V RAMASWAMY Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THIS writ anneal is directed against the order of the learned single fudge in W.P. No 1565 of 1980 The petitioner in the writ petition is the appellant herein and the respondents herein were respondents in the writ petition. For the sake of convenience we shall refer the parties by their nomenclature assigned to them in the writ petition. On 21-71-979 the first respondent issued G.O. Ms. No. 1298 Education dated 21.7.1979, hereinafter referred to as the impugned Government Order under which 200 additio nal posts of B.T. Grade Headmasters were sanctioned for Middle School (Higher Elementary schools) in the State. The said Government Order in the typed set of papers runs as follows? ? G.O. No. Ms. 1298 Education dated 21.7.1979. Read: 1. G.O.Ms. No. 1063 Education, dated 11.5.1961.

(2.) G.O.Ms. No. 1027, Education, dated 24-5-78.

(3.) SRI V. Ramasamy's name was sponsored by the Employment Exchange and bis number was S1. 9-5-75 Reg. No 12118/79, M.C.O. 151. 10. He was given an interview and was found suitable for the post. Because of the time limit to fill upthe post before 31-8-1979 his case was considered and was appointed as from 31-8-1979 as Headmaster. He has been working since 31-8-1979; but his salary has not been paid as we have not received the teaching grant assessment from the Education Department. In view of the foregoing we were not able to appoint a qualified Tamil Pandit and would request you to ratify our appointment and pass necessary orders regularising the appointment and sanctiont the Teaching Grant to enable us to disburse his salary as a special case. Thanking you, Yours faithfully. Aided Higher Elementary School injipara Estate, Valparai P.O. Sd./- Correspondent. Copies to: 1. The Chief Educational Officer, Coimbatore. 2. The District Educational Officer, Pollachi. 3. The Deputy Inspector of Schools, Valparai. On 3-3-1980, the second-respondent declined this request of the petitioner as follows: ?Copy of Director's proceeding L.Dis. 254127-B7/79, dated 3-3-1980. Sub:? Elementary Education-Aided-Aided Middle School, Injipara Estate-Coimbatore District-Allotment-Regarding. Ref:? 1- R.O.C.21347-D1/79 dated 25-1-80 of the District Educational Officer, Pollachi. 2. R.O.C. 44403-B1/79 dated 8-2-80 of the Chief Educational Officer, Coimbatore. 1. The Chief Educational Officer is informed that with reference to the orders issued in G.O.Ms. No. 1298, Education, dated 21-7-1979, the Correspondent, Aided Middle School, Injipara Estate ought to have filled up the B.T. Grade, Headmaster's posi allotted by the District Educational Officer, Pollachi during 1979-80 by a qualified B.T/Tamil Pandit working as Secondary Grade Teacher or other categories of teachers working in the school. If there is no such B.T. or Tamil Pandit qua ified Secondary Grade or other categories of the teachers working in the school, then the aoove post should be filled up from the open market by the appointment of a Tamil Pandit. But the correspondent, Aided Middle School, Injipara Estate, has filled upthe B.T. Grade Headmaster's Post allotted to his school by appointing one Thiru V. Ramasamy, B.A. B.Ed. a candidate Sponsored by the Employment Exchange on 31-8-1079 as there is no B.T. Tamil Pandit qualified Secondary Grade Teacher and other categories of the teachers under me management of Injipara estate. 2. Since the action of the Management defeats the purpose of the G O, the Correspondent Aided Middle School Injiparai Estate may be asked to replace immediately Thiru V. Ramasamy, B.T. Grade Headmaster b a qualified Tamil Pandit from the open market by contracting the concerned Em ployment Exchange to sponsored Tamil Pandit's name for filling up B.T. Grade Headmaster's post since it is reported that there are no qualified Secondary Grade or other Categories of the teachers working in Aided Middle School, Injipara Estate. A report on the action taken by the Correspondent in this regard should reach this office on or before 15-3-1980. This reference should be treated as specially Urgent. (Sd.)P.V. Munirathiam, ? ? ? ? ? ? ? ? ? ? ? ? For Director of School Education?. ? ? ? ? ? This obliged the petitioner to come to this court by way of the writ petition, projecting the following prayer: ?For the reasons stated in the accompanving affidavit, the petitioner herein prays that this Honble Court may be pleased to issue a writ or order or direction in the nature of Certiorarified mandamus particularly a Writ of Certiorarified Mandamus to call for the records from the 1st respondent made irt G.O.Ms. No. 1298 Education dated 21-7-1979 and quash the para 2 (ii) of the impugned G.O. in so far as it relates to the petitioner and direct the respondents to regularise the services of the petitioner from the date of his appointment ort 31-8-79 and thus render justice? 5. The learned single judge did not countenance the grievances of the petitioner on any of the points urged before him and in particular with reference to discrimination coming within the mischief of Article 16 of the Constitution of India and dismissed the Writ petition. The learned single judge countenanced the contention raised by respondents 1 and 2 that even assuming that the petitioner has a valid case, the petitioner not having been sponsored by the Employment Exchange at the time of induction into service his appointment must be held to have been vitiated. Thus the petitioner has come before us by way of the present Writ Appeal. 