K. Anthony Savarimuthu and Others vs The Director of School Education and Others

M.N. Chandiurkur, C.J.—These petitions as well as several other petitions which have all been filed by teachers who hold teachers certificates issued by the Karnataka Secondary Education Examination Board, raise a question which is of considerable importance to a large body of teachers who claim that they are entitled to be appointed as teachers in the schools in the State of Tamil Nadu.

2.The Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (hereinafter referred to as the 1973 Act), came into force on 1st December, 1974. The Act was enacted for the purpose of regulation of recognised private schools in the State of Tamil Nadu. Prior to this enactment, the affairs of the educational institution in Tamil Nadu were controlled by the Government of Tamil Nadu in accordance with what were called Educational Rules made from time to time. The Educational Rules prescribed qualification for different kinds of teachers.

After the 1973 Act came into force, the appointment teachers and their qualifications were mainly governed by the provisions of Section 19 of the Act and the Rule made thereunder. Section 19 of the Act enabled the Governments to make rules regulating the number, qualifications and conditions of services (including promotion pay, allowance, leave, pension, provident fund, insurance, age of retirement and disciplinary matters, etc. of the teachers and other persons employed in any private school The rule making power of the Government is contained in Section 50. In exercise of this rule making power, the Government of Tamil Nadu made the Tamil Nadu Recognised Private School (Regulation) Rules, 1974 (hereinafter referred to as the Rules). These rules were amended from time to time Rules 15 of the Rules dealt with qualifications and conditions of service of teachers and other persons. By the amendment made in 1975, Rule 15(6) provided that:

Teachers and other persons employed in a private school shall possess the qualifications specified in Annexure V.

We are concerned with item 3 of Annexure V. which deals with qualifications for appointment as a secondary grade teacher. Item 3 reads as follows:

Secondary Grade Teacher. (1) S.S.L.C.

(2) T.S.L.C. of Secondary Grade or its equivalent Provided teachers who have passed the Nursery, Montessori and Kinder garden School leaving Certificate examination of Secondary Grade shall be employed to handle standard I and II only.

In view of Section 19 deal with Rule 15 and Annexure V, the qualification for being appointed as a secondary grade teacher was that he should possess a Secondary School Leaving Certificate and, in addition he must also possess a Training School Leaving Certificate for Secondary Grade or its equivalent. Now, so far as the State of Tamil Nadu was concerned, the Training School Leaving Certificate was given after undergoing a course of two years at the Teachers Training Institutes, whether run by the State Government or by private recognized institute. The Training School Leaving Certificate is now known as Diploma in Teachers Education.

It is not disputed that before 1973 Act came into force, almost for over a periods of 20 years, teachers who had obtained a certificate from the Karnataka Secondary Education Examination Board-we shall refer to this certificate as the Karnataka certificate-were given appointments in Schools in Tamil Nadu, and for all intents and purpose the Karnataka certificate was equated with the T.S.L.C. issued by Government of Tamil Nadu. This state of affairs consumed till 5th August 1981. Till that date, me teachers who were appointed in private schools had to get their certificates approved by the Director of School Education. These certificates were approved almost as a matter of course, because they were treated as equivalent of T.S.L.C. of Secondary Grade, thereby satisfying the requirement of Annexure V. Consequent upon recognition of These teachers, by a process of what the department called evaluation schools were also entitled to get Government grants for paying their salary.

On 5th August, 1981, the Government in the Education Department issued an order in G.O. Ms. No. 1667, dated 5th August, 1981. This order refers to a communication from the Director of School Education dated,27th March, 1981, in which the Director indicated that the Karnataka certificate is not equivalent to the certificate issued by the State of Tamil Nadu. The Director, therefore, sought orders of the Government for issuing suitable instructions.

to stop the appointment of teachers trained in Karnataka State in Schools situated in Tamil Nadu until number of unemployed Secondary Grade Teachers trained in Tamil Nadu is wiped out.

The Director also requested the Government.

to permit him to stop the evaluation of these certificates with immediate effect.

The G.O. recites that the Government accept the suggestions of the Director of School Education, Madras and permit him to defer the evaluation of the teachers Training Certificate of Karnataka State with immediate effect.

A further direction which was permitted to be given by the Director was in the following terms:

The Director of School Education is also permitted to issue necessary instructions to defer appointment of Karnataka State Teachers Certificates holders as Secondary Grade Teachers in Middle or Higher Elementary schools till the candidates possessing Secondary Grade or Senior Basic Grade Training School Teachers Certificates issued by the Director of Government Examination, Madras are appointed.

Consequent upon this G.O. a larger number of teachers who had already obtained the Karnataka certificates and had also, been given appointments in private schools, found that their certificates were not being evaluated and they therefore filed a large number of petitions in this Court or Mandamus, requesting the authorities to approve with evaluation the appointment of the Petitioners as Secondary Grade Teachers from the date of their appointment. The Petitioner in Writ Petition No. 7286 of 982 had obtained the Karnataka Certificate on 8th July 1981 and had joined as a temporary secondary grade teacher in R.C. Middle School Siluvaipatti, Tuticorin taluk, Tirunelveli District. Since the order of 1981 came in the way of his Karnataka certificate being evaluated he prayed for the Mandamus, as indicated above.

