Tamil Nadu
Computer Sc. B.Ed. G.T. Welf. Society Vs. Higher Sec. Scl. Computer Tech. Assn.
& Ors. [2009] INSC 1191 (9 July 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2009
(Arising out of SLP (C) No. 25097 of 2008) T. Nadu Computer SC B.Ed. G.T. Welf.
Society ..Appellant Versus Higher Sec. Scl. Computer Tech. Assn. & Ors. ..
Respondents WITH
CIVIL APPEAL Nos. OF 2009 (Arising out of SLP (C) Nos. 26768-26769 of 2008)
Dr.
Mukundakam Sharma, J.
1.
Leave granted.
2.
The present appeals were filed and directed against the common
Judgment and Order passed by the Division Bench of the Madras High Court
allowing the writ appeals filed by Respondent No. 1 and thereby dismissing the
writ petitions filed by the appellant herein. The writ petitions were filed by
the appellant herein contending, inter alia, that prior to 1999, graduates with
Post Graduate Diploma in Computer Applications from a recognized University
were appointed by Parents and Teacher Association of various schools as
Computer Teachers in the said schools. In the year 1999, the Government took a
policy decision to bring out a Scheme to offer computer education as a subject
in about 1200 Government Higher Secondary Schools from the academic year
1999-2000. On 17.3.1999, the Chief Minister, while presenting the Budget for
the year 1999-2000 before the Legislative Assembly informed on the floor of the
State Assembly that the Government had decided to utilize the maximum of
contemporary innovation in the information Technology for economic and social
development of the State and thus proposed to draw a scheme for offering
Computer Education based on curriculum designed by experts as an elective
subject in the 11th and 12th standards in all the 1200 higher secondary schools
in the State from the academic year 1999-2000. Pursuant to the aforesaid
statement and assurance of the Chief Minister and the policy decision of the
Government, the State Government on 19.03.1999 invited sealed tenders from
reputed organizations and computer training centers for leasing out computer
hardware and software and for providing computer training in 1200 Higher
Secondary Schools in 2 four regions, namely, Chennai, Trichy, Coimbator and Madurai
for five years by engaging qualified instructors of their choice. Thereafter,
the State Government entered into a contract with the Electronic Corporation of
Tamil Nadu (ELCOT) for a period of five years giving them the responsibility to
take all the steps for conducting the computer classes in about 1200 Higher
Secondary Schools.
3.
Pursuant to the instructions issued by the State Government, the
ELCOT selected many agencies to fill up the vacancies by selecting qualified
Computer Instructors. Such Computer Instructors were thereafter came to be
appointed in two phases. In Phase-I, 1332 instructors were appointed in the
year 1999 and in Phase-II 1062 Instructors were appointed in the year 2000, on
a consolidated salary of Rs. 1,500/-, which was later on enhanced to Rs.
2,000/- per month.
4.
In 1999, a writ petition came to be filed before the Madras High
Court.
While
dismissing the said writ petition on 23.04.1999, the Madras High Court observed
that in future, if the Government creates any permanent or sanctioned posts to
impart education on Computer Science in Government Higher School, such posts
should be filled up by recruiting candidates sponsored by the Employment
Exchange and by following the rule of Reservation.
5.
The aforesaid contract entered into with the private agencies came
to an end by February, 2005. However, considering the welfare of the students,
the contract employees were allowed to continue to work in the Government
Schools. Thereafter, the Government had taken a policy decision in the year
2006 to have one post of "Computer Instructor" in every Government
Higher Secondary School i.e. in all the 1880 Government/Corporation/District
Municipalities/Municipalities Higher Secondary Schools. Consequent thereto a
G.O. Ms No. 187, dated 04.10.2006 was issued, creating 1880 posts of Computer
Instructors for the aforesaid various schools. It was also stated that the
aforesaid posts of Computer Instructors would carry a pay scale of Rs. 5500-175-9000.
