IN THE HIGH COURT OF MADRAS

Writ Petition No. 19631 of 2011

Decided On:14.08.2012

Appellants:R. Thirunavukkarasau
Vs.
Respondent:The State of Tamil Nadu, rep. by its Secretary to Government, School of Education Department, Secretariat, Fort St. George, Chennai-600009 and Ors.
[Writ Petition Nos. 14864, 14865, 14866, 14867, 14868, 15004, 15235, 15578, 15579, 15675, 15802, 16088 and 16186 of 2012]

Hon'ble Judges/Coram:
Honourable Mr. JusticeV. Ramasubramanian

ORDER

Honourable Mr. JusticeV. Ramasubramanian

1. A few Secondary Grade Teachers have come up with the above writ petitions, primarily seeking a Mandamus, to direct the respondents to prepare a panel of Secondary Grade Teachers eligible for promotion as B.T. Assistants in Middle Schools, including only the names of those Secondary Grade Teachers who have completed a 3 year Degree Course in the concerned discipline, after completing 10 years of High Schooling and 2 years of Higher Secondary Course. Some of the writ petitions also challenge, in addition to the above prayer, Clause 6 of an instruction issued by the Director of School Education dated 18.12.2008 by which the Panel Drawing Authorities were directed to include even those Secondary Grade Teachers who have completed a Degree of one year duration in the concerned subject. A few petitioners have challenged the panels drawn in a couple of Districts such as Thiruvallur and Salem Districts, in so far as those panels include the names of persons who have a degree of a duration of one year in the concerned subject. I have heard Mr. N.G.R. Prasad, Mr. C. Selvaraju, learned Senior Counsel and Mr. M.Ravi, learned counsel appearing for the petitioners in the writ petitions, Mr. P.H. Arvindh Pandian, learned Additional Advocate General, assisted by Mr. M.C. Swamy, learned Special Government Pleader for the official respondents and Mr. K.M. Vijayan, learned Senior Counsel, M/S. G. Sankaran, P.V.S. Giridhar and S.N. Ravichandran, K.H. Ravi Kumar and Mrs. A. Arulmozhi, learned counsel appearing for the contesting/impleaded respondents.

2. The writ petitioners as well as the contesting respondents are at present employed as Secondary Grade Teachers. The official respondents have either already prepared or/been in the process of preparing panels for promotion to the post of B.T. Assistants in Middle Schools. Since the panels for promotion to the post of B.T. Assistant are prepared by the official respondents, on the basis of subject roster, depending upon the vacancies available in each of the subjects to be taught, the contesting respondents have secured additional degrees also known as 'dual degrees', whose duration is only one year, in the subjects concerned.

3. The grievance of the petitioners is that the contesting respondents have been included in the panels for promotion to the post of B.T. Assistants in the subjects in which they secured an additional/dual degree of a duration of one year and that therefore, they cannot be considered as eligible for promotion in the concerned subjects.

4. Therefore, the short question that arises for consideration in this batch of writ petitions is as to whether a person who obtained an additional/dual degree of a duration of one year in a particular subject, is entitled to be promoted to the post of B.T. Assistants in that particular subject or not.

5. Before I take up for consideration the core question, I must first deal with a preliminary objection raised by the learned counsel for the impleaded respondents, to the very maintainability of the writ petitions. The preliminary objection is that most of the writ petitioners have come up with a challenge to the panels for promotion, without making those already included in the panels as parties to the writ petitions. Therefore, the writ petitions, according to the learned counsel for the contesting respondents, are not maintainable, due to non-joinder of necessary and proper parties and that the attempt of the writ petitioners to get orders behind the back of persons whose inclusion in the panels are under challenge, is fraudulent.

6. At the outset, the above preliminary objection deserves to be rejected at least for two reasons. They are:-

(i) Many persons, whose names are found in the impugned panels, have now come up before me with applications for impleading and those impleading applications have been allowed by me. All the impleading petitioners are actually represented by a battery of eminent, effective, senior and forceful lawyers. Actually the number of counsel who appeared for the contesting respondents and the effectiveness of their presentation far exceeded that of the learned counsel appearing on the side of the writ petitioners. Therefore, the cause of those, whose names are already included in the panels, have been espoused before me vociferously and their contentions are very effectively presented before me by a number of counsel. Hence the defect that existed at the threshold, in the writ petitions, has now been cured to a great extent. It is needless to point out that the non-joinder of necessary and proper parties is a curable defect. Though the writ petitioners did not implead all the persons who may be aggrieved by the eventual decision, many of them have got impleaded subsequently. Therefore, the defect has actually got cured.

(ii) The objection to the maintainability of the writ petitions, even if could be accepted, would apply only to one part of the prayer in the writ petitions. The prayer in all these writ petitions comprises of two parts, one relating to a pure question of law and another relating to mixed question of law and fact. While the correctness of the inclusion of the names of one or more named individuals, in a panel for promotion, is a mixed question of fact and law, the question whether dual degrees of a duration of one year in a particular subject can be considered eligible for promotion in that particular subject, is a pure question of law. For deciding, a pure question of fact or a mixed question of law and fact, it may be essential to implead those who may be affected by the outcome. But for deciding the pure question of law, it may not be so. The case on hand raises both a pure question of law and mixed questions of fact and law. Even if I agree with the learned counsel for the contesting respondents, I would be barred from deciding the validity of the individual panels. In other words, if the objections to the maintainability of the writ petitions on the ground of non-joinder of necessary parties is sustained, the prayer which related to individual panels may have to go. But still the pure question of law as to whether a person holding a dual degree in a subject could be considered as eligible for promotion, would certainly survive for adjudication, even if none of the contesting respondents have come up before me with impleading petitions. As a matter of fact, many of the writ petitions challenge the proceedings dated 18.12.2008 of the Director. In these proceedings, the Director indicated that persons holding a dual degree, obtained within a duration of one year could be considered for promotion. These proceedings are not issued in favour of any named individuals. These are general in nature and hence the petitioners cannot be expected to implead anyone in the writ petitions challenging these proceedings dated 18.12.2008. In fact, the potency of the objection relating to non-joinder of necessary parties, is whittled down, in view of Rule 9 and Rule 13 of OrderICPC. Though the provisions of the Code of Civil Procedure are not applicable per se to writ proceedings, the fundamental principles, enunciated in the Code, if they are based upon equity and good conscience, can always be applied to writ proceedings. Therefore, in essence, the objection on the ground of non-joinder of necessary and proper parties, cannot be sustained in so far as the pure question of law that arises for consideration in these cases is concerned.

