Tamil Nadu Computer Sc. B.ED. G.T. Welfare Society vs Higher Sec. Scl. Computer Tech. Assn. & Ors.

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)

JUDGMENT

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.

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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

one time 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

9 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

15 ......................................J. (P. Sathasivam)

......................................J. (Dr. Mukundakam Sharma)

New Delhi, July 9, 2009

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