Allowed

Commissioner and Director of School Education, v. S. Durga Devi

Telangana HC7 Mar 2014WP/10992/2005

Case brief

AI extract

What is this about?

The High Court allowed a writ petition filed by the Government to quash an order of the Administrative Tribunal which had appointed an English-medium student as a School Assistant (English). The Court held that the governing Rules contained a "Note" making the SSC examination medium a mandatory eligibility criterion and therefore the appointment was illegal.

What did the court decide?

Impugned order of the Tribunal quo erat on 16.2.2005 is set aside; applicant declared ineligible for appointment.

Commissioner and Director of School… — Pension and Retirement Benefits | Telangana HC (2014)

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THE HON'BLE SRI JUSTICE K.C.BHANU AND

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THE HON’BLE MRS JUSTICE ANIS

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WRIT PETITION No.10992 OF 2005

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ORDER:- (per Hon’ble Sri Justice K.C.Bhanu)

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This writ petition is filed seeking to issue writ of Certiorari calling for the records pertaining to the order, dated 16.2.2005, in O.A.No.1312 of 2004 on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad (for short, “the Tribunal”) and quash the same.

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2. The petitioners herein are respondents, and the respondent herein is the applicant, in the Original Application. For the sake of convenience, the parties are hereinafter referred to, as they were arrayed before the Tribunal.

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3. The applicant is an unemployee. She studied X to XII classes in Central School in English medium. She passed B.A. with English Literature, and B.Ed. with English Methodology. As such, she is eligible for the post of School Assistant - English. Respondent No.1 issued notification for filling up of various Teacher Posts including School Assistants - English. The qualifications for the said post are Degree with English as main subject and B.Ed. with English Methodology. When the applicant submitted her application to respondent No.2, the same was not received and she was orally informed that she should also have studied Telugu as one of the subjects. As the refusal of the authorities to receive her application and deny the opportunity to appear for D.S.C. – 2003 examination is arbitrary and illegal, she filed the aforementioned Original Application before the Tribunal.

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4. The Tribunal, following the judgment of this Court in District

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Selection Committee and others v. M.Venugopal and others^[1] , disposed of the Original Application declaring that the applicant is entitled to be considered for appointment to the post of School Assistant (English) and directed the respondents to declare the results of the applicant in D.S.C.-2003 Selection. Challenging the same, the present writ petition is filed by the Government.

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5. Learned Government Pleader for Services – I appearing for the petitioners/Government contended that in pursuance of G.O.Ms.No.136, Education (Services – VI - 3) Department, dated 13.11.2003, the applicant has not passed the S.S.C. Examination in the concerned medium or with the concerned language as first language and therefore, she is not eligible to be appointed, but, in pursuance of the direction given by the Tribunal, appointment was given to her in the year 2006; that the applications of other similar candidates have been rejected and it would be a precedent in future; that the ‘Note’ appended to the Rules can have a statutory force unlike the Marginal Notes, which are supplemented by way of executive instructions, but in this case, the ‘Note’ is incorporated under proviso to Article 309 of the Constitution of India by the Governor of State of Andhra Pradesh and therefore, it can be taken as an aid and guidance for the purpose of recruitment of the candidates and hence, he prays to set aside the impugned order.

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6. On the other hand, learned counsel appearing for the respondent/applicant contended that the ‘Note’ is not an enactment and does not have a statutory force and even otherwise, this plea has not been taken in the Original Application; that the applicant was appointed on 19.6.2006; that 6,500 schools have been converted into English Medium Schools and her services are being used in the English Medium Schools; that the contention that the present case would be a precedent in future, cannot be accepted because this

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‘Note’ appended by way of amendment to the Rules, as per G.O.Ms.No.136, dated 13.11.2003, has not been made as a Rule and therefore, the plea taken by the Government cannot be accepted and hence, he prays to dismiss the writ petition. He placed reliance on the judgments, which would be referred to at appropriate time.

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7. In pursuance of the notification issued by the writ petitioners for filling up the vacancies of School Assistants (English) for East Godavari District belonging to Telugu Medium Schools only, the applicant applied for the post of School Assistant (English). When her application has not been received on the ground that she does not possess Telugu as a first language in S.S.C., she filed the aforementioned Original Application and obtained interim order directing the petitioners herein to receive her application and to allow her to participate in the selection process to the post of School Assistant (English) and in pursuance of the interim order, she participated in the selection process and became successful. Ultimately, the Original Application was allowed directing the petitioners herein to declare her result in D.S.C. – 2003 Selection. The Tribunal mainly relied upon the decision reported in District Selection Committee and others v. M.Venugopal and others (1 supra) wherein it is held as under:

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“The statutory rule did not specify as to what is the qualification required to get eligibility for appointment as a Secondary Grade Teacher (Telugu Medium). The word Proficiency is very vague and wide which gives scope for people to have subjective satisfaction without any objectivity. What is proficiency to one man may not be the same to another. The degree of appreciation varies from person to person. Unless there is a specific rule indicating the minimum required qualification, the problem of interpretation may arise. Subsequent to these selections, we were informed that the Government amended Rule.5 making the first language in Telugu as the prescribed qualification.

