. The impugned order refers to the letter dated 20.02.1997. But in the subsequent G.O.Ms. No.216, P&AR Dept. dated 26.8.1997, it has been ordered that degrees, Post Graduate Degrees, Diploma Courses awarded by the Annamalai Open University are recognised as equivalent qualifications for appointment in Public Services. While passing the impugned order, 2nd Respondent has not kept in view the said G.O.Ms. No.216, P&AR Dept. dated 26.8.1997. 10. Contention of Respondents is that G.O.Ms. No.216, P&AR Dept. dated 26.8.1997 speaks only about the Public Services and not teachers appointment. There is no force in the contention of Respondents. It is pertinent to note that in G.O.Ms.No.307 School Education (E2) Dept. dated 15.12.2000, Government has ordered since Annamalai University is one of the University included in the list of UGC and the degree awarded by Open University Stream are to be treated as regular degrees and that the persons who got higher qualification by obtaining degree/P.G. Degrees from Annamalai Open University Stream are entitled to get incentive increments. At the time of appointment of Petitioner in 1998, the Government passed an order recognising UG/PG degrees obtained from Annamalai Open University Stream is equivalent to the other UG/PG degrees, the Respondents are not right in contending that G.O.Ms. No.216, P&AR Dept. dated 26.8.1997 would be applicable only to Public Services. This is all the more so, this Court is of the view that in applying the said G.O., no distinction could be made between teachers and Public Services. More so when Petitioner has completed her B.Com. Degree course. 11. Next ground on which the proposal was rejected is that only the persons possesses same subject in both the degree and P.G. levels alone are appointed as P.G. Assistants and Petitioner has not obtained the basic degree in Economics, but obtained only P.G. degree in Economics and therefore, Petitioner does not possess P.G. degree in the same subject in which she has obtained the basic degree. In this regard, the learned counsel for Petitioner has contended that Tamil Nadu Private Recognised Schools (Regulation) Rules, 1974 nowhere states that P.G. teacher appointed in private school must possess same subject in UG and PG degree. In support of his contention, learned counsel for Petitioner placed reliance upon 2009 (1) CTC 463 [N.K.Geetha v. The Govt. of Tamil Nadu, rep. by its Secretary, School Education Department, Fort St. George, Chennai-9 and

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A.P.Dorothy vs The Government Of Tamil Nadu on 27 January, 2011

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others]. 12. It would be worthwhile to refer to the relevant rule, which has been stated in Annexure V (iv) (2) of Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974. The said relevant provision is to the following effect: Post-Graduate Assistants in Academic subjects. (i) A Master's Degree or its equivalent standard in the subject in respect of which appointment is made: Provided that persons holding the certificate in Science and Humanities for Graduate Teachers in High Schools shall be considered for appointment as teachers in the subject relating to Science and Humanities: Provided further that, other things being equal, preference shall be given to those who have studied the same subject in which he has obtained the Post-Graduate degree as main subject under Part III in degree level: Provided also that for appointment to certain subjects in which Master's degree are not awarded, persons possessing Master's degree in other subjects shall be considered: Provided also that a Master's degree in Statistics or its equivalent standard in Statistics shall be an alternative qualification for appointment as subject teachers in Maths by promotion; and (ii) B.T. or B.Ed. degree or its equivalent. 13. In 2009 (1) CTC 463 [N.K.Geetha v. The Govt. of Tamil Nadu, rep. by its Secretary, School Education Department, Fort St. George, Chennai-9 and others], question of appointment of P.G. Assistant in Malayalam was the subject matter in dispute where G.o.ms.No.361 dated 31.12.1999 was referred to. G.O.Ms.No.361 dated 31.12.1999 stipulates persons both holding Under Graduate as well as Post Graduate in the same language can be appointed in the post of language provided preference to be given in the event of all other things remaining equal. Referring to G.O.Ms.No.361 dated 31.12.1999, approval of appointment was rejected on the ground that Writ Petitioner possessed Under Graduate degree in different subject viz., History and only Post Graduate degree in Malayalam language and therefore, her appointment could not be approved. Referring to G.O.Ms.No.361 dated 31.12.1999 in 2009 (1) CTC 463 [N.K.Geetha v. The Govt. of Tamil Nadu, rep. by its Secretary, School Education Department, Fort St. George, Chennai-9 and others], the

