The appellant's selection results were withheld because his B.Com degree, obtained through the Open University system after a foundation course without passing the 11th or 12th standard public examination, was not accepted. The Division Bench upheld the Government's later orders and clarification and dismissed the writ appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 19 .07.2019
CORAM:
THE HON'BLE MR.JUSTICE S.MANIKUMAR
AND THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD
WA.No.213 of 2018
Mohamed Hasan Refayee
...Appellant/Petitioner
Vs
Rep. by its Chairman, Commercial Tax Annex Building,
No.1, Greams Road, Chennai-600 006.
Rep. by its Secretary, Department of Personnel and Administrative Reforms (P&AR) Fort St.George, Chennai - 600 009.
...Respondents
Prayer:
Writ Appeal is filed under Clause 15 of the Letters Patent, against the order made in W.P.No.7120 of 2011, dated 07.09.2017.
W.P.No.7120/2011:
Writ Petition filed under Article 226 of the Constitution of India praying this Court to call for the records of the 2nd respondent in connection with the letter bearing Letter No.33448/M/2010-4 Personnel and Administrative Reforms (M) Department dated 03.12.2010 and quash the same and direct the 1st respondent to declare the result of the petitioner in respect of his participation in the Combined Subordinate Services Examination -1 and in the event of the petitioner having been selected direct the 2nd respondent to issue an order of appointment with the consequent benefits.
For Appellant : Mr.V.Prakash, Sr.Counsel for Mr.K.Sudalai Kannu
For Respondents: Mr. P.S.Sivashanmugasundaram
Special Govt. Pleader for R2 Mr.M.Devendran, SC for TNPSC for R1
O R D E R
SUBRAMONIUM PRASAD,J
The present Writ Appeal is directed against the order dated 07.09.2017, passed by a learned Single Judge of this Court in WP.No.7120 of 2011.
"3. Since the Writ petition was filed to declare the results, the learned counsel for the petitioner was directed to serve notice to the learned counsel for the first respondent. Today, the learned counsel for the first respondent produced a communication issued by the first respondent to the second respondent dated 12.07.2010 and requested to clarify as to whether the qualification possessed by the candidate, namely, preFoundation Course of Madurai Kamaraj University - Open University be recognized as equivalent to the 10th standard SSLC examinations of the Tamil Nadu Government for the purpose of entry in to service in the State and whether the two years Foundation Course of the Madurai Kamaraj University - Open University be recognized as
equivalent to Higher Secondary course of the Tamil Nadu Government for the purpose of entry in public services in the State and whether the persons possessed of the said qualifications may be considered as satisfying the requisites of the Government Order in G.O.Ms.No.107, Personnel and Administrative Reforms (M) Department, dated 18.08.2009, in view of the orders issued in G.O.Ms.No.528, dated 18.05.1985.
"4. In the light of the clarification sought for by the first respondent from the second respondent as early as on 12.07.2010, the second respondent is directed to consider the said issues and give the clarification as sought for by the first respondent with in a period of four weeks from the date of receipt of a copy of this order and on receipt of the clarifications from the second respondent, the first respondent is directed to decide accordingly. The second respondent is also directed to communicate the copy of the clarification to be issued to the petitioner while communicating the same to the first respondent."
foundation/foundation course is valid enough to earn a degree through the Open University System for the purpose of public employment or not. The learned Single Judge further held that, since the foundation course undergone by the petitioner without undergoing the pre foundation course in the facts of the case, itself is not valid, his subsequent degree obtained through the Open University System from Madurai Kamaraj University, cannot be held to be valid for any purpose.
hall ticket for the written examination. He cleared the written examination and was called for an oral test on 04.08.2009. Certificate verification was conducted. The petitioner had discontinued his schooling in 10th standard. He had not completed his 11th standard under the old pattern examination. After discontinuing his studies, he has passed two year foundation course conducted by the Madurai Kamaraj University. After completing two year foundation course, he joined the degree course through correspondence, conducted by the Madurai Kamaraj University and obtained his B.Com degree.