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A statutory rule cannot be set aside or clarified through departmental instructions. The clarification dated 7.2.1996 issued by the Commissioner and Director of School Education cannot have any force to override the wording used in Rule.5(b) of the Rules. When there is no statutory provision, the imposition of qualification that the candidates should possess Telugu as a first language at High School

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level cannot have any binding effect. In the light of the above rule position, we do not find any ground to interfere with the order of the Tribunal.”

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The decision was rendered prior to insertion of ‘Note (1)’ in pursuance of G.O.Ms.No.136, dated 13.11.2003. The Rules came into force with effect from 13.11.2003 when Gazette Publication was made. Admittedly, the notification for recruitment in this case was issued on 14.11.2003. Therefore, G.O.Ms.No.136, dated 13.11.2003, is applicable to the recruitment process.

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8. The educational qualifications prescribed for the School

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Assistant (English) read as follows:

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“Must possess a Bachelor Degree with English as a main subject OR one of the three equal optional subjects OR a Post Graduate Degree in English and a B.Ed., degree with English as a methodology subject.”

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Note (1) in G.O.Ms.No.136, dated 13.11.2003, reads as follows:

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“The candidates who have passed SSC Examination in the concerned medium or with the concerned Language as First Language are eligible to apply to the posts in the concerned medium and the candidates who have passed the examination of Higher standards in the concerned language/medium are also eligible to apply to the posts in that medium.”

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It is not in dispute that the applicant does not satisfy the above prescribed language condition as her entire studies are in English medium only. If Note (1) of G.O.Ms.No.136, dated 13.11.2003, is applicable to the facts of the case, then, the applicant is not eligible to be appointed for the post she applied. But the question is as to whether the ‘Note’ appended to the Rules can be taken as a guidance and aid for the purpose of determining the qualification or not. On this aspect, learned counsel for the respondent/applicant placed strong reliance on a decision reported in S.P. Gupta and others v. Union of

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India and others^[2] wherein it is held at para No.1112 as under:

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“The marginal note in question was not incorporated in the

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Government of India Act, 1935. Moreover, the marginal note differed in material respects from clause (c) which was added to the proviso to Section 220(2) of the Government of India Act, 1935 as clause (c) referred to appointments to the Federal Court and to another High Court. There could be no transfer of a High Court Judge to the Federal Court. He could become a Jude of the Federal Court only on being appointed as such under Section 200(2) under a separate warrant of appointment. Even in the case of High Courts, a Judge of a High Court could become a Judge of another High Court under the Government of India Act, 1935 only by an appointment under Section 220(2) by a warrant of appointment. There was no independent provision corresponding to Article 222 of the Constitution providing for transfer in the Government of India Act, 1935. The Earl of Munster and Mr.Amery who spoke in the British Parliament on the subject were probably influenced by the marginal note in the amending Act and if I may say so got into an error of proximity when they relied on Section 10 of the Supreme Court of Judicature (Consolidation) Act, 1925, which established the Supreme Court of Judicature in England consisting of His Majesty’s High Court of Justice and His Majesty’s Court of Appeal both of which were in the same building at the Royal Courts of Justice. Even there Section 10(2) of that Act provided that the office of any Judge of the High Court would be vacated by his being appointed as a Judge of the Court of Appeal and the same Act used ‘transferred’ in Section 4(2) thereof where it was dealing with the transfer of a Judge of the High Court from one Division to another Division. The marginal note and the speeches relied on are, therefore, of not much use. On this slender material we cannot hold that there was a provision for transfer of a High Court Judge under the Government of India Act, 1935. I am of the view that there is no error committed by the learned Judges in stating so in Sankalchand Sheth case [Union of India v. Sankalchand Himatlal Sheth, (1977(4 SCC 193 : (1978) 1 SCR 423 : AIR 1977 SC 2328] and the decision in that case is not liable to be reconsidered on the ground now urged before us.”

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This is a case relating to a Marginal Note, which does not form part of the Act or the Rules. Those Marginal Notes can be supplemented by executive instructions.

