A.P. Dorothy vs The Government of Tamil Nadu

R. Banumathi, J.—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.

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

University Stream of Annamalai University in May, 1993; B. Ed. Degree through correspondence course from Annamalai Universityin May, 1995;

M.A. Economics through Open University Stream from AnnamalaiUniversity in December, 1997 and M. Ed. Degree from Madurai Kamaraj

University through correspondence course in April, 1999. Petitioner has also completed herB. Com. Degree in April, 2000.

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 forpermission to fill up the post from the Chief Education Officer, Virudhunagar whichwas granted in

Mu. Mu. No. 79131/E/97 dated 12.6.1997, a list of qualified personsfrom the Employment Exchange was sought for and Petitioner''s name was

alsosponsored 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.

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 Petitionerhas passed M.A. Degree directly without passing B.A. Degree and seeking for clarification. Earlier, Petitioner

filed W.P. No. 36821/2002 and Contempt PetitionNo. 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).

Resisting the Writ Petition, Respondents filed counter contending that G.O. Ms. No. 216, 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.

Mr. K. Vijeya kumar, learned Counsel for Petitioner contended that Petitionerhas got basic degree and she satisfies the norms for appointment

as P.G. Assistantand 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 thatPetitioner 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

TamilNadu, rep. by its Secretary, School Education Department, Fort St. George, Chennai-9 and others].

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.

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 theyare 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.

In so far as first ground, it is no doubt true that Petitioner has obtained P.G. degree in History 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.

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 recognizing 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.

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 others].

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.

In 2009 (1) CTC 463 [N.K. Geetha v. The Govt. of Tamil Nadu, rep. by itsSecretary, School Education Department, Fort St. George,

Chennai-9 and others],question of appointment of P.G. Assistant in Malayalam was the subject matter indispute where G.o.ms. No. 361 dated

31.12.1999 was referred to.G.O. Ms. No. 361 dated31.12.1999 stipulates persons both holding Under Graduate as well as Post Graduatein the

same language can be appointed in the post of language provided preferenceto be given in the event of all other things remaining equal. Referring

toG.O. Ms. No. 361 dated 31.12.1999, approval of appointment was rejected on the groundthat Writ Petitioner possessed Under Graduate

degree in different subject viz.,History and only Post Graduate degree in Malayalam language and therefore, herappointment 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 learnedsingle Judge held as under:

A plain reading of the said regulation discloses that in order to satisfy thequalification for the post of Post Graduate Assistants in language, such

asMalayalam in this case, what is required is a Masters degree in the language inrespect 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 norgiving any preference will arise if at all thereis more

than one candidate toaspire for one single post of Post Graduate Assistant in language. Therefore, theapplication of the Second proviso does not

arise to the case on hand where there isno competitor other than the Petitioner who came to be appointed by the fourthRespondent School by the

order dated 1.12.2001...

As far as the reference to G.O. No. 361 dated 31.12.1999 is concerned, it isneedless to state that when a statutory Rule contains a specific

provision asregards qualification to be satisfied by way of a Government order, such astatutory Rule cannot be altered. In any event, the question

of considering aperson holding the qualification of Under Graduate as well as post Graduate in thesame language, can, at the best, be considered if

at all more than one personcompete for the post, in which event, the Second proviso to the relevant regulationitself will take care of such a

situation, which provides for a preference to begiven in the event of all other things remaining equal. Therefore, reference toG.O. No. 361 dated

31.12.1999, in the impugned order is also uncalled for.

The above view taken by the learned single Judge is applicable to thecase on hand. Contrary to the statutory rule, Respondents cannot

stipulate thatfor appointment as P.G. Assistant, Writ Petitioner should hold qualification ofUnder Graduate as well as Post Graduate in the same

language. In any event, whilecompleting B. Com. Degree, Petitioner has completed the Managerial Economics inwhich subject she has also

completed M.A. Economics.

Placing reliance upon Annamalai University rep. by Registrar Vs. Secy. to Govt. Infn. and Toursm Dept. and Others, , learned Counsel for

Petitioner has contended that theHon''ble Apex Court has held that the Master degree obtained from Open University isnot a valid degree. In the

said decision, in Paragraphs (47) and (48), theSupreme Court has held as under:

... The appointment made to the said post was challenged being contrary to therule on the ground that the Appellant therein does not have the

valid degree asrequired. In the said case, the Appellant had obtained a Master''s degree from anOpen University. The Honourable Apex Court has

held that a degree obtained underthe 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 GrantsCommission Act, 1956 and the Regulations framed thereunder.

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 SLP filed by the Appellant therein. ....

The question to be considered is whether the said judgment is to beapplied to the case on hand. In Paragraph (65) of Annamalai University

case eventhough the Supreme Court held that Master degree obtained by Ramesh in OpenUniversity System was not a valid decree, the Supreme

Court held that ""in view of along-pending litigation, it would be unjust to deprive the Writ Petitioner from hislawful demand"". In view of the above

observations in Paragraph (65) of the saiddecision, this Court is of the view that Annamalai University case would beapplicable only from the date

of its judgment or otherwise, it would work hardship. Viewed from any angle, the impugned order cannot be sustained.

In the result, the impugned order is set aside. The 2nd Respondent isdirected to approve the appointment of Petitioner from the date of her

originalappointment i.e. 07.08.1998 and pass appropriate orders preferably within a periodof eight weeks from the date of receipt of copy of this

Order and the Writ Petitionis allowed. Consequently, connected M. Ps. are closed. No costs.