FOR PRE-DEGREE COURSE
Detailed Report (Prospectus) - 1983
Madurai Kamaraj University is granting pre-degree courses under the Open University System.
This system of this course is of three stages:
(i) Introductory Course - 6 months
(ii) Pre-foundation Course - 1 year
(iii) Foundation Course - 2 years
Note: The old System of SSLC; the 2 years old PreUniversity
Course is equivalent to the new +2 second year course. The Foundation Course is equivalent to the new pattern of Xth Std and the S.S.L.C.
Any person all over India whoever knows Tamil and who are the citizens of India are eligible to apply for this course.
(i) Foundation Course: No. Educational Qualification needed. On application of this Course a person must be of 14 years of age/ above as 1st October. Candidates must obtained and send a Age Certificate attested by a person
who is in the cadre of not below the rank of Deputy Tahsildar of Revenue Department/ to get the age Certificate from an authorized Notary Public. Persons whosoever have limited educational qualification can send a transfer Certificate cr Record Sheet which will be sufficient.
(ii) Basic Requirement: Candidates whosoever has passed 8th Std/ Pre-Foundation Course.
For 1st Year Foundation Programme: 10th Std pass/ Persons whosoever has passed the Pre-Foundation
For 2nd Year Foundation Programme: Candidates whosoever has passed 11th S.S.L.C from Chennai, Madurai Kamaraj University Matriculation/Regular Pre- Foundation Course or 1st Year Foundation Course pass. Note:
(a) Candidates whosoever was dropped from S.S.L.C. before 1978 and cleared the failed papers alone and have completed their S.S.L.C or the candidates whosoever have obtained compartmental pass would be eligible to join from the 2nd year foundation course.
(b) The candidates whoever failed in the old 11th Std (Old S.S.L.C) and have wrote and cleared the new pattern 10th Std S.S.L.C"
G.O.Ms.No.528, dated 18.05.1985, reads as under:-
GOVERNMENT OF TAMIL NADU
ABSTRACT
Public Services Recognition qualification Pre Foundation and Foundation Courses of Madurai Kamaraj University Equivalence orders issued.
PERSONNEL & ADMINISTRATIVE REFORMS (P & AR) DEPARTMENT G.O.Ms.No.528
Dated:18.05.1985 Read:
The Syndicate of the University of Madras, as its meeting held on 27.02.1984, resolved that the Foundation Course of the Open University System of Madurai Kamaraj University be recognised as equivalent to pass in the +2 of the 10 + 2 pattern for the purpose of admission to the degree course of the University of Madras subject to usual conditions. The Board of Higher Secondary Education has considered that there should be no objection to recognise the Pre-Foundation Course examination which corresponds to the 10th standard public examination conducted by the Director of Government Examination as an entrance qualification for admission to the first year Higher Secondary Course, i.e., Standard II.
As regards Foundation Course, the board has resolved to recognise this course equivalent to the higher secondary course in view of the fact that the Madras University has already recognised the course as an entrance qualification for admission to the degree course. The Tamil Nadu Public Service Commission, Madras which was consulted in the matter has expressed a view, after taking into account the opinion of the University of Madras and Director of School Education that a pass in the Foundation course of the Madurai Kamaraj University Open University be recognised as equivalent to a pass in the Higher Secondary Course of the Tamil Nadu Government.
The Commission is also of the view that a pass in the Foundation Course of the Madras Kamaraj University # Open University may be recognised as equivalent to a pass in the year S.S.L.C. Public examination of Tamil Nadu Government for purpose of employment into public service in the State.
(BY ORDER OF THE GOVERNOR)
J.ANJANIDAYANAND
SPECIAL COMMISSIONER & SECRETARY TO GOVERNMENT"
"1.(a) Candidates who have secured a minimum of 35% of marks in each subject in one or more sittings under the compartmental system in the Secondary School Leaving Certificate Examination (S.S.L.C.) or Oriental School Leaving Certificate Examination (O.S.L.C.) or Anglo Indian School Leaving Certificate Examination (A.I.S.L.C.) or the matriculation examination conducted in the Tamil nadu at the end of the X Standard any other examination recognised by the department as equivalent thereto are eligible for admission to the First Year of the Higher Secondary Courses.