The Petitioners who came to this Court comparers against the refusal of the Director of Education to evaluate Karnataka certificates and treat them as being equivalent to the T.S.L.Cs. as contemplated by Annexure V of the Rules, fell in three categories as follows:

(i) Teachers who obtained Karnataka Certificates before 5th August, 1981 which were evaluated before 5th August 1981;

(ii) Teachers who obtained their Karnataka Certificates before 5th August, 1981. but the certificates were not evaluated; and

(iii) Teachers who obtained their certificates after 5th August, 1981, and whose certificates were not evaluated.

The occasion for the first category of teachers to approach this Court arose, because consequent upon the issue of G.O. Ms. No. 1667, dated 5th August, 1981, the authorities seemed to be with holding the grants to which the private schools were other Wise entitled to. Some of these petitions came up before Ramanujam, J., who on 10th November, 1982 passed a common order in Writ Petition Nos. 10817 of 1981 and 6520 and 6521 of 1982. The learned Judge took the view that on the relevant date, i.e. 5th August 1981, there was a valid evaluation made by the Director of School Education under Rule 14 of the Education Rules of the certificates issued by the Karnataka Board as equivalent to the similar certificates issued by the State of Tamil Nadu and as long as that evaluation continued to subsist the Petitioners were entitled to be considered for appointment in the State of Tamil Nadu, and their applications could not be rejected merely on the ground that they were holders of the Karnataka State Teachers Training Certificates. The learned Judge found that the evaluation of the Petitioners, certificates had been made long before the issue of G.O. Ms. No. 1667, and that G.O. did not specifically say that the evaluations already made will stand wiped out. The Warned Judge therefore took the view, that the State authorities could not ignore the earlier evaluation without canceling or setting aside the same after giving notice to the persons concerned. Consequently the order, dated 14th August, 1981 under which instructions were given by Director consequent upon the issue of the G.O., dated 5th August, l981; to the effect that Inspecting Officers should not approve appointment of Karnataka State Teachers Certificate-holders as Secondary Grade Teachers in Middle or Higher Elementary Schools till the candidates possessing Secondary Grade or Senior Basic Grade Training, School Teachers Certificates issued by the Director of Government Examinations, Madras are appointed was quashed.

In these petitions we are now concerned with the other who categories of teachers. Out of a large number of teachers who have secured their certificates a very small number of teachers have secured the certificates after 5th August 1981; but in none of these cases have the certificates been evaluated, obviously in view of G.O. Ms. No. 1667, dated 5th August, 1981. These writ petitions have been pending for quite some time. During the pendency of these writ petitions, the Government came up with another G.O. Ms. No. 1236, dated 17th September, 1984, By this G.O., the Government notified that they had examined the matter carefully with regard to the equivalence of the Karnataka certificate with the T.S.L.C.; and laid down certain criteria which the Director of School Education was to observe while evaluating the Karnataka State Teachers Training Certificates. These criteria were as follows:

(i) Teachers Training Certificates holders of Karnataka State should have passed their S.S.L.C. in Tamil Medium with Tamil as I language or should have taken Tamil as Language in S.S.L.C. if they have studied in English medium.

(ii) They should have obtained 50 per cent of marks in aggregate in their S.S.L.C. as in the case of Teachers Training Certificate holders of Tamil Nadu;

(iii) They should have obtained 50 per cent of marks in each subject in their Teacher Training Certificate as in the case of Teacher. Training Certificate holders of Tamil Nadu.

(iv) If they studied other than Tamil Medium in their S.S.L.C. as well as teacher Training Certificates and satisfy the conditions 2 and 3 their certificate may be evaluated with a condition that they are eligible for appointment as Secondary Grade Teachers in Tamil Nadu only in Schools where medium of instructions is other than Tamil.

The Government also permit the Director of School Education to apply the above conditions while evaluating the Teachers Training Certificates of all other States in order to ensure uniformity and consistency.

When this G.O. came to be issued, the stand taken by the State Government was, that all requests for evaluation of the Karnataka Certificates which have pending on 17th September, 1984 would be considered in accordance with the conditions laid down in G.O. Ms. No. 1236. The teachers were obviously aggrieved by this stand and they were therefore given an opportunity to amend the writ petitions, if necessary, and state the grounds on which they were entitled to challenge the G.O., dated 17th September, 1984. Additional affidavits have been filed in some cases which raise a challenge basically to what is described as retrospective effect of the G.O. dated 17th September, 1984. We shall consider this a little later.