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A.P.Dorothy vs The Government Of Tamil Nadu on 27 January, 2011

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learned single Judge held as under: "7. A plain reading of the said regulation discloses that in order to satisfy the qualification for the post of Post Graduate Assistants in language, such as Malayalam in this case, what is required is a Masters degree in the language in respect of which the appointment is to be made or its equivalent, along with B.T. or B.Ed. Degree or its equivalent. The question of applying second proviso nor giving any preference will arise if at all thereis more than one candidate to aspire for one single post of Post Graduate Assistant in language. Therefore, the application of the Second proviso does not arise to the case on hand where there is no competitor other than the petitioner who came to be appointed by the fourth respondent School by the order dated 1.12.2001. ...... 9. As far as the reference to G.O.No.361 dated 31.12.1999 is concerned, it is needless to state that when a statutory Rule contains a specific provision as regards qualification to be satisfied by way of a Government order, such a statutory Rule cannot be altered. In any event, the question of considering a person holding the qualification of Under Graduate as well as post Graduate in the same language, can, at the best, be considered if at all more than one person compete for the post, in which event, the Second proviso to the relevant regulation itself will take care of such a situation, which provides for a preference to be given in the event of all other things remaining equal. Therefore, reference to G.O.No.361 dated 31.12.1999, in the impugned order is also uncalled for." 14. The above view taken by the learned single Judge is applicable to the case on hand. Contrary to the statutory rule, Respondents cannot stipulate that for appointment as P.G. Assistant, Writ Petitioner should hold qualification of Under Graduate as well as Post Graduate in the same language. In any event, while completing B.Com. Degree, Petitioner has completed the Managerial Economics in which subject she has also completed M.A. Economics. 15. Placing reliance upon (2009) 4 SCC 590 [Annamalai University, represented by Registrar v. Secretary to Government, Information and Tourism Department and others], learned counsel for Petitioner has contended that the Hon'ble Apex Court has held that the Master degree obtained from Open University is not a valid degree. In the said decision, in Paragraphs (47) and (48), the

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A.P.Dorothy vs The Government Of Tamil Nadu on 27 January, 2011

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Supreme Court has held as under:- "46. ... The appointment made to the said post was challenged being contrary to the rule on the ground that the appellant therein does not have the valid degree as required. In the said case, the appellant had obtained a Master's degree from an Open University. The Honourable Apex Court has held that a degree obtained under the Indira Gandhi National Open University Act, 1985, from an Open University, is not a valid degree being contrary to a degree defined under the University Grants Commission Act, 1956 and the Regulations framed thereunder. 47. After holding that a degree obtained from an Open University is not a valid degree in accordance with the Rules of the Film and Television institute of Tamil Nadu, the Honourable Apex Court has dismissed the Special Leave Petition filed by the appellant therein. ...." 16. The question to be considered is whether the said judgment is to be applied to the case on hand. In Paragraph (65) of Annamalai University case even though the Supreme Court held that Master degree obtained by Ramesh in Open University System was not a valid decree, the Supreme Court held that "in view of a long-pending litigation, it would be unjust to deprive the Writ Petitioner from his lawful demand". In view of the above observations in Paragraph (65) of the said decision, this Court is of the view that Annamalai University case would be applicable only from the date of its judgment or otherwise, it would work hardship. Viewed from any angle, the impugned order cannot be sustained. 17. In the result, the impugned order is set aside. The 2nd Respondent is directed to approve the appointment of Petitioner from the date of her original appointment i.e. 07.08.1998 and pass appropriate orders preferably within a period of eight weeks from the date of receipt of copy of this Order and the Writ Petition is allowed. Consequently, connected M.Ps. are closed. No costs. bbr To 1.The Government of Tamil Nadu,

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A.P.Dorothy vs The Government Of Tamil Nadu on 27 January, 2011

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rep. by its Secretary, School Education Department, Fort St. George, Chennai-9. 2.The Director of School Education, College Road, Chennai-6. 3.The District Educational Officer, Aruppukottai, Virudhunagar Dist. 4.The Secretary, SHN Ethel Harvey Girls Higher Secondary School, Sattur, Virudhunagar Dist.

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