2.(b) Candidates who have been declared eligible for University Courses or have secured a minimum of 35% of marks in each subject in one or more sittings under the compartmental system in the Secondary School Leaving Certificate (S.S.L.C.) or the Oriental School Leaving Certificate Examination (O.S.L.C.) or Anglo Indian School Leaving Certificate Examination (A.I.S.L.C.) or the matriculation examination conducted in the Tamil nadu at the end of the XI Standard or any other examination recognised as equivalent thereto by the department shall be admitted into Second year of the Higher Secondary Course."
Qualification under Open Equivalent (for academic University System of purpose) to Madurai Kamaraj University Pass in Pre-Foundation Pass in SSLC ( X Standard Course (with 35% or more in (Therefore can be admitted each subject) in I year Higher Secondary Class) Pass in Foundation Course Pass in I year of Higher First year Secondary Course (Therefore, can be admitted in II year Higher Secondary Class)"
(authored by one of us namely Hon'ble Mr.Justice S.Manikumar) in WP.No.24636 of 2004, wherein after extracting the above said two Government orders, it has been observed as under:-
"14. A reading of the two Government Orders, makes it clear that a pass in Pre-Foundation Course with 35% or more in each subject is treated as pass in SSLC old pattern and a pass in Foundation Course is equivalent to pass in the Higher Secondary course. Admittedly, the petitioner had undergone one year PreFoundation course conducted by the Director of Distance Education, between July 2001 to April 2002 with following subjects, viz., Tamil, English, History, Economics and Politics. A course completion certificate dated 11.10.2002 has also been issued by the Director of the said University. In the examination conducted by the Directorate of Distance Education, the petitioner had appeared in all the subjects and passed out in three subjects and cleared the arrears in April 2003. As per G.O.Ms.No.1110, Education (HS 2) Department, dated 17.09.1985, a pass in the PreFoundation Course, is equivalent to pass in SSLC Standard and those, who had successfully completed the Pre-Foundation Course, can be admitted in the first year Higher Secondary Course.
in Eighth Standard or completion of Introductory Course/10th Standard fail. As per Clause 2.1.1 (5) of the Prospectus, those who have completed both one year Introductory Course and Pre-Foundation Course would be issued a certificate. An examing body such as the Directorate of Examination or University or any other competent authority authorised by law, issues a certificate only when the student undergoes a course, programme of study recognised by the Board of examination or concerned University or any other competent body authorised to issue a certificate/diploma/degree, so as to enable a student to pursue higher studies or enable the candidate to acquire a job suitable for that educational qualification. Therefore, once the University imparts education, conducts an examination and issues a Course Completion Certificate, the same has to be accepted by the Educational Institutions/University enabling the certificate/diploma/degree holder to pursue his/her higher studies and that the Government/Public Sector undertaking, Board etc., have to recognise the said Certificates, Degree for the purpose of entry in Public Service in this State. In the case on hand, the petitioner has completed the Pre-Foundation Course conducted by the Directorate of Distance Education of Madurai Kamaraj University and a Course Completion Certificate has also been issued. As stated supra, unless the student completes the Introductory Course he cannot pursue the Pre-Foundation Course which is recognised as equivalent to the 10 years SSLC for the purpose of entering into the public services of the State of Tamil Nadu.
Standard and that the application was not made within three years. In Paragraph 6 of the judgment, the Court held as follows:
"We hasten to state that the very purport of extending a helping hand to a destitute on the death of her husband by way of compassionate appointment would get defeated if such claims are turned down on such hypher technical ground."
GOVERNMENT OF TAMIL NADU
ABSTRACT
Public Services - Equivalence of Educational Qualifications - Post Graduation - Degrees - Diploma obtained through Open Universities after completion + 2 - Appointment Public Services orders Issued - Reg.