It is however, obvious that merely by issuing G.O. Ms. No. 1236. dated 17th September, 1984, the Petitioners. Main grievance that they were entitled to have their Karnataka Certificate declared as being equivalent to the T.S.L.C. does not cease to survive; and we have, therefore, heard the Petitioners on the validity of both G.O. Ms. No. 1667, dated 5th August, 1981 and G.O. Ms. No. 1236, dated 17th September, 1984. Learned Counsel appearing for the Petitioners, namely, Mr. Marian, Miss Anna Mathew, Mr. Balasubramanian and Mr. Balasundaram were heard, In addition, we also heard Mr. Padmanabha Rao who appeared in Writ Petition No. 8356 of l993 in which also the validity of G.O. Ms. No. 1236, dated 17th September, 1984 is challenged.

Mr. N.R. Chandran the Additional Government Pleader has appeared for the Government in support of the stand that the Government was entitled to prescribe standards or criteria on which a Karnataka Certificate could be decided as being equivalent to T.S.L.C. He was supported by Mr. Balasundaram, who is appearing for the Association of Unemployed Teachers in Tamil Nadu which had filed Writ Petition No. 8000 of 1994, making a grievance that the education authorities were not implementing G.O. Ms. No. 1667, dated 5th August 1981 and a Mandamus should therefore, be issued to the Government to give effect to G.O. Ms. No. 1667, dated 5th August, 1981. As a matter of fact, the mandate asked for is in positive terms that the Director of School Education, the Chief Education Officer and the State of Tamil Nadu should not equate the Karnataka Certificate with that of Tamil Nadu Certificate for appointment to Secondary Schools in Tamil Nadu.

Learned Counsel appearing on behalf of the Petitioners have contended that the real intent and purpose of issuing G.O. Ms. No. 1667, dated 5th August, 1981 was to give preference to unemployed teachers who held the Tamil Nadu certificate but were not being appointed and that all appointments were being made from among the teachers who had obtained the Karnataka certificates. Reliance was placed on the counter affidavit filed on behalf of the State Government in which according to the learned Counsel the fact that Karnataka certificate was equivalent to the Tamil Nadu Certificate was accepted. According to the learned Counsel, what was intended to be achieved by the G.O. Ms. No. 1667, dated 5th August, 1981 was to wipeout unemployment of teachers from Tamil Nadu and it could not be a valid c(sic)an for not evaluating the Karnataka certificate of the teacher. The learned Counsel also contended that the G.O., dated 17th September, 1984 was really intended to carry out the purposes and object with which the 1981 G.O. was issued, and if the G.O., dated 5th August, 1981 was quashed, the G.O. dated 17th September, 1984 was also liable to be quashed. A large part of the argument urged before us was on the footing that it was not open to the Government by an executive order like the G.O., dated 17th September, 1984, to give it a retrospective effect so as to adversely affect the rights of teachers who had obtained Karnataka certificate and who were entitled to have that certificates evaluated, because it had always been treated as being equivalent to the Tamil Nadu certificate in the past. The learned Counsel appearing on behalf of the Petitioners, however, very fairly conceded that if the Tamil Nadu Government wanted to lay down guidelines for the purposes of ascertaining the equivalence of Karnataka certificate with the Tamil Nadu certificate, it is undoubtedly open to the Tamil Nadu Government to do so, but contended that this could be done only prospectively, with the result that only certificates obtained after 17th September,1984 could be dealt with on the footing of the criteria laid down in the G.O., dated 17th September, 1984. We shall now consider these contentions.

At the very outset, it is necessary to properly appreciate the G.O., dated 5th August,1981 in the light of the counter affidavit, which has been filed by the State. Undoubtedly, Writ Petition Nos. 10718 and 10909 of 1981 are on board for hearing. Before going to the counter-affidavit, it is necessary to scrutinise carefully the G.O., dated 5th August 1981. In the first paragraph of the G.O., reference is made to the fact that the Director of School Education has indicated that the Karnataka State Teachers Training Certificate is not equivalent to the certificate issued by the State of Tamil Nadu. In the same paragraph, reference is made to the suggestion made by the Director of School Education that suitable instructions might be issued to stop the appointment of teachers rained in Karnataka State in schools situated in Tamil Nadu, until the number of unemployed Secondary Grade Teachers trained in Tamil Nadu is wiped out. In the same paragraph the request of the Director is noted by which he asked for permission to stop the evaluation of the certificates with immediate effect. Carefully read, it cannot be seriously doubted that the Director of School Education had indicated to the Government that the Karnataka certificate is not equivalent to the Tamil Nadu Certificate. But when the G.O. made reference to the instructions which were sought by the Director, it appears that the instructions were sought not with a view to stop the evaluation of the Karnataka certificates permanently, but the evaluation was requested to be stopped for a certain period of time; and as the G.O. itself put, this period of time was until the number of unemployed Secondary Grade Teachers trained in Tamil Nadu is wiped out. This indicates that even according to the Director, if the teachers in Tamil Nadu could be absorbed, then even he did not see any difficulty in appointing teachers holding Karnataka certificates. When we go to the second paragraph of the G.O., it is important to bear in mind that what the Government permitted the Director to do was:

to defer the evaluation of the Teachers Training Certificate of Karnataka State with immediate effect.