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9. Learned counsel for the respondent/applicant relied upon book

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o n Principles of Statutory Interpretation by Justice G.P.Singh, (Fifth Edition 1992), which reads as follows:

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“Marginal Notes:- Although opinion is not uniform the weight of authority is in favour of the view that the marginal note appended to a section cannot be used for construing the section. LORD MACNAGHTEN emphatically stated : “It is well settled that marginal notes to the sections of an Act of Parliament cannot be referred to for the purpose of construing the Act. The contrary opinion originated in a mistake, and has been exploded long ago. There seems to be no reason for giving the marginal notes in an Indian statute any greater authority than the marginal notes in an English Act of Parliament”. PATANJALI SHASTRI, J., after referring to the above case with

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approval observed: “Marginal notes in an Indian statute, as in an Act of Parliament cannot be referred to for the purpose of construing the statute.” At any rate, there can be no justification for restricting the section by the marginal note, and the marginal note cannot certainly control the meaning of the body of the section if the language employed therein is clear.

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Marginal notes appended to Articles of the Constitution have been held to constitute part of the Constitution as passed by the Constituent Assembly and therefore they have been made use of in construing the Articles, e.g. Art.286, as furnishing “prima facie”, “some clue as to the meaning and purpose of the Article”.

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From a reading of the above passage, it is clear that Marginal Notes in an Indian statute cannot be referred to, for the purpose of construing the statute. When Marginal Note appended to a rule, it can be said to be a form part of the rule. Therefore, the above passage has no application to the present facts of the case. We are not using the Marginal Notes for the purpose of interpretation or construing the Act, but we are using the Marginal Note in relation to subject matter covered by Rule.

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10. Similarly, learned counsel for the respondent/respondent placed strong reliance on a decision reported in Union of India and Another v. Charanjit S. Gill and others^[3] wherein it is held at para No.25 as under:

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“It is not disputed that Section 191 of the Army Act empowers the Central Government to make rules for the purpose of carrying into effect the provisions of the Act and Section 192 to make regulations for all or any of the provisions of the Act other than those specified in Section 191. All rules and regulations made under the Act are required to be published in the Official Gazette and on such publication shall have the effect as if enacted in the Act. No power is conferred upon the Central Government of issuing notes or issuing orders which could have the effect of the rules made under the Act. Rules and regulations or administrative instructions can neither be supplemented nor substituted under any provision of the Act or the rules and regulations framed thereunder. The administrative instructions issued or the notes attached to the rules which are not referable to any statutory authority cannot be permitted to bring about a result which may take away the rights vested in a person governed by the Act. The Government, however, has the power to fill up the gaps in supplementing the rules by issuing instructions if the rules are silent on the subject provided the instructions issued are not inconsistent with the rules already framed. Accepting the contention of holding Note 2 as supplementing Rules 39 and 40 would amount to

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amending and superseding statutory Rules by administrative instructions. When Rule 39 read with Rule 40 imposes a restriction upon the Government and a right in favour of the person tried by a Court Martial to the effect that a person lower in rank shall not be a Member of the Court Martial or be a Judge Advocate, the insertion of Note 2 to Rule 102 cannot be held to have the effect of a rule or regulation. It appears that the “Notes” have been issued by the authorities of the Armed Forces for the guidance of the officers connected with the implementation of the provisions of the Act and the Rules and not with the object of supplementing or superseding the statutory Rules by administrative instructions. After examining various provisions of the Act, the Rules and Regulations framed thereunder and perusing the proceedings of the Court Martial conducted against Respondent 1, we are of the opinion that the Judge Advocate though not forming a part of the Court, yet being an integral part of it is required to possess all such qualifications and be free from the disqualifications which relate to the appointment of an officer to the Court Martial. In other words a Judge Advocate appointed with the Court Martial should not be an officer of a rank lower than that of the officer facing the trial unless the officer of such rank is not (having due regard to the exigencies of public service) available and the opinion regarding non-availability is specifically recorded in the convening order. As in the instant case, the Judge Advocate was lower in rank to the accused officer and no satisfaction/opinion in terms of sub-rule (2) of Rule 40 was recorded, the Division Bench of the High Court was justified in passing the impugned judgment, giving the authorities liberty to initiate fresh court martial proceedings, if any, if they are so advised in accordance with law and also in the light of the judgment delivered by the High Court.”