Personnel and Administrative Reforms (M) Department G.O. (MS). No.107 Dated: 18.8.2009 Avani Thiruvalluvar Andu 2044 Read:
i) G.O.(Ms).No. 180 P & A R (R) Department Dated: 11.9.2000
ii) From Chief General Manager, BSNL, T.Nadu circle Letter No.RET/301-6/ 2004 Dated: 17.7.2004
iiih Secretary, T.N.P.S.C., D.O. Letter 1745 / RNT - F1 / 2007 Dated:5.4.2007 iv) D.O. Letter No.5280 / RNT - F1-2007, Dated: 27.9.2007 ORDER:
In the G.O. 1st read above, orders were issued recognising
the Diploma, Degree and Post Graduation course offered by Open Universities on par with the Diploma, Degree and Post Graduation Courses conducted by Regular Stream for the pu'pose appointment in public services.
In the letter in reference 2nd cited Chief General Manager, BSNL, Tamil Nadu circle has sought a clarification as to whether, in cases where a pass in Higher Secondary Examination is prescribed as minimum Educational Qualification, persons without possessing Higher Secondary (+2) qualification and obtain degree / in Bachelor of Science, and Bachelor of Arts etc., may be considered on par with those who possess Higher Secondary education.
Secretary, Tamil Nadu Public*Service Commission, has been requested to get the recommendation of Equivalence Committee on the above proposal. The Equivalence committee has recommended that persons having obtained degree in B.Sc., B.A. etc., without possession of Higher Secondary +2) shall not be considered on par with the persons having passed +2 (Higher Secondary course) for the purpose of appointment in Public Services or for promotion in Public services.
The Equivalence Committee once again reiterated its stand after examining the proposal resubmitted by Government.
The above recommendations were carefully examined by Government and accordingly Government accepted the recommendations of Equivalence Committee and issue orders, that the Diplomas /Degrees/ Post Graduation after possession of Xth std., Higher Secondary (+2) obtained through Open Universities alone considered for appointment/ promotion in Public Services."
"1.G.O.(Ms.) No.528, Personnel and Administrative Reforms (Per.R) Department, dated 18.05.1985.
In the Government Orders first and second read above, orders have been issued that the Pre-foundation Course and the two years Foundation Course of the Madurai Kamaraj University – Open University be recognized as equivalent to 10 years of SSLC and Higher Secondary Course (+2) of the Tamil Nadu Government respectively, for the purpose of entry into Public Services in this State.
'A degree awarded by the Open Universities after passing Pre-Foundation Course and two year Foundation Course through Open University cannot be recognized as degree as per University Grants Commission norms for the
purpose of employment / promotion in Public Services, since such Pre-foundation Course and two year Foundation Course are not contemplated in the University Grants Commission Regulations.
Therefore, those who obtained a degree under Open University System after passing the Pre-Foundation Course and two year Foundation Curse without passing G.O.(Ms)No.107, Personnel and Administrative Reforms (M) Department, dated 18.08.2009, which is in consonance with the Orders of Supreme Court of India'.
The above clarification was followed from the date of issue of orders in the Government Order fifth read above.
"59. The provisions of the UGC Act are not in conflict with the provisions of the Open University Act. It is beyond any cavil of doubt that the UGC Act shall prevail over the Open University Act. It has, however, been argued that the Open University Act is a later Act. But we have noticed hereinbefore that the nodal Ministry knew of the provisions of both the Acts. The Regulations were framed almost at the same time after passing of the Open University Act. The Regulations were framed at a later point of time. Indisputably, the Regulations embrace within its fold the matters covered under the Open University Act also. "58. The only point which survives for our consideration is as to whether the purported post facto approval granted to the appellant University of programmes offered through distance modes is valid. DEC may be an authority under the Act, but its orders ordinarily would only have a prospective effect. It having accepted in its letter dated 5-5-2004 that the appellant University had no jurisdiction to confer such degrees, in our opinion, could not have validated an invalid act. The degrees become invalidated in terms of the provisions of the UGC Act. When mandatory requirements have been violated in terms of the provisions of one Act, an authority under another Act could not have validated the same and that too with a retrospective effect.
statutes operate in the same field. The UGC Act, as noticed hereinbefore, operates in different field. It was enacted so as to make provision for the coordination and determination of standards in universities and for that purpose, to establish a University Grants Commission. Its directions being binding on IGNOU, sub-section (2) of Section 5 of the Open University Act would not make the legal position otherwise."