This clearly indicates that there was no ban on the evaluation of the Karnataka certificates, but the evaluation was being merely postponed. As if to make them matter further clear, in the last sentence in the G.O., what the Director was asked to do is to issue necessary instructions:

to defer appointment of Karnataka State Teachers Certificates holders as Secondary Grade Teachers till the candidates possessing Secondary Grade or Senior Basic Grade Training School Teachers Certificates issued by the Director of Government Examinations, Madras are appointed.

The direction to defer the evaluation was, therefore, to be operative only as long as teachers holding the Tamil Nadu certificate were not appointed. We do not see how the operative part of the G.O. dated 5th August, 1981 can be construed as even remotely suggesting that the Government had accepted the suggestion of the Director that the Karnataka certificate should not be treated as being equivalent to the Tamil Nadu certificate. As a matter of fact, indication is to the contrary, because if the Karnataka Certificate-holders could be appointed after the unemployed teachers holding Tamil Nadu Certificates were all provided for, this could not have been done unless the Karnataka certificate was treated as being equivalent to the Tamil Nadu certificate for the purposes of Annexure V. We are, therefore, unable to read the G.O. dated 5th August 1981 as containing the decision of the State Government that the Karnataka Certificates seemed to be equivalent to the Tamil Nadu Certificate.

If there is any doubt about the object and effect of this G.O., dated 5th August, 1981, the matter stands clarified by the averments made in the counter-affidavit filed in writ petitions where an express challenge was made to G.O., dated 5th August, 1981. As if to pinpoint the controversy involved, in most unmistakable and unambiguous terms, the counter-affidavit in paragraph 2 stated as follows:

The salient point governing the whole issue is that while thousands of candidates who were regularly trained in Tamil Nadu are unemployed, persons who took the training in Karnataka are appointed as teachers. If this is allowed to continue, all the Tamil Nadu-trainee-teachers will never get teachers jobs and they will be put to hardship.

These averments give an indication as to what was at the back of the mind of the authorities, when they issued G.O., dated 5th August, 1981. They did not question any equivalence between the two certificates as a major issue, but the salient point even according to them was that, if Karnataka certificate-holders were given appointments in Tamil Nadu, then teachers who hold Tamil Nadu certificates, of which category there were a large number would never be appointed. The whole object of this G.O. dated 5th August 1981, was clearly to put a ban on Karnataka State Certificates holders from being appointed in posts for which the Government wanted the unemployed teachers in Tamil Nadu to be appointed, an approach which is wholly contrary to the guarantee of equality of opportunity in the matter of employment found in Article 16 of the Constitution of India. In a paragraph 7 of the said counter-affidavit, there is a clear admission that the Karnataka Certificate has been treated as equivalent to the Teachers Training Certificate of Secondary Grade issued by the authorities of Tamil Nadu. A contention is raised by the Petitioners that both these certificates have been treated as equivalent of each other. While dealing with this contention, the averment in paragraph 7 is it is submitted that though these certificates are equivalent to that of secondary grade of Tamil Nadu evaluation has been, stopped only for reasons stated in para 4 and evaluation is not a formal act as alleged. In the same paragraph it is further averred as follows:

When teachers were not available in Tamil Nadu teachers from other States came and they were evaluated. Now with a glut in Tamil Nadu with thousands of unemployed teachers, it is the duty of the Government to regulate when particularly it was even brought to their notice that Karnataka Certificates are actually inferior academically as explained above and States like Kerala are taking very serious action on the same issue in this State.

Reference is undoubtedly made in paragraph 4 to the effect that there is a difference between the certificates issued in Tamil Nadu and those issued in Karnataka. This itself lies, according to the affidavit in the fact that the educational qualification for admission to the Secondary Grade Training, though in both States is S.S.L.C. in so far as Tamil Nadu is concerned, the minimum marks for admission in Teachers Training Institutes is 300 to S.S.L.C. the minimum passing marks are 50 per cent and the syllabus in Tamil Nadu lays emphasis on Tamil languages the medium of instruction while in Karnataka there is no minimum prescribed for admission, the minimum passing marks are 35 per cent and there is no emphasis on Tamil language. While we cannot dispute the right of the educational authorities, and, indeed of the State Government, to lay down the criteria on considerations which must essentially be academic on which the question of equivalence of the two certificates can be properly determined, we are primarily concerned with the question, whether the G.O. dated 5th August, 1981, can be read as containing a decision of the State Government not to recognize the Karnataka certificates after 5th August, 1981. That there is a difference in academic standards or with regard to the passing marks or with regard to minimum marks for seeking admission to the certificate course, may be a good ground for reviewing the equivalence which held the field for almost 20 years; but what we are concerned with is, whether the Government has reached the decision not to equate the two certificates on 5th August, 1981. Even in paragraph 4, emphasis is laid on the plight of the unemployed teachers who Could not get employment in Tamil Nadu with the result that the Government was forced to restrict the admissions in the Teachers Training Institutes not only numerically but even period wise; the admissions were made only in alternate years. It is obvious from the averments made in the counter affidavit that the Government was impelled to take the decision of stopping evaluation of the Karnataka certificates only because there is a large number of unemployed teachers with T.S.L.Cs. and not because it is not equivalent. In Writ Petition No. 8156 of 1983,the later of Director of School Education, dated 30th December, 1931 is produced in which he states that Karnataka certificates equivalent to T.S.L.C. but in view of G.O. Ms. No. 1667 under orders of Government equalization is stopped. We may also refer to the averments in paragraph 10 of the counter affidavit in which the Government really came out with the object with which G.O. Ms. No. 1667, was issued. Paragraph 10 of the Counter-affidavit reads as follows:

It is most respectfully submitted that orders in G.O. Ms. No. 1667, Education, dated 5th August, 1981 were issued for the welfare of about 15,000 unemployed Secondary Grade trainees in Tamil Nadu Government issued order only to it stop evaluation for the teachers certificate of the Higher Examination of Karnataka and Instructions were issued not to approve such appointments and also to give preference to the holders of the Secondary Grade training in Tamil Nadu as the policy of the Government is to solve the unemployment problem.

These averments in paragraph 10 justify the construction which we have placed on the real internet and purpose and effect of G.O. Ms. No. 1667. The effect of G.O. Ms. No. 1667 was, therefore, Dot deracination of the equivalence of the Karnataka Certificate with the Tamil Nadu Certificate, but merely to postpone the evaluation until the unemployed teachers who held the Tamil Nadu certificate had secured employment. As already pointed out such an approach would be wholly impermissible, once the two certificates are treated as equivalent of each other, the State could not show any preference to any particular class of teachers merely on the ground that they were holders of certificates issued by an institution in Tamil Nadu.

Once we place this construction on the G.O., dated 5th August, 1981, the natural result would be that equivalence of the Karnataka certificate with the Tamil Nadu certificate would continue to be effective till 17th September,1984 when the G.O. Ms. No. 1236, was issued. The only impediment for the evaluation of the certificates of the Karnataka certificate holders was G.O. dated 5th August, 1981. once that is out of the way in view of the construction placed upon it, then obviously whatever certificates were submitted to the State Government till 17th. September, 1984 would have to be dealt with on the footing that the Karnataka certificate was equivalent with the Tamil Nadu certificate.

The learned Additional Government Pleader has referee to certain decisions in support of the proposition that it is open to the State Government to deal with the question of equivalence of two educational qualifications on the basis of a valid reason. The three decision on which reliance was placed were, Miss Sathya Rao (Represented by father and guardian U.N.R. Rao) and Others Vs. The University of Madras and Others, . Meenakshi Sundaram v. Director of Legal Studies (1981) 2 M.L.J 141 and Punjab University, Chandigarh Vs. Devjani Chakrabarti and Others, In the University of Madras case cited supra the question which fell for consideration before the Division Bench of this Court was, whether it was within the powers of the Syndicate of the Madras University to lay down conditions for admission 5 and in that context after referring to the decision in Kruse v. Johnson (1898) 2 Q.B. 915 and to another decision in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 K.B. 223. the Division Bench at page 418 observed as follows:

The above pronouncements make it clear that a Court cannot sit in judgment as if it were an Appellate Authority ever the wisdom of a particular body which made the subordinate legislation or passed the by-law or prescribed the conditions or qualifications and come to a conclusion differing from the one which that body took on the reasonableness or otherwise of such subordinate legislation, by-laws or conditions or qualifications. The principle is that only when it is established that no reasonable person could have come to such a conclusion or could have made such a by-law or subordinate legislation, the Court can interfere. It should not be forgotten that in the present case the body which was entrusted with the power is the Syndicate of the University which may be considered to be an expert body in relation to matters on education. Whether one considered it to be an expert body or not, the legislature thought fit to consider such a body as an expert body on matters relating to education and has chosen to confer the power en such a body. Therefore unless the Court is Convinced that the conditions prescribed in the present case are so unreasonable as no reasonable person would have come to or are alien or foreign to the purpose for which the power was con erred on the Syndicate, the Court cannot held that the conditions imposed by the Syndicate are unreasonable as to avoid the same.