7. Having disposed of the challenge to the maintainability of the writ petitions, I should now turn my attention to the core question. But before doing so, I should actually bring on record the stand taken by the official respondents viz., the Government and the Director of Elementary Education. The stand taken by the official respondents, appears to be wavering and not consistent throughout. As a matter of fact, a communication of the Director of Elementary Education dated 19.7.2012 was produced before me, at the time of conclusion of the hearing of the writ petitions. This communication supports the stand of the writ petitioners. Therefore, I can virtually allow the writ petitions, on the basis of the stand taken by the official respondents, since there is no ambiguity in the letter dated 19.7.2012. Yet I am persuaded to go into the core issue, on account of two things viz., (i) that the official respondents have been shifting sides, without any consistency and (ii) that by just closing the writ petitions on the basis of the letter of the Director of Elementary Education, I would only be shirking the responsibility of answering the fundamental issue raised in these writ petitions. This would only pave the way for a host of fresh writ petitions challenging the letter of the Director dated 19.7.2012. It is rudimentary that a Court should find a solution to the problem without driving the parties to another round of litigation. The only exception to this is that a Court would not dabble with issues which have become mere matters of academic importance. Therefore, let me first bring on- record how the official respondents have, in the past, sent different signals. The following sequence of events or orders, may be useful to see things more clearly:-

(i) By the proceedings dated 18.12.2008 in Rc. No. 36679/D3/2008, the Director of Elementary Education issued certain guidelines for preparation of seniority lists and panels. In Clause (6) of the said proceedings dated 18.12.2008, the Director stated that a person who had secured an additional degree of a duration of one year, will be eligible for consideration for promotion to the post of B.T. Assistants.

(ii) By another proceedings bearing the same number dated 6.1.2009, the Director of Elementary Education instructed all the Subordinate Officers that a person who had completed a 3 year degree course without B.Ed./B.T., could be considered for appointment to the post of Tamil Teacher or Middle School Headmaster, if he had additionally secured a one year degree (double major) in B.A.(Tamil)/B.Lit.(Tamil). These proceedings dated 6.1.2009 were issued by way of additional instructions to the previous set of instructions dated 18.12.2008.

(iii) When a person by name H. Arunkumar made an application under the Right to Information Act, to the Directorate of Elementary Education, raising about 7 queries, the Public Information Officer gave a reply on 14.11.2010. Question No. 2 raised by the applicant therein was as to whether persons who did 3 year degree in History, Mathematics, Commerce, Economics, Tamil etc., could be promoted as B.T. Assistants (English) merely because they secured an additional degree of a duration of one year from Annamalai University in B.A. (English) Literature. But the Public Information Officer shirked the question by saying that questions raised on presumptions cannot be answered. Nevertheless, the Public Information Officer answered question Nos.4 and 5, in the negative. Question No. 4 was as to whether the holder of a one year degree in English Literature could be compared to the holder of a degree of 3 years duration in B.A. (English). Question No. 5 was as to whether the Government had issued any orders for recognising one year B.A.(English) degree. The Public Information Officer gave an emphatic "no" as the answer to these questions.

(iv) In response to another query made by another candidate, the Public Information Officer sent a reply dated 15.12.2010 to the effect that the Director of Elementary Education had not issued any orders for the grant of promotion to the post of B.T. Assistants (English) to one year degree holders.

(v) In another set of instructions issued in Rc. No. 12118/D1/2011 dated 13.9.2011, the Director of School Education clarified in paragraph 27 that before including in the panel the names of persons who secured dual degrees of a duration of one year, the District Elementary Educational Officer should examine the syllabus, the leave taken by the teachers, the particulars of prior permission etc. However, in paragraph-22 of the same instructions, it was also stated that only those who had acquired a degree under the stream of 10+2+3 should be included in the panel.

(vi) In G.O.Ms.No.162, Higher Education, dated 14.7.2011, the Government issued guidelines for admission of students to Teacher Training Institutions for the academic year 2011-2012. In the Annexure to the said Government Order, it was made clear in Paragraph II (iv) that candidates who have passed Additional Degree Program with less than 3 years duration, are not eligible for admission. Again in Paragraph II (v) of the Annexure to the same Government Order, it was clarified that candidates who had passed under 4 years Dual Degree Program with 2 major subjects in Part III, are not eligible for admission. Therefore, it is clear that the second degree or the additional degree obtained with a duration of less than 3 years, is not even considered by the Government for admission to B.Ed. At this stage, it is also relevant to record that B.Ed., Program itself is now designed with particular reference to optional subjects such as Tamil/Urdu, English, Maths, Physical Sciences (Physics), Physical Sciences (Chemistry), Biological Sciences (Botany), Biological Sciences (Zoology), History, Geography, Computer Science, Home Science, Economics, Commerce, Political Science, Sociology, Psychology, Logic and Indian Culture, as seen from Paragraph I.1 of the Annexure to the above Government Order.