Thus the Hon'ble Supreme Court held that the decision of UGC will prevail over the Open University Act.
The Hon’ble Division Bench of the High Court of Madras, during the hearing of Writ Appeal No.213 of 2018 in Writ Petition No.7120 of 2011 on 31.01.2018 has made the following observation:-
“4. It appears that as per G.O.(Ms.)No.528, Personnel and Administrative Reforms (Per.R) Department, dated 18.05.1985, the two year foundation course is equivalent to +2. There is no doubt about the equivalence of the foundation course to +2 is concerned, but, however, to become eligible to be admitted to the +2 course / foundation course, whether passing of 11th standard is also very much essential or not is to be clarified by the Department. In this regard, the learned Special Government Pleader is directed to seek instructions.”
(i) for 1st year — pass in 10th std (X std) or
pass in Pre-Foundation Course.
(ii) for 2nd year - pass in 11 year SSLC (old scheme)
Matric; fail in PUC or pass in 1st
year
Foundation Course.
It may therefore be clarified that to become eligible to be admitted to the Foundation Course, passing of 11th standard Government examination is very much essential."
"14. From a perusal of Clause 2 of the 1985 Regulations and the ratio decided by the Supreme Court as quoted hereinbefore, it is manifest that for the purpose of obtaining a Post Graduate Degree a candidate has to satisfy and comply the mandatory requirements provided therein. According to the rule, no candidate shall be eligible for award of first degree unless he has successfully completed 12 years schooling. Similarly, no student shall be eligible to seek admission to the Master#s course in any faculty, who has not successfully pursued the first degree course of three years duration.
University without completing 12 years schooling can claim, as a matter of right, promotion to the higher post, ignoring the service conditions prescribed under the service rules.
#11. The unequivocal purpose and obvious intention of the framers of the Constitution in enacting Article 229 is that in the matter of appointment of officers and servants of a High Court it is the Chief Justice or his nominee who is to be the supreme authority and there can be no interference by the executive except to the limited extent that is provided in the article. This is essentially to secure and maintain the independence of the High Courts. The anxiety of the Constitution-makers to achieve that object is fully shown by putting the administrative expenses of a High Court including all salaries, allowances and pension payable to or in respect of officers and servants of the Court at the same level as the salaries and allowances of the Judges of the High Court nor can the amount of any expenditure so charged be varied even by the Legislature. Clause (1), read with clause (2) of Article 229 conferred exclusive power not only in the matter of appointments but also with regard to prescribing the conditions of service of officers and servants of a High Court by Rules on the Chief Justice of the Court. This is subject to any legislation by the State Legislature but only in respect of conditions of service. In the matter of appointments even the Legislature cannot abridge or modify the powers conferred on the Chief Justice under clause (1). The approval of the Governor, as noticed in the matter of rules, is confined only to such rules as relate to salaries, allowances, leave or pension. All other rules in respect of conditions of service do not require his approval. Even under the Government of India Act the power to make rules relating to the conditions
of service of the staff of the High Court vested in the Chief Justice of the Court under Section 242(4), read with Section 241 of the Government of India Act, 1935. By way of contrast reference may be made to Article 148 relating to the Comptroller and Auditor General of India. Clause (5) provides: #Subject to the provisions of this Constitution and of any law made by Parliament the conditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the Comptroller and Auditor General shall be such as may be prescribed by rules made by the President after consultation with the Comptroller and Auditor General.#
"28. In the instant case, though it is the plea of the Petitioners before this Court that during the service after obtaining permission from the Department joined in Pre-Foundation Course conducted by Annamalai University and Tamil University recognised by UGC and completed as early as before May, 2017, the 2nd Respondent / Principal District Judge, Thiruppur had categorically averred in the counter that none of the Petitioners had secured prior permission from the Head of the Department for joining the Pre-Foundation Course in Annamalai University and Tamil University. That apart, in terms of the ingredients of G.O.No.328, Personnel and Administrative Reforms (Per&A) Department dated 09.04.1983, the Government Servant, who joins the Correspondence Course conducted by various Universities should obtain prior permission of the Head of the Department concerned.