It was also mentioned in the said Memorandum that all the aforesaid posts which
are created would be permitted, on temporary basis subject to the rules in
force and would be valid for one year from the date of its filling up. In
continuation of the aforesaid policy decision another Memorandum was issued
intimating the decision of the Government that the Government itself can
appoint computer instructors, for the purpose of implementing computer
education scheme in all such schools. A broad criteria as to how selection
process would take place was also conveyed in the aforesaid letter. It was
stated in the said communication that Special test would be conducted by the
teachers' selection Board for computer teachers 4 who are serving in Government
High Schools and that selection would be made on the basis of the marks
obtained. It was also made clear by the State Government in the said
communication dated 04.10.2006 that educational qualification like B.Ed. for
selection of computer instructor would not be insisted upon. On 10.10.2006 the
State Government took a decision that those Computer Instructors appointed by
the contractors and who were in service on the dates when the Government took
over the responsibility of payment of their salary in Government schools
immediately after the expiry of the contract period would be eligible to appear
in the Special Test to be conducted by the Teachers Recruitment Board. It was
also stated therein that the minimum qualifying marks would be 50%.
6.
The decision of the Government to dispense with the B.Ed. qualification
was challenged by the qualified B.Ed. graduates in Computer Science before the
High Court of Madras. Such qualified B.Ed. graduates in Computer Science filed
a batch of writ petitions before the High Court of Madras. A learned Single
Judge of the High Court while disposing of the writ petitions held that the
said Government M.S. Letter No. 188, dated 04.10.2006 is unsustainable and
consequently quashed the same. Aggrieved by the same the Higher Secondary
School Computer Teachers Association preferred writ appeal whereas the
Government of Tamil Nadu preferred a separate 5 Writ Appeal. All the aforesaid
appeals were taken up for consideration by the Division Bench of the High
Court. By the impugned order dated 22.08.2008, the Division Bench of the High
Court set aside the order of the learned Single Judge holding that the learned
Single Judge was not justified in setting aside the policy decision of the
Government. It was held by the Division Bench of the High Court that it would
accept the statement of the State that the present recruitment is a special
recruitment for absorption of existing Computer Instructors, who were lawfully
engaged with due sanction of the Government and that for employment of future
vacancies for the posts of Computer Instructors, the recruitment would be made
from all eligible applicants (with B.Ed. qualification) without any preference
being shown to the already employed Computer Instructors in Government Higher
Secondary School and that such recruitment would be made on employment on
seniority basis. The High Court accepted the aforesaid statement of the
Government, which was taken as genuine and reasonable and consequent thereto
the High Court issued a direction to the Governmental authorities that the
entire process of selection on the basis of special drive examination would be
conducted strictly only as a onetime measure. It was also directed that the
process of holding the examination shall be completed within six months from
the date of receipt a copy of the judgment and that the left over vacancies and
the other vacancies, if any, arising in the meantime would be filled up within
three months 6 thereafter, as has been assured before the High Court, making
open the recruitment to all eligible B.Ed. and M.Ed. candidates and giving
employment on seniority basis, without any preference to the already employed
Computer Instructors in Government Higher Secondary Schools.
7.
Being aggrieved by the Judgment and Order dated 22.08.2008 passed
by the Division Bench of the High Court, the present appeals have been
preferred by the appellants herein.
8.
While issuing notice on 13.10.2008, this Court passed an interim
order holding and observing that the appointment of Computer Instructors
pursuant to the orders passed by the High Court allowing the State Government
to proceed with the process of appointment of Computer Instructors would be
subject to the result of the appeals. The effect of the aforesaid order was
that there was no bar on the part of the State Government to proceed and
continue with the appointment process of such Computer Instructors but would be
subject to further orders of this Court. Consequently the State Government
announced the date of the Special Recruitment Test as 12.10.2008, which was
incidentally a Sunday.
9.
The said test was held on the said notified date and the result of
the examination was also published. A list of the candidates, who appeared and
7 succeeded in the said test, was also published. It transpires from the
records placed before us that a total of 1714 candidates appeared in the
Special Recruitment Test in terms of the criteria laid down by the Selection
Board.