There are can be hardly any quarrel with the view taken by the Division Bench. It is not the case of the Petitioners, nor would it be possible to go into the question, it is raised that this Court must go into the question as to whether the equivalence has been made properly or not, that is, whether a certificate or decree granted by one educational institution stands a fair comparison in academic quality and excrescence with the certificate or degree granted by another educational institution., be it a University or Board, as that is a matter which is within the special competence of the educational authorities. The educational authorities are alone the proper authorities who can compare the nature of the educational course and the nature of the instruction on the basis of which the certificates or degrees are granted, and unless it is shown that a decision of the educational authorities is so perverse or so unreasonable or arbitrary that no reasonable person would arrive at such a decision, this Court would not interfere with such decision on academic matters under Article 226 of the Constitution of India As already observe, so far as the further criteria given in the G.O. dated 17th September, 1984 are concerned, there is no challenge by any of the Petitioners. The only challenge made was that, all pending application for a evaluation should not be decided in accordance with the criteria laid down on 17th September, 1984. We have already pointed out that when the decision of the State Government to treat the equivalence which so far was operative as being in operative, is take for the first time on 17th September, 1984, then the Karnataka certificate-holders had a right to have their certificates evaluated on the basis of such equivalence. It would be only in cases where evaluation is necessary after 17th September,1984, that the criteria laid down in G.O. Ms. No. 1236, would have to be considered.

The other decision in Meenakshi Sundaram v. Director of Legal Studies (1981) 2 M.L.J. 141 turned on whether a Degree obtained on the basis of a correspondence course could be taken into account for the purposes of admission to the B.L. course. The Petitioner in that case held a BGL Degree of Madurai Kamaraj University, obtained after pursuing the correspondence course. The rules prescribed by the Bar Council permitted only a student who had obtained a BGL, Degree after attending regular classes it to take the B.L Course. This was challenged on the ground of violation of Article 14 and the challenge was negative. It was held that the rules were well within the rule making power of the Bar Council While dismissing the petition, the Division Bench observed that the degree obtained after pursuing the correspondence course cannot be equated, in all circumstances, and in all respects with a degree obtained after attending regular classes, and. if a particular body or organization or association treats the two degrees as equal for certain purposes, that cannot make tie two degrees equal in reality or for all purposes. We do not see relevancy of this decision, so far as the facts of the present case are concerned.

The one and the only way purpose for which equivalence was claimed was he purpose of obtaining employment as teacher: It is not the case either of the Petitioner on of the State Government that the Karnataka certificate is equivalent to the Tamil Nadu certificate for some purposes and not for other purposes Eerier the one is equivalent of the other or it is not for the purpose of appointment as a teacher in Tamil Nadu.

In the third decision of the Supreme Court, viz, Punjab University, Chandigarh Vs. Devjani Chakrabarti and Others, the Court was concerned with the decision of the Punjab University which had earlier equated the 12th Standard examination with Part 1 Examination of the Degree course, while subsequently the same examination was equated with Pre-University Examination; and the Court held that subsequent decisions were prospective and valid. This decision which essentially turned on point of time with reference to whether the decision of the Syndicate was operative, is not of any assistance to the learned Government Pleader.

It was contended by Mr. Chandran that, if certificates which were submitted on or after 5th August, 1981 are evaluated on the basis of the criteria laid down in G.O. Ms. No. 1236, dated 17th September, 1984, no grievance can be made that the G.O. dated 17th September 1984 is having a retrospective effect According to the learned Counsel, no vested right is being taken away merely because the certificates are of a prior date; and the application of the rules is prospective in character, because the determination of equivalence is only being one after 17th September 1984, So far as the concept of retrospective effect of either legislation or an executive order is concerned, the position is well settle d A statute is said to be retrospective only when it takes away a vested right retrospectively. But it is also well established that a statute is not retrospective merely because it affects the existing rights, nor is it retrospective merely because a part of the requisites for its action is drawn from a time antecedent to its, passing. Mr. Chandran, obviously has the latter concept in mind when he contends that a certificate may have been secured prior to 17th September, 1984, but merely on that ground, the G.O. cannot be said to be giving effect retrospectively. We have already pointed out that as the decision to go back on the equivalence is contained in G.O. dated 17tb September, 1984, the decision must be taken to have been reached only on that date. Till that date, equivalence of the two certificates having not been disturbed, there was clearly a vested right in the certificate holders of Karnataka, which certificate were already lying with the educational authorities for their evaluation of the basis of equivalence. Any applicability of the criteria laid down in the G.O. dated 17th September, 1984 to them would clearly adversely affect the rights of the Karnataka certificate-holders.

As part of the attack on the validity of G.O. Ms. No. 1667 dated 5tn August, 1981 and G.O. Ms. No. 1236, dated 17th September, 1984, Mr. Padmanabha Rao has contended that those G. Os. purport to amend the statutory Rules of 1974 which the State Government is not competent to do. The argument was that whenever it was intend to indicate that there was an institutional preference, a specific mention is made in service rules; and our attention was invited to Tamil Nadu State and Subordinate Services Rules, in which while specifying qualifications, it Was specifically laid down in respect of certain instruction that degrees of certain Universities would be necessary. For example, in Rule 19 of Part II-General Rules which prescribes special qualifications, there is an Explanation which provides that in cases where the Special Rules prescribed a degree or diploma as a qualification then a degree or diploma granted by any of the Universities or Institutions recognized by the University Grants Commission for the purpose of its grant mentioned in Schedule II to this part shall be recognized as the qualification. Our attention was also invited to the advertisement of the Public Service Commission in Writ Petition No. 8156 of 1983 in which while advertising the posts of Language Pandits, the qualification prescribed was:

a degree of any University in the State in the language concerned (namely, Tamil, Telugu, Malayalam or Urdu) as the main subject.

