WP/16967/1997 of 1.A.THOPPIAN AND FIVE OTHERS Vs 1.STATE OF T.N.,REP.BY SECY. on 27 November 2002

:ORDER

Heard the learned counsel appearing for the parties.

2. The petitioners in this writ petition had challenged the legality ofthe G.O.No.423 dated 3.10.1997 to the extent that it has been laid down in thesaid G.O. that the benefit of G.O.No.113 dated 14.3.97 would be available tothose who have passed B.Ed.Decree in the subjects namely, Tamil, Science andMaths in their basic graduation.

3. Before dealing with the contentions raised by the parties, it is

4. The question relates to filling up of vacancies for the post ofSecondary School Teachers. The essential qualification for such teachers isS.S.L.C. and training in Secondary Grade. Since sufficient qualified personsbelonging to SC and ST were not available to fill up those posts, theGovernment decided to appoint persons belonging to SC and ST having higherqualifications, namely, graduates having B.Ed. qualifications. This was doneby the Government by issuing G.O.113 dated 14.3.1997. Thereafter, on 3.10.97,the Government issued G.O.423 dated 3.10.97 and the relevant portion of theG.O.423 is to the following effect.

"The Government examined the proposal formulated by the Director of Primaryschool education and agreed to accept the proposals. In accordance with that,subject to the conditions mentioned below, the posts of Secondary Grade Teachers 1152 could be filled up from the listed communities and ScheduledTribes those who have passed in B.Ed. Degree in the following discipline,that is, Tamil, Science and Maths in their basic graduation."

The other conditions incorporated in the aforesaid G.O. are not relevant forthe purpose of the present case and it is unnecessary to extract the otherportions.

5. The petitioners have challenged the validity of the conditionextracted above, wherein it is indicated that only persons having degree inTamil, Science and Maths as their basic graduation would be eligible forappointment as Secondary Grade Teachers.

6. The learned counsel appearing for the petitioners has contendedthat initially as per G.O. 113 dated 14.3.1997 all the persons belonging toSC and ST and having higher qualifications of graduation with B.Ed wereeligible to fill up the vacant posts. Subsequently, by confining therecruitment only to Tamil, Science and Maths graduates, the petitioners havebeen denied the posts of Secondary Grade Teachers. It has been submitted thatonly because sufficient Secondary Grade Teachers were not available, theGovernment had decided to recruit persons from SC and ST having higherqualifications and there was no justification in the subsequent G.O. toconfine such privilege only to the Tamil, Science and Maths graduates. It hasbeen indicated that in the normal course, the persons having S.S.L.C. andrequired training were eligible and they were not required to have passedMatriculation in a particular subject. It is submitted that if persons havingmere S.S.L.C. with training in Secondary Grade could be recruited in normalcourse, there is no justification to insist that persons having higherqualification must be graduates in a particular subject.

7. Counter affidavit has been filed on behalf of the Government. Inthe counter affidavit, it has been indicated that to cope up with the growingneed and requirement for teaching Science, Maths and Tamil in Standard VI toStandard VIII the Government took the policy decision to fill up the shortfallof vacancies in the post of Secondary Grade Teachers reserved for Scheduled

Caste/Scheduled Tribe with higher qualified candidates with Science, Maths andTamil subjects, so that their services can be utilised to teach Science, Mathsand Tamil in Standard VI to Std VIII without incurring further expenditure.It has been further indicated that the aforesaid measure was a temporarymeasure only adopted for two years to fill up the existing vacancies and isnot a permanent measure. It has been further submitted that this is aconcession given to the SC/ST candidates as a special case due to dearth ofSC/ST Secondary Grade Teacher candidates based on the policy decision taken bythe Government without offending Article 14 of the Constitution of India.

8. In a Division Bench decision reported in 1990(1) M.L.J. Page 146 itwas observed, "......When there is a complaint of violation of Articles 14 and 16 of theConstitution of India with reference to a rule or a statutory provision, itmust be found out as to whether two tests stand satisfied. The first test is,as to whether the classification on which impugned rule or statutory provisionis founded is based on intelligible differentia which distinguishes persons orthings grouped together from others left out of the group. The second test isas to whether the differentia in question has a reasonable relation to theobject sought to be achieved by the impugned rule or statutoryprovisions......"

9. The aforesaid extracted portion only reflects the unanimous opinionexpressed by all the Courts including the Supreme Court in several cases andit is unnecessary to burden this judgment by referring other decisions.

10. In the present case, there is no question of making a special provision for SC/ST. The original G.O. 113 dated 14.3.97 was applicable toSC/ST persons. The said G.O. had been issued with a view to fill up largenumber of existing vacancies, as sufficient number of secondary grade teachersbelonging to SC/ST were not available and the Government decided to fill upthose posts from persons belonging to SC/ST with alternate qualificationsnamely graduation with B.Ed. It is to be remembered that the trainedgraduates as compared to S.S.L.C. candidates with Secondary Teacher traininghave got higher qualification. It is submitted by the learned counselappearing for the State that, but for the scarcity of sufficient qualifiedTeachers, it would not have been necessary for the Government to pass anyorder for recruitment from higher qualified persons and only because personshaving the required qualification were not available, the posts were thrownopen to higher qualified candidates belonging to SC/ST.

11. As already noticed in normal course, persons having S.S.L.C. withSecondary Grade Teacher Training would have been eligible.

12. I fail to understand the rationale behind the policy G.O. 423

dated 3.10.97 where the posts were only confined to B.Ed., having Tamil,Science or Maths as their subjects at the stage of graduation. If such acondition was not applicable to the persons otherwise eligible as SecondaryGrade Teachers, it is not understood as to how it is necessary to insist uponScience, Tamil and Maths as the subjects at the graduation stage. Thecondition imposed appears to be arbitrary.

Ratio decidendi

13. For the aforesaid reasons, the condition as incorporated in G.O.423 dated 3.10.97 which has already been extracted, is found to be arbitrary,discriminatory and is hereby quashed. It is made clear that the postsreferred to in G.O.423 dated 3.10.97 can be filled up by trained graduatesteachers belonging to SC and ST who have done their graduation in any subject.It is not disputed that some posts have remained vacant. Steps need be takenfor filling up of those vacancies from the original candidates as per otherconditions in G.O. 113 dated 14.3.97 and G.O. 423 dated 3.10.97. However,the Government cannot insist that only graduates having Science, Maths andTamil would be considered. It is also made clear that if any candidate hascrossed the age limit that will not be considered as a bar as the matter hasbeen remained in the High Court for all these years.

14. This writ petition is accordingly allowed. There will be no orderas to costs. W.M.P.No.26884 of 1997 is dismissed. In view of the above noorders are necessary in W.M.P.No.1602/1999.

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To

1. The SecretaryState of Tamilnadu,Education DepartmentFort St. GeorgeMadras 92.Director of Primary EducationMadras 6