Court, Madras and Another reported in (2011) 2 MLJ 785 at Special Page 791, wherein at Paragraph Nos.18 and 19, it is observed as under:
'As discussed above, the rule framed by the High Court inter alia clearly lays down the qualification for the purpose of promotion from Categories 7, 8 and 9 to Category 6. It is clearly mentioned that for the purpose of promotion, a person must possess and hold the B.A./B.Sc./B.Com or other Bachelors degree of the Madras University or of a recognized University. The rule does not recognize B.A. or B.B.A. degree from an Open University obtained by a candidate without having the basic +2 qualification. The condition contained in the High Court Service Rules, therefore, cannot in any way be superseded by other law not applicable to the employees of the High Court.
'There is no dispute with regard to the entry of the petitioner into service, his participation and selection and that the petitioner has been ranked as 7th position in the vacancies of 7 earmarked for departmental quota out of the 36 total vacancies and that 20% of the 36 vacancies is meant for in-service candidates. The communication dated 08.08.2013 is very clear that G.O.Ms.no.528, Personnel and Administrative Reforms (Per.R) Department, dated 18.05.1985 referred to by the petitioner has been considered and it has been stated that G.O.Ms.No.528 has been issued following the procedure laid down in General Rule 19 as it stood prior to 18.08.1994, the matter need not again be placed before the Equivalence Committee. At the most, persons who have studied prior to that date alone can be considered as equivalent and not thereafter. It appears that it is an one time measure and not on permanent basis. In any event, it has been clarified that pre-foundation and foundation courses were considered as not equivalent to SSLC/HSC.
"5.1. The respondent obtained her degree in B.A under Open University System. Thereafter she joined B.Ed degree as a regular course and obtained B.Ed. Then, she obtained her M.A. Degree. Thereafter she realised that unless and until she passes the plus 2 examination she will not be eligible for appointment to the post of Post Graduate Assistant Teacher. Accordingly, with that new wisdom dawned on her, she completed her plus 2 course # after securing B.Ed degree, B.A. Degree and M.A.Degree. Now, the question for consideration is the completion of plus 2 course after obtaining the three degrees can be termed as in consonance with the G.O. Passed in G.O.(Ms).No.107 Personnel & Administrative Reforms (M) Department, dated 18.8.2009. The second question, though not considered by the learned single Judge, is that inasmuch as the respondent did undertake entrance test before joining the first degree course, the said degree be considered as a valid one in terms of regulation 2(1) of the U.G.C. Regulations 1985 dated 25.11.1985.
5.2. Coming to the first issue, we would like to extract the relevant passage of the Government Order passed in G.O.(Ms).No.107 Personnel & Administrative Reforms (M) Department, dated 18.8.2009, which reads as under:
#The above recommendations were carefully examined by the Government and accordingly Government accepted the recommendations of Equivalence Committee and issue orders, that the Diplomas/Degrees/ Post Graduation after possession of Xth Std., Higher Secondary (+2) obtained through Open Universities alone considered for appointment/ promotion in Public Services.''
On a reading of the above said paragraph, it is clear that a diploma/ degree/post graduation can only be considered for appointment in public services after a candidate possesses Xth Standard as well as Higher Secondary (+ 2). This Government Order passed has been upheld by the Division Bench of this Court in W.P.No.18729 of 2010 dated 10.2.2011.
5.3. Even otherwise, the binding nature of the said Government Order is not in dispute. The respondent has not challenged the said Government Order. As the appellants are the competent authorities to fix the qualification, that too, pertaining to the teachers of Higher Secondary schools, there is no difficulty in coming to the conclusion that the conditions prescribed are mandatory. In other words, unless and until a candidate satisfy the requirement as envisaged in G.O.(Ms).No.107 Personnel & Administrative Reforms (M) Department, dated 18.8.2009, he or she cannot be considered for the post.
