Mrs. K. Karpagam vs Governmenet of Tamil Nadu

N. Paul Vasantha Kumar, J.—The prayer in the writ petition is to quash the order passed by the second Respondent dated 17.7.2010

rejecting the request of the Petitioner to call for Certificate verification for selection to the post of Senior Lecturer in the subject of Chemistry for

Dtert/Diet and for a direction to the second Respondent to make an arrangement to fill up the existing vacancies in the subject, Chemistry for the

posts of Senior Lecturers in Dtert/Diet by calling the Petitioner, who is a Backward Class-Woman.

The case of the Petitioner is that the Petitioner passed M. Sc. Degree in Chemistry with 60.28% and M. Ed with 61.71% of marks and she is

working in an unrecognised Private Teacher Training Institute. The second Respondent herein through newspaper Advertisement dated 19.8.2006

notified totally 163 vacancies and in the subject of Chemistry totally 9 vacancies. In the Notification dated 19.8.2006, it is stated that applications

for appointment to the posts of Senior Lecturer/Lecturer for appointment in the Directorate of Teacher Education Research and Training/District

Institute of Education Training are called for and selection will be made on the basis of ranks acquired in the written competitive examination and

by following communal reservation. The scale of pay of the Senior Lecturer was fixed at Rs. 8000-275-13500 and for Lecturer Rs. 6500-200-

10500. It is also specifically stated in the Notification that communal reservation policy i.e. 30% for Backward Class, 20% for Most Backward

Class, 18% for Scheduled Caste, 1% for Scheduled Tribe candidates, and 31% Open Competition vacancies, will be followed. The reservation of

vacancies for Women (30%), Orthopaedically handicapped (1%) and Blind (2%) for non-Science subjects and languages will be followed. It is

also stated in the Notification that the qualification for Senior Lecturers is that the candidates should possess M.A. / M. Sc., with at least 50%

marks and M. Ed with 55% marks along with Teaching Experience of at least 5 years in any recognised Teacher Training Institute /DIET in the

State. They should also have five years of experience in Chemistry subject in handling Standards 6 to 8 in a recognised school. The age of the

candidates should not be 57 years as on 1.7.2006. Filled up applications were directed to be submitted in the office of the Chief Educational

Officers on or before 1.9.2006. The written examination was ordered to be conducted on 8.10.2006 in all the 30 District Headquarters and for

Senior Lecturers on 15.10.2006 in Chennai only.

According to the Petitioner, the Petitioner applied for the post of Senior Lecturer in Chemistry and out of 9 posts, 2 posts were reserved for

Backward Class community, of which one is for Backward Class General and one for Backward Class Women. The examination was conducted

for Senior Lecturer post on 15.10.2006. The Petitioner appeared for the examination and she was awarded 50 marks. According to the

Petitioner, she is having 11 years of teaching experience in the Teacher Training Institute and she is also having more than five years of teaching

experience in the Elementary School and in handling Standards 6 to 8 is a recognised School.

The grievance of the Petitioner is that even though there is a vacancy available for the Senior Lecturer post in Chemistry under the Backward

Class Women category, the Petitioner was not called for Certificate verification and she was not selected. The Petitioner submitted a

representation before the second Respondent and requested to call the Petitioner for Certificate verification. The said representation having not

been considered, the Petitioner filed W.P. No. 14851 of 2009 before this Court and a direction was issued on 19.11.2009 to consider the

representation dated 16.1.2009, within a period of six weeks. Thereafter, the second Respondent passed an order on 7.7.2010 stating that for the

163 vacancies, for Backward Class Women category, 51 marks was fixed as cut off mark and one N. Kalarani was called for Certificate

verification as last candidate. The Petitioner having secured 50 marks, she was not entitled to be called for Certificate verification and therefore, the

Petitioner''s request was rejected. The said order is challenged on the ground that the Notification having not prescribed any minimum cut-off

marks, the second Respondent is not justified in saying that it has fixed cut-off marks of 51 for Backward Class Women and when vacancies are

available, the Petitioner ought to have been called for Certificate verification and if she is found qualified, she ought to have been appointed.

A counter affidavit is filed by the Respondents by stating that after filling up the posts, only three vacancies were remaining for consideration i.e.

Most Backward Class Women-1, General Women - 1, Backward Class Women - 1. All the three candidates, who were called for the second

round of Certificate verification were found ineligible for various reasons. One Kalarani, who secured 51 marks in the written examination, was

junior most of the three candidates referred. The said Kalarani, even though being Backward Class Women candidate, did not possess any

teaching experience and therefore, she was found not eligible. It is also stated in the counter affidavit that 51 marks was fixed as cut-off mark for

the Backward Women candidates and the Petitioner having secured only 50 marks, the Petitioner is not entitled to be considered for selection.

Heard the learned Counsel for the Petitioner and the learned Government Advocate for the Respondents.

The point for consideration in this writ petition is as to whether the Petitioner is justified in making a request to be called for Certificate

verification, having secured 50 marks in the written examination, based on her claim of possessing teaching experience, both in the Teacher

Training Institute and in a recognised school.