The argument appears to be that, when the educational authorities of the State of Tamil Nadu declined to consider a Karnataka certificate, they are, in fact, introducing in Annexure V something which is not permitted, because one of the qualifications is that the teacher must have a T.S.L.C. of Secondary Grade or its equivalent. Now, apart from the merits of effect of the two impugned G. Os., it is not possible for us to accept the contention that if the educational authorities of the State Government justifiably declined to treat any particular certificate as not being equivalent to the T.S.L.C. of Secondary Grade, they purport to amend the Rules of 1974 or the Annexure V. All that the Rules prescribe is that a teacher for appointment as a secondary grade teacher must held two qualifications. He must held a Secondary School Leaving Certificate and he must held the T.S.L.C. of Secondary Grade or any other equivalent certificate. This is implicit in the power to equate a certificate which is not T.S.L.C. of Secondary Grade with the certificate which is issued by Commissioner for Government Examinations in Tamil Nadu. Such power by its very nature is executive in character, because once an equivalent has to be determined that function has to be performed by the executive authorities, though such a decision of treating a certificate or treating a certificate issued by an authority other than in Tamil Nadu may be open to challenge on permissible grounds, it was clearly permissible for the State Government and the educational authorities to decide the question of equivalence it is not necessary to discuss the decision of the Supreme Court in State of Haryana, Vs. Shamsher Jang Bahadur, etc. etc., . in which the Supreme Court held that by an executive order a rule made by the Governor under Article 309 of the Constitution of India cannot be amended.

Some decisions were cited, before us by Mr. Padmanabha Rao in support of the argument that the issuance of the two impugned Government orders suffer from the vice of arbitrariness and any attempt to give effect to the impugned G.O. Ms. No. 1667, dated 5th August, 1981, would result in violation of Articles 14 and 16 of the Constitution and any attempt to give retrospective effect to the second G.O. Ms. No. 1236,dated 17th September, 1984 would also not be permissible. It is now well established that any arbitrary exercise of power per se would result in denial of equality of protection of the laws. (See A.L. Kalra Vs. Project and Equipment Corporation of India Ltd., .

This proposition is also laid down in three other decisions which have been cited, namely, E.P. Royappa Vs. State of Tamil Nadu and Another, . Kasturi Lal Lakshmi Reddy, Represented by its Partner Shri Kasturi Lal, Jammu and Others Vs. State of Jammu and Kashmir and Another, and Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, . However, in view of the fact that we have already indicated that the G.O. dated 5th August, 1981 cannot affect the rights of the teachers who have already obtained certificates and applied for their evaluation and that G.O. Ms. No. 1236, dated 17th September, 1984 cannot be given retrospective effect, it is not necessary to discuss the authorities cited by Mr. Padmanabha Rao.

We may, however, make it clear that so far as the impugned G.O. dated 17th September 1984 is concerned, I was clearly open to the State Government to lay down the fresh criteria for determining the question of equivalence. In the counter affidavit to which we have referred above, the circumstances which necessitated the issue of the criteria in the impugned G.O. dated 17th September, 1984 have been culled out. The averments in the counter affidavit point out the differences between the requirements of a certificate issued by the Teacher Training Institute in Tamil Nadu and similar institutes in Karnataka. A comparative statement which highlights those differences which is set out in the counter affidavit, is reproduced below:

Tamil Nadu Karnataka

(a) Minimum marks for admission in Teachers Training Institutes is 300 in S.S.E.C. No minimum marks for ad- mission Any one gets it for the mere asking

(b) Minimum marks for pass is 50 percent Minimum marks for pass 35%

(c) Syllabi different Tamil Nadu syllabi emphasises Tamil language as the medium of Instruction in Elementary Schools. No such emphasis on Tamil language

The first 2 criteria for admission to the Institutes in Tamil Nadu and Institutes in Karnataka have a direct impact on the quality of teachers who obtained those certificates. If the two certificates have to be equated, then there must be a similarity in the qualitative performance which is a qualifying factor for obtaining such certificates In Tamil Nadu, the minimum marks for admission in the Teachers Training Institutes is 50 percent that is 30 in the Secondary School Leaving Certificate examination while merely obtaining passing marks is enough for admission in Karnataka, which has a direct impact on the educational standards of teachers who undergo the training course. Similarly, in Tamil Nadu the passing marks are 50 per cent while the minimum passing marks in Karnataka are 35 per cent. This again has relevance on the question as to whether the two certificates must be treated as equivalent to one another. Teachers in Tamil Nadu essentially cater to education of children whose language is Tamil, and since Tamil is the medium of instructions in elementary schools, the question as to whether syllabus of the training course lays emphasis on Tamil as the language or medium of instruction is also a relevant consideration. By its very nature, the language of Karnataka being not Tamil, it is not possible that there would be emphasis on Tamil language with the result that, when catering to the" educational needs of students whose mother tongue is Tamil, putting them into the hands of teachers who may not be trained to teach in Tamil is bound to have some adverse effect.