5.4. In the case on hand, admittedly, at the time of completing the degree, the respondent did not complete the plus 2 course. That is exactly the reason why she thereafter completed the plus 2 course. This fact has also been observed by the learned single Judge. While it is absolutely open to the respondent to do the same, the question for consideration is, as to whether the said action would cure the defect. In our respectful submission, the said attempt cannot be substitute to the Government Order passed in G.O.(Ms). No.107 Personnel & Administrative Reforms (M) Department, dated 18.8.2009. Any other interpretation would amount to re-writing the provisions of the said Government Order, which is impermissible in law, without there being a challenge.
5.5. Now, coming to the Regulations of the Unvieristy Grants Commission with reference to admission of a student to a Degree, the said issue is irrelevant insofar as the insistence on the part of
the appellants to comply with the Government Order passed in G.O.(Ms).No.107 Personnel & Administrative Reforms (M) Department, dated 18.8.2009. The appointment is to the post of Post Graduate Assistant Teacher in the Higher Secondary School. When the appellants thought it fit to make sure that only those who have completed plus 2 course and thereafter the degree course be eligible to be considered for a particular post of a teacher, then the wisdom and rationale behind the same cannot be questioned. As discussed above, the rationale has not been questioned before us and in any case, we do not find any arbitrariness in the Government Order, which has already been upheld. 5.7. Coming to the other decisions relied on by the respondent as considered by the learned single Judge, we are of the view that they do not have any application to the case on hand. In Writ Appeal No.1064 of 2012 dated 6.11.2013, the Division Bench of this Court merely directed the authorities to reconsider the matter. On a perusal of the Order passed by the learned single judge, it is seen that the ratio laid down in W.A.No.1064 of 2012 dated 6.11.2013 (Joseph Vs. Irudayaraj Vs. Joint Director of School Education) has been wrongly relied upon. The direction was specific to the effect that the entire issue will have to be considered in the light of paragraph No.4 of G.O.(Ms).No.107 Personnel & Administrative Reforms (M) Department, dated 18.8.2009. We have already discussed the scope and ambit of paragraph No.4 of the G.O. Therefore, we are of the view that the said decision does not throw any light on the issue raised before us, that too, in favour of the respondent. Similarly, we are of the view that the decision dated 21.4.2014 relied upon by the respondent as rendered by the single Judge of this Court in W.P.No.13054 of 2010 etc., batch does not have any application to the case before us in view of the discussion made above, wherein, we have already held that fixing qualification is different from recognising a degree. 5.10. In the case on hand, the respondent has written the examination as a private candidate without undergoing Higher Secondary course of a duration of two years. It is the prime duty of the appellants to see to it that the quality of education is maintained for the purpose of imparting the same to the students. Certainly, there is a difference between a candidate, who had undergone a regular course as against the other who completes it by writing the examination privately. Therefore, even on that score, we do not
find anything arbitrary in the decision of the appellants in rejecting the candidature of the respondent."
"14. The other interesting argument made is that such regulations should not be given retrospective effect so as to prejudicially affect the interests of any person to whom such regulation may be applicable. In order to appreciate this contention, it is necessary to distinguish between an existing right and a vested right. This distinction was made with great felicity in Trimbak Damodhar Rajpurkar v. Assaram Hiraman Patil [AIR 1966 SC 1758 : 1962 Supp (1) SCR 700] . In that case a question arose as to whether an amendment made to Section 5 of the Bombay Tenancy and
Agricultural Lands Amendment Act could be said to be retrospective because its operation took within its sweep existing rights. A Bench of five Hon'ble Judges of this Court held that Section 5 had no retrospective operation.