The
minimum qualifying marks for the posts of "Computer Instructors" was
fixed as 50% i.e. 75 marks out of total 150 marks. The said qualifying criteria
was laid down in the meeting held on 10.10.2006 wherein representatives of the
Government was also present. On the night of 12.10.2008, the respondent No. 3
published the list of provisionally selected candidates for appointment to the
post of Computer Instructors based on the Special Recruitment Test on the
Internet. While publishing the said marks of the candidates, it was made clear
that all candidates, who have secured 35% marks in the Special Recruitment Test
would be called for Certificate Verification. It is thus established, that the
State Government reduced the minimum qualifying marks for the post of Computer
Instructors to 35% which is contrary to an earlier decision taken in a meeting
held on 10.10.2006 that the minimum qualifying marks for filling up the posts
of Computer Instructors would be 50% i.e. 75 marks out of total 150 marks.
10.
It is thus established that the Government changed the rules of
recruitment and terms and conditions of appointment in the mid-way after the
selection process was initiated. The said decision was taken on a Sunday i.e. 8
on 12.10.2008, after the candidates had taken their exams. It also transpires
from the record that out of 1686 candidates only 857 candidates had in fact
secured 50% marks i.e. 75 marks out of 150 marks whereas 829 candidates secured
marks between 35% and 50% i.e. less than 75 marks out of 150 marks. It is also
indicated from the said result published that out of 1714 candidates, who had
taken the Special Recruitment Test it is 1686 candidates who were found to have
secured more than 35% marks, and they were provisionally selected for
certificate verification.
11.
The appellants have challenged before us the aforesaid alleged
arbitrary decision of the Government in conducting a special recruitment test
against the Rules and Guidelines issued for the recruitment of Computer
Instructors and also by altering the minimum qualifying marks from 50% to 35%
so as to absorb a larger number of candidates of its choice and thereby
violating its own norms and guidelines.
12.
We heard learned counsel appearing for the parties on the
aforesaid issues which were raised before us. The contract employees who were
appointed by the contractor were discharging their duties as Computer Instructors
in the Government Schools for a number of years on a consolidated pay. Their
plea for regularization of their service was, however, rejected by the Court
holding, inter alia, that they have no such vested right to claim for such
regularization. However, in order to give them one opportunity to get
themselves properly selected and then absorbed against regular posts, one time
opportunity was given to them by the Government for getting themselves selected
and then recruited and absorbed considering the fact that they were engaged and
paid from the fund released by the Government.
Qualifications
and norms for such Special Recruitment Test for the post of Computer
Instructors were also laid down by issuing a policy decision and instructions
wherein it was provided that the minimum qualifying marks would be 50%. The
Government on 04.10.2006 laid down the said instructions whereas the Special
Recruitment Test was scheduled to be held on 12.10.2008, which was a Sunday.
The test as scheduled was also held in which undisputedly only 894/857
candidates had received more than 50% marks whereas 906/829 candidates secured
marks below 50% but above 35% and they have also been shown as qualified in the
test in terms of the amended decision taken by the Government of Tamil Nadu on
the night of 10.10.2006 i.e. after the recruitment process was started and even
after the Special Recruitment Test was held.
13.
The appellants herein have challenged the entire process of
selection contending, inter alia, that such a Special Recruitment Test could
not have been held for giving advantage to contract employees, who were not
even 10 qualified persons to be appointed as such Computer Instructors in
Government schools. The rules provide that such posts of Computer Instructors,
which are to be filled up as against permanent and sanctioned posts to impart
education in computer science in Government Higher Secondary School would be
filled up by following the rules of reservation in accordance with the existing
Rules for such appointment. It was submitted by the counsel appearing for the
appellants that entire action of holding the Special Recruitment Test for
appointment of Computer Instructors was illegal since it was held in violation
of the order of the Madras High Court dated 23.04.1999 in W.P. No. 6565 of
1999, wherein the High Court has specifically observed as follows:
"In
future if the Government creates any permanent or sanctioned posts to impart
Computer Science in Government Higher Secondary School, no doubt such posts shall
be filled up by recruiting candidates sponsored by the Employment Exchange and
by following the rules of reservation".
14.
Counsel appearing for the respondents, however, submitted that
since these contract employees have been working for a very long time in the
Government Schools, therefore, the Government had taken the decision to reduce
the minimum qualifying marks to see that at least some of them who could
qualify in the Special Recruitment Test could be recruited and absorbed so as
not to deprive them from getting absorbed in the Government employment through
a regular process. It was also submitted that out of 1714 11 candidates, who
have written the Special Recruitment Test only 894 candidates could receive
more than 50% marks whereas 906 candidates could obtain less than 50%, which
was minimum qualifying marks prescribed by the Government in its earlier policy
decision but obtained more than 35% marks.