All those three considerations appear to be eminently proper, which have now been considered, and while laying down the criteria it is obvious that second and third criteria, by insisting upon 50 per cent of marks in the aggregate in the S.S.L.C. and 50 per cent of marks in each subject in the Teachers Training Certificate examination, were intended to bring on par such teachers with the teachers who were issued certificates from the Tamil Nadu Institutes. The emphasis on Tamil has also been achieved by clauses land 4 in the criteria, which while giving effect to the concept of equivalence provide that the Karnataka certificate-holders who have passed their S.S.L.C. in Tamil Medium with Tamil as the first language or have taken Tamil as first language in T.S.L.C., if they have studied in English medium, will be recognized in schools, where the medium of instruction is Tamil. Under Clause 4 it is provided that if such teachers holding the Karnataka certificate have studied in a medium other than Tamil medium in their S.S.L.C. as well as Teachers Training Certificate they satisfy second and third conditional namely, securing 50 per cent of the marks in the aggregate and 50 per cent of the marks in each of the subjects in Teacher Training Certificate examination; and then their recognition will be restricted only as regards eligibility for appointment as secondary grade teachers in Tamil Nadu only in schools limited to instructional needs of other than Tamil students and as such each one of these four criteria has clear nexus with the equivalence of the certificates issued by the Tamil Nadu Institutes.

In Writ Petition No. 7286 of 1982 the certiorarified mandamus sought is that the second Respondent should be directed to approve with evaluation the appointment of the Petitioner as a secondary grade teacher in R.C. Middle School in Siluvaipatti, Tuticorin. In Writ Petition No. 3347 of 1982 the relief sought is that a mandamus should be issued to the second Respondent, that is the Director of School Education, Madras to evaluate the Petitioner''s teachers certificate issued by the Karnataka Board of Secondary Education. The Petitioners in the above two petitions will accordingly be entitled to that mandamus as prayed for. Both those petitions are allowed.

Mr. Balsubramaniam who appears in Writ Petition No. 255 of 1984 has raised a contention which, however, dots got seem to be raised even by the Government or the educational authorities. He has pointed out that when condition No. 3 prescribes that Karnataka certificate holders should have obtained 50 per cent of the marks in each subject in their teacher training certificate, there might be some difficulty in ascertaining whether these 50 percent marks have to be obtained separately in internal and external examinations. In the mark sheet examination appear to be internal and external. The fourth subject really consists of two subjects, namely Science and Mathematics. Reading criteria No. 3, it is obvious that the requirement is that 50 per cent marks must be obtained in each subject. If the total number of marks of each subjects even according to the mark list is made up of two elements namely, internal and external marks, then it is obvious, and indeed it is not disputed by the Additional Government Pleader, that this total of the marks obtained at the internal and external examinations will have to be taken into consideration for determining whether criteria No. 3 is satisfied. Having, regard to the view which we have taken, the two Petitioners in Writ Petition Nos. 3347 of 1983 and 255 of 1984 are entitled to the mandamus sought by them.

33.The overall effect of our decision, therefore, is that G.O. Ms. No. 1667, Education, dated 5th August,1981 and the communication which was issued by the Director of School Education on 14th August 1981 to the Inspecting officers not to approve the appointment of Karnataka State teacher certificate-holders as Secondary Grade Teachers in Middle or Higher Elementary Schools till the candidates possessing Second fry Grade or Senior Basic Grade Training School Teachers Certificate issued by the Director of Government Examinations are appointed, ceases to be operative and is quashed. Equally the subsequent proceeding, dated 11th September, 1981 issued based on it, is also quashed.

According to the learned Counsel for the Petitioners appearing in several petitions, there are cases in which the Karnata certificates held by the respective teachers are still with the educational authorities, but they have declined to evaluate them, or in some cases such certificates were sent by the schools for evaluation to the educational authorities and they have been returned to the school authorities and still other cases where in having regard to the communication and the attitude adopted by the educational authorities the certificates were still lying with the school authorities and have not been forwarded because they were not being evaluated by the department. In all these three categories of cases the certificate holders will have a right to have their certificates declared equivalent to the Tamil Nadu Certificates, provided the certificates have been handed over prior to 17th September, 1984.

Hence all thee writ petitions are allowed only regarding the aspect of evaluation of Karnataka certificate, as indicated above of costs.