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Even from the above decision, the Rules, Regulations or Administrative instructions can neither be supplemented nor substituted under any provision of the Act. There is no dispute about the preposition of law laid down by the Hon’ble Supreme Court. But in the present case, the ‘Note’ has been incorporated by publishing in the A.P. Gazette, which reads as under:

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“In exercise of the powers conferred by Sections 78 and 99 of the Andhra Pradesh Education Act, 1982 (Andhra Pradesh Act 1 of 1982) and Sub-section (4) of section 168 and sub-section (4) of Section 195 and section 268 of the Andhra Pradesh Panchayat Raj Act, 1994 (Andhra Pradesh Act 13 of 1994) and section 74 of the Andhra Pradesh Municipalities Act 1965 (Andhra Pradesh Act No:6 of 1965) and paragraph 5 of the fifth schedule and the proviso to article 309 of the Constitution of India, the Governor of Andhra Pradesh hereby makes the following amendments to the Andhra Pradesh Direct Recruitment for the post of Teachers (Scheme of Selection) Rules 2000 issued in G.O.Ms.No.72, Education Department dated the 3^rd July, 2000 as subsequently amended.

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2. These amendments shall come into force with immediate effect.”

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This ‘Note’ appended to the Rules forms part of the amended Rules. The ‘Note’ appended to the rule is in the nature of explanation. It becomes a part and parcel of the rule. It explains the concerned medium or first language in S.S.C. examination. The Marginal Note is appended to include something within the ambit of the main rule. If a candidate does not fall within the ambit of ‘Note’ appended to the rule, he does not possess requisite qualification in the recruitment process. The ‘Note’ appended to the rule is not under challenge before the Tribunal. The contention of the learned counsel for the applicant/respondent that the Note is a Marginal Note, which is issued as executive instructions, cannot be accepted. When it forms part of a Rule, it can be relied upon.

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11. No doubt, this ‘Note’ has not been pleaded or brought to the notice of the Tribunal when the Original Application was pending. But, on that ground, it cannot be said that such a plea cannot be raised before this Court. Question of law can be raised at any point of time. Therefore, the contention of the learned counsel for the respondent/applicant cannot be accepted in view of the fact that Note (1) is appended to rule in G.O.Ms.No.136, dated 13.11.2003. As per this Note, the applicant is not eligible for the post of School Assistant (English) because admittedly, she has not passed the S.S.C. Examination in the concerned medium or with the concerned language as first language. This aspect of the case has been dealt with by this Court in unreported decision of this Court in W.P.No.26526 of 2013, dated 12.9.2013, wherein it is held as under:

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“From a perusal of the qualifications stipulated for the posts of Secondary Grade Teachers in the languages, four contingencies would arise. Apart from holding qualifications stipulated in paragraph (vii), one must have (a) studied S.S.C. in the concerned language as medium; (b) studied S.S.C. examination in any other language but with the concerned language as first language; (c) even if he did not study S.S.C. in the concerned language nor did he have the language as first language, he must have studied a higher course in the concerned language such as B.A or M.A. or other specialised course;

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and (d) such higher or superior examination, even if not related to the language, was in the concerned medium.

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To take a typical example, for the posts of Secondary Grade Teachers in Urdu, a candidate can be treated as eligible, if he has studied S.S.C in Urdu. The second category is where he studied S.S.C. in Telugu or English medium, but Urdu as first language. The third contingency is where he studied superior examination in the language meaning thereby B.A.Urdu or M.A.Urdu or any other specialised course exclusively in relation to the language. The 4^th contingency is where the superior examination is not confined to the study of language alone and was in respect of general courses, such as Physics, Economics, Commerce, but the medium of instruction was Urdu. Even in such a wide range of spectrum, the 1^st respondent did not fit in. He studied S.S.C. in English Medium without Urdu as first language. The Vidwan course Studied by him was in relation to Hindi language and it makes no difference if one of the subjects was Urdu. The B.Ed. course studied by him was not in Urdu medium nor was it exclusively for the language Urdu. In addition to these factors, some of the qualifications obtained by him are said to be subsequent to the notification. Viewed from any angle, we do not find that the 1^st respondent was qualified to be appointed as Secondary Grade Teacher in Urdu.”

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The above decision is a complete answer to the facts of this case also. In this case also, the applicant is not eligible to be appointed to the post in view of “Notes” to the rule. The appointment of applicant is illegal as it is not in accordance with rules. Therefore, following the said judgment, when the respondent/applicant is not eligible for the post she has applied, the question of continuation in that post, though appointed subsequently in view of interim orders of Tribunal, does not arise because an illegality cannot be perpetuated. Hence, the impugned order is liable to be set aside and is accordingly, set aside.

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12. Accordingly, the Writ Petition is allowed. There shall be no order as to costs. Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed.

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______________________ JUSTICE K.C.BHANU _______________ JUSTICE ANIS Date: 07.03.2014 AMD

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THE HON'BLE SRI JUSTICE K.C.BHANU AND

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THE HON’BLE MRS JUSTICE ANIS

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WRIT PETITION No.10992 OF 2005

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DATE: 07.03.2014

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AMD