6. Mr. P. Shanmugham, learned counsel for the petitioner, would confine his submissions only to the aspect of discrimination coming within the mischief of Articles 14 and 16 of the Constitution of India. Learned counsel for the petitioner would submit that for filling up the posts of B.T. Grade Headmasters in the Middle Schools, two sources were provided; and in one source, namely, in-service filling up of the posts, the qualification of B Ed. or Tamil Pandit was recognised as being on par with each other and only in the other source, namely, recruitment from open market or by transfer from another management, the preference was confined only to Tamil Pandits and the State having treated both the categories, namely, B.Ed and Tamil Pandit as equals for one source for the very same post cannot excludes B.Ed in the other source, namely, direct recruitment from open market or by transfer from another management and this classification is not at all founded on any intelligible differentia and the differentia has no rational nexus to the objects sought to be achieved by the State in creating the additional posts. In substance, learned counsel for the petitioner wants Cl. 2 (ii) of the impugned Government Order to be struck down as violative of Articles 14 and 16 of the Constitution of India. Our assessment of the position, factual and legal, in the matter obliges us to concur with the submissions of the learned counsel for the petitioner. Certain well settled principles which have come to be recognised as basic oh the question of discrimination violative of Articles 14 and 16 of the Constitution of India cannot be lost sight of. When there is a complaint of violation of Articles 14 and 16 of the Constitution of India with reference to a rule of a statutory provision, it must be found Out as to whether two tests stand satisfied. The first test is, as to whether the classification on which impugned rule or statutory provision is founded is based on intelligible differentia which distinguishes persons or things grouped together from others left out of the group. The s-cond test is as to whether the differentia in question has a reasonable relation to the object sought to be achieved by the impugned rule or statutory provision and there must be nexus between the basis of the classification and the object intended to be achieved by the impugned rule or the statutory provision. Here the post to be filled up is that of a B.T. Grade Headmaster in a Middle School. Two sources were thought about and chalked out, namely, in-service filling up and direct recruitment from open market or by transfer from another management. For in service filling up, both B.Ed. and Tamil Pandit were found competent. But, by Cl. 2 (ii) of the impugned Government Order, for direct recruitment in open market or by transfer from another management, B.Ed. was excluded and only a Tamil Pandit has been directed to be preferred. As to why a B.Ed. should be excluded, when the other source of direct recruitment is to be resorted to for the same post is not at all convincingly explained by respondents 1 and 2. The post is one and the same. With regard to one source, namely, in-service filling up, both B Ed. and Tamil Pandit were found qualified and competent They are treated on par. When the other source, namely, direct recruitment from open market or by transfer from another management is resorted to there is apparently every justification and warrant for countenancing and continuing the equality, already recognised in respect of both the categories, namely. B.Ed., and Tamil Pandit. In the absence of any convincing explanation for conceiving a differentia, which must have a reasonable nexus to the objects intended to be achieved, it is not possible to uphold this differentia either as an intelligible one or as a reasonable one, going out of the mischief of Articles 14 and 16 of the Constitution of India. The only reason which we could glean from the counter-affidavit filed on behalf of respondents 1 and 2 in the Writ petition is found in paragraph 3 (4) thereof, which runs as follows: ??In Secondary Schools, the pupils studying in standed VI to VIII, acquire proficiency in mother tongne (Tamil) as intensive teaching is done by Tamil Pandits in the learning process. Besides, the students learn the other subjects also in Tamil and usage of mother tongue is the main source for effective learning. In Middle Schools (Higher Elementary) Tamil is handled by Secondary Grade Teachers and as such, it is imperative and essential to appoint Tamil Pandits in Middle School when direct recruitment is made for B.T. Grade Headmasters. This facility makes the pupils to acquire rich knowledge and understanding in subject matters when they are handled by highly competent teachers appointed to improve quality. The petitioner can appear as a candidate for B.T. Post in High Schools and he has opportunity to get his change. There is a clear stipulation in the G.O. that a Tamil Pandit should be appointed from open market when it cannot be otherwise filled in?.' 7. What has been set out in the counter-affidavit of respondents 1 and 2 has not found any expression in the impugned Government order. Leaving that alone, and even when we examine and assess what has been averred in the counter-affidavit of respondents 1 and 2 we must say that it does not make out any intelligible differentia and it does not set out any reasonable nexus between the differentia and the object intended to be achieved. If the object is that the students in the Middle Schools, must learn the subjects in Tamil and imparling of knowledge in the subjects by Tamil Pandits alone would make the students to acquire rich knowledge and understanding in the subjects, as seems to have been declared in the above paragraph in the counter affidavit of respondents 1 and 2 then this object ought to have found expression even while delineating the first source by confining that source to only one category, namely, Tamil Pandit. That has not been done. As to why Tamil Pandit alone should be the choice when the second source to the same post is chalked out, is not at all brought forth before us to bring any conviction to our mind. Both B.Ed. and Tamil Pandit are found competent and equals for in-service filling up of the post. It is not even claimed that with regard to the first source namely, in-service filling up, there is a need to accommodate and encourage B Eds. who are already in service. Further, as to what extent a Headmaster in a Middle School, his office being what it is would take up an exhaustive role of imparting knowledge in subjects to the students in Tamil, when he happens to be a Tamil Pandit, also does not stand expatiated by respondents 1 and 2. The differences between the two services, in our view, have no reasonable relation to the nature of the office to which recruitment is to be made and the same cannot be legitimately sustained on the basis of a valid classification. There is absolutely no warrant to give a preferential treatment to Tamil Pandit against B.Ed. in the matter of the second source. There is no reasonable nexus between the differences. No legitimate justification for excluding B.Ed. in the second source has been made out. The learned single judge, in our view, has not approached and assessed this question from the above angle and this has resulted in his not appreciating this grievance of the petitioner.