Consequently,
it was submitted that the Government thought it fit that the said minimum
qualifying marks should be reduced to 35% so as to absorb more people, who are
still working in the Government Schools as Computer Instructors.
15.
We have considered the aforesaid rival submissions of the counsel
appearing for the parties in the light of the records placed before us. It is
clearly established from the records that in order to give one time
opportunity, a Special Recruitment Test was ordered to be held for selection
and recruitment as also absorption of existing Computer Instructors. The said
decision was taken on sympathetic consideration and with the intention of doing
justice to those existing Computer Instructors, who were working in Government
Schools for a very long time. Such a recruitment drive and test was held by
laying down Rules of Recruitment thereby providing a level playing field for
all concerned. Prior to holding of the said Test guidelines were formulated
through a policy decision laying down the criteria that the minimum qualifying
marks in the said test would be at least 50%. The said 12 guidelines of
Recruitment as laid down through a policy decision was sacrosanct and was
required to be followed for all practical purposes even if we accept that the
Government could have filled up the said posts of Computer Instructors by
holding a Special Recruitment Test of the aforesaid nature as one time
exception. We, however, cannot hold that the subsequent decision of the
Government thereby changing qualifying norms by reducing the minimum qualifying
marks from 50% to 35% after the holding the examination and at the time when
the result of the examination was to be announced and thereby changing the said
criteria at the verge of and towards the end of the game, as justified for we
find the same as arbitrary and unjustified. This Court in Hemani Malhotra vs.
High Court of Delhi [ 2008 (7) SCC 11 ] has held that in recruitment process
changing rules of the game during selection process or when it is over are not
permissible.
16.
Thus we hold and declare that those candidates who had secured
more than 50% qualifying marks would he held to have qualified in the said test
and the remaining candidates would be treated as unsuccessful/failed and
therefore became ineligible to be permanently recruited and absorbed in
Government Schools. However, we give a liberty to the State Government to hold
a fresh examination/recruitment test to fill up all the remaining posts of Computer
Instructors as against sanctioned and vacant posts of Computer Instructors, 13
which we are told would be more than 1000, by holding a recruitment test in
terms of assurance given to the High Court. We, however, give liberty to those
unsuccessful/failed candidates, who have secured less than 50% marks and more
than 35% marks in the earlier Special Recruitment Test and desire to apply as
against the advertisement, which shall be issued in newspapers and also by
calling names from the Employment Exchange. The candidates, who had applied and
appeared in the Special Recruitment Test and obtained above 35% marks would
accordingly be allowed to appear if they so apply against the advertisement to
be so issued in terms of this order although they may not have B.Ed. Degree
which shall, however, be treated only as one time concession and exception.
17.
Consequently, we give the following directions to the State
Government that:
a) Only
those candidates who had secured more than 50% qualifying marks in the Special
Recruitment Test shall be treated as qualified and recruited as Computer
Instructors and they shall be so absorbed and their service shall be so
regularized in accordance with law;
b) The
remaining candidates who had secured less than 50% qualifying marks but above
35% marks should be declared and held to be unsuccessful and failed in the said
Special Recruitment drive but they 14 would be allowed to appear in the next
Recruitment Test to be held for filling up the remaining vacant posts of Computer
Instructors without insisting upon them to have B.Ed. degree as one time
exception and concession;
c) The
State Government shall also hold the said test by inviting applications through
issuing an advertisement and also allow candidates to take the test sponsored
by the Employment Exchange. In the said test all other rules of appointment for
such post and the rules of reservation would also apply. The only exception
would be the candidates who had received more than 35% marks in the earlier
Special Recruitment drive but less than 50% marks which was qualifying marks
may not have B.Ed. degree, which would be treated as one time exception for
them as they were working as Computer Instructor.
18.
In the light of the aforesaid observations and directions, the
present appeals are allowed to the aforesaid extent.
....................................CJI
......................................J. (P. Sathasivam)
......................................J.
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