“8. Besides, it is necessary to bear in mind that the right of the appellant to eject the respondents would arise only on the termination of the tenancy, and in the present case it would have been available to him on 31-3-1953 if the statutory provision had not in the meanwhile extended the life of the tenancy. It is true that the appellant gave notice to the respondents on 11-3-1952 as he was then no doubt entitled to do; but his right as a landlord to obtain possession did not accrue merely on the giving of the notice, it accrued in his favour on the date when the lease expired. It is only after the period specified in the notice is over and the tenancy has in fact expired that the landlord gets a right to eject the tenant and obtain possession of the land. Considered from this point of view, before the right accrued to the appellant to eject the respondents amending Act 33 of 1952 stepped in and deprived him of that right by requiring him to comply with the statutory requirement as to a valid notice which has to be given for ejecting tenants.
‘… If an Act provides that as at a past date the law shall be taken to have been that which it was not, that Act I understand to be retrospective. That is not this case. The question here is whether a certain provision as to the contents of leases is addressed to the case of all leases or only of some, namely, leases executed after the passing of the Act. The question is as to the ambit and scope of the Act, and not as to the date as from which the new law, as enacted by the Act, is to be taken to have been the law.’
These observations were made in dealing with the question as to the retrospective construction of
Section 3 of the Conveyancing and Law of Property Act, 1892 (55 and 56 Vict. c. 13). In substance Section 3 provided that in all leases containing a covenant, condition or agreement against assigning, underletting, or parting with the possession, or disposing of the land or property leased without licence or consent, such covenant, condition or agreement shall, unless the lease contains an expressed provision to the contrary, be deemed to be subject to a proviso to the effect that no fine or sum of money in the nature of a fine shall be payable for or in respect of such licence or consent. It was held that the provisions of the said section applied to all leases whether executed before or after the commencement of the Act; and, according to Buckley, L.J., this construction did not make the Act retrospective in operation; it merely affected in future existing rights under all leases whether executed before or after the date of the Act. The position in regard to the operation of Section 5(1) of the amending Act with which we are concerned appears to us to be substantially similar.
‘4. … A notice under Section 34(1) is merely a declaration to the tenant of the intention of the landlord to terminate the tenancy; but it is always open to the landlord not to carry out his intention. Therefore, for the application of the restriction under sub-section 2(a) on the right of the landlord to terminate the tenancy, the crucial date is not the date of notice but the date on which the right to
terminate matures; that is, the date on which the tenancy stands terminated.’”
s/d-
Assistant Registrar(CS VIII)
True Copy
Sub-Assistant Registrar
Pkn.
To
Tamil Nadu Public Service Commission, Commercial Tax Annex Building, No.1, Greams Road, Chennai-600 006.
+1 CC to Mr.M. Devendran, Advocate sr 61666.
WA.No.213 of 2018
PPA(CO) SP(22/08/2019)
2 issues framed by the court
Whether the letter dated 03.12.2010 clarifying G.O.(Ms) No.107 dated 18.08.2009 deserves to be struck down.
Whether a candidate who obtained a degree through the Open University system after a foundation course, without passing the 11th/12th standard public examination, is eligible for appointment to public
Colour shows how this judgement treated each authority
S.Raj Kumar Vs. The Chairman, TNEBReferred¶90
S.Raj Kumar Vs. The Chairman, TNEB, WP.No.24636 of 2004
Annamalai University Vs. Secretary to Government, Information and Tourism DepartmentRelied on¶136
(2009) 4 SCC 590, Annamalai University Vs. Secretary to Government, Information and Tourism Department · Who else cites this
judgment dated 10.02.2011 in WP.No.18729 of 2010Referred¶154
P.Sivakumar Vs. The Registrar General, Madras High CourtReferred¶163
WP.No.18984 of 2018, P.Sivakumar Vs. The Registrar General, Madras High Court
The Chairman Vs. V.KanimozhiReferred¶176
Writ Appeal No.805 of 2014, The Chairman Vs. V.Kanimozhi
P.Suseela Vs. University Grants CommissionRelied on¶189
(2015) 8 SCC 129, P.Suseela Vs. University Grants Commission · Who else cites this
2 provisions across 2 enactments
Mohamed Hasan Refayee
The Tamil Nadu Public Service Commission
The Government of Tamil Nadu
S.Manikumar
Subramonium Prasad
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