The only reason stated in the counter affidavit is that the second Respondent has fixed the cut off marks as 51 and the Petitioner having secured

50 marks, she is not entitled to be called for Certificate verification. The Notification issued by the second Respondent is the rule of selection,

wherein it is stated that the selection for the post of Senior Lecturer will be made based on the marks secured in the written Competitive

Examination and also by following communal reservation. Admittedly, no minimum marks were prescribed for calling a candidate for Certificate

verification, in the Notification. In the Notification, it is stated that based on the written test marks, the candidates will be selected. The Notification

having not prescribed any cut off mark or minimum mark to call for the candidates for Certificate verification, and having regard to the fact that the

vacancies available in the Backward Class Women Category as admitted in the counter affidavit and the last candidate whose certificate was

verified viz., Kalarani though having secured 51 marks not possessing teaching experience, the Petitioner who is the next candidate, even according

to the counter affidavit, should have been called for Certificate verification in terms of the judgment of the Supreme Court in Hemani Malhotra Vs.

High Court of Delhi, . In paragraphs 14 to 16 of the said judgment, the Supreme Court considered the similar issue stating that as no minimum cut-

off mark for calling a candidate for viva-voce was prescribed in the Notification, fixing a cut-off mark for calling a candidate to attend viva-voce

test during the middle of selection, is illegal. Paragraphs 14 to 16 read as follows:

It is an admitted position that at the beginning of the selection process, no minimum cut-off marks for viva voce were prescribed for Delhi

Higher Judicial Service Examination, 2006. The question, therefore, which arises for consideration of the Court is whether introduction of the

requirement of minimum marks for interview, after the entire selection process was completed would amount to changing the rules of the game after

the game was played. This Court notices that in K. Manjusree v. State of A.P. the question posed for consideration of this Court in the instant

petitions was considered and answered in the following terms: (SCC pp. 526-27, para 33) ""33. The Resolution dated 30-11-2004 merely

adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending the

minimum marks prescribed for written examination, to interviews, in the selection process is impermissible. We may clarify that prescription of

minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the

minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not

prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, the Selection

Committee may also prescribe the minimum marks, as stated above. But if the Selection Committee wants to prescribe minimum marks for

interview, it should do so before the commencement of selection process. If the Selection Committee prescribed minimum marks only for the

written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add

an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the

criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the

interview

From the proposition of law laid down by this Court in the abovementioned case it is evident that previous procedure was not to have any

minimum marks for viva voce. Therefore, prescribing minimum marks for viva voce was not permissible at all after the written test was conducted.

There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written

examination and viva voce, but if minimum marks are not prescribed for viva voce before the commencement of selection process, the authority

concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate

should also secure minimum marks in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the Respondent

at viva voce test was illegal.

The contention raised by the learned Counsel for the Respondent that the decision rendered in K. Manjusree did not notice the decisions in

Ashok Kumar Yadav v. State of Haryana as well as in K.H. Siraj v. High Court of Kerala and, therefore, should be regarded either as decision

per incuriam or should be referred to a larger Bench for reconsideration, cannot be accepted. What is laid down in the decisions relied upon by the

learned Counsel for the Respondent is that it is always open to the authority making the rules regulating the selection to prescribe the minimum

marks both for written examination and interview. The question whether introduction of the requirement of minimum marks for interview after the

entire selection process was completed was valid or not, never fell for consideration of this Court in the decisions referred to by the learned

Counsel for the Respondent. While deciding the case of K. Manjusree the Court noticed the decisions in: (1) N. Paul Vasantha kumar, J.P.K.

Ramachandra Iyer v. Union of India; (2) Umesh Chandra Shukla v. Union of India; and (3) Durgacharan Misra v. State of Orissa, and has

thereafter laid down the proposition of law which is quoted above. On the facts and in the circumstances of the case this Court is of the opinion

that the decision rendered by this Court in K. Manjusree can neither be regarded as judgment per incuriam nor good case is made out by the

Respondent for referring the matter to the larger Bench for reconsidering the said decision.

Applying the above judgment of the Supreme Court and having regard to the admitted position that there is a vacancy available for Senior

Lecturer post in Chemistry for Backward Class Women category; and the Petitioner being the next candidate available, and the claim made by the

Petitioner that she is having teaching experience both in the Teacher Training Institute as well as in the recognised school, the second Respondent is

bound to invite the Petitioner for Certificate verification and find out as to whether the Petitioner is having teaching experience or not. If the

Petitioner possesses the required teaching experience as prescribed in the Notification, the Petitioner is bound to be selected and appointed as

Senior Lecturer. The second Respondent is directed to call the Petitioner for Certificate verification and consider the claim of the Petitioner in the

light of the Notification issued, within a period of four weeks from the date of receipt of a copy of this order.

The writ petition is disposed of with the above observations. No costs. Consequently, connected miscellaneous petition is closed.