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2010 DIGILAW 2271 (MAD)

R. Vasugi v. Additional Assistant Educational Officer, Kadampathur

2010-06-08

K.CHANDRU

body2010
Judgment :- The petitioner initially filed O.A.No.2038 of 1998 before the Tamil Nadu Administrative Tribunal, seeking to challenge the order of the first respondent, i.e. Additional Assistant Elementary Education Officer, Kadampathur, dated 2.2.1998 and to set aside the same insofar as it had directed stoppage of her salary from February, 1998. Pending the OA, the Tribunal held that stoppage of salary cannot be allowed and therefore, there will be an interim stay of that direction issued by the first respondent. 2. On notice from the Tribunal, a reply affidavit has been filed by the second respondent, dated 22.10.1999. In view of the abolition of the Tribunal the matter stood transferred to this court and was renumbered as W.P.No.33019 of 2006. When the matter came up on 20.8.2009, the writ petition was dismissed for want of prosecution. Subsequently, on an application being filed in M.P.No.1 of 2009, this court restored the writ petition by an order dated 3.2.2010. Further, a counter affidavit was filed by the first respondent, dated 8.3.2010. The petitioner has also filed an additional affidavit, dated 19.9.2009. 3. It is the case of the petitioner that she was appointed as a Secondary Grade Teacher. She joined duty initially as the Secondary Grade teacher on 7.10.1986 at the Panchayat Union middle school, Kilveethi, Nemili Panchayat union. Her name was sponsored by the employment exchange, Vellore and that a written test was also conducted. She was appointed under Rule 10(a)(1) of the Tamil Nadu State and Subordinate Service Rules. She claimed to possess necessary educational qualification and had the Teacher Training certificate of two years duration issued by the Karnataka State Board. She was transferred to the Panchayat Union Middle School, Egathur, Kadambathur Panchayat union on 4.6.1988. She also completed her probation after two years during October, 1988, but her service was not regularised. Since her Karnataka Teacher Training certificate was not evaluated, she sent it for evaluation. 4. The petitioner was informed by a letter sent by the Director of Elementary Education, dated 31.7.1986 stating that it had been evaluated and found equivalent. However, subsequently, on 11.8.1989, she was informed by the Joint Director that she should contact the education department of Karnataka State and find out about her pass in the second year examination. 4. The petitioner was informed by a letter sent by the Director of Elementary Education, dated 31.7.1986 stating that it had been evaluated and found equivalent. However, subsequently, on 11.8.1989, she was informed by the Joint Director that she should contact the education department of Karnataka State and find out about her pass in the second year examination. When she went to Karnataka, the teacher training institute where she had studied was found closed and in that premises only a school was functioning. She also find out from the Directorate that she had failed in two subjects in the second year, i.e. Educational Psychology and Principles of Teaching as well as Educational Administration, Organisation and Health Education. She was also asked to appear for the examination in respect of those failed subjects from any one of the existing institute. 5. The petitioner claimed that she wrote those two examinations privately at Afza Teachers Training Institution at Bangarapet. After passing those two papers, she informed the Directorate about the same. However, the Directorate returned her application by stating that she never submitted her original certificate as it may show that she had failed in two subjects in question. Since she had failed in two subjects during April, 1984 and passed them only in May, 1992, her earlier appointment under Rule 10(a)(1) itself was illegal. She had suppressed the real position before the Government. Therefore, the first respondent had issued a show cause notice as to why disciplinary action should not be initiated against her. It is this show cause notice which is under challenge in the OA. 6. It was also stated that subsequent to the dismissal of the writ petition for want of prosecution, the second respondent DEEO cancelled her appointment by an order dated 17.9.2009 and further directed the first respondent to recover the salary paid to the petitioner. 7. In the counter affidavit, it was stated that unless and until the petitioners teacher training certificate obtained from the Karnataka State Board is evaluated as equivalent to the certificate by the Directorate, the petitioner could not have gained appointment in the State Government. Her earlier attempt to gain entry during the year 1986 with false educational certificate can never be countenanced by this court. The petitioner was given illegal appointment even though she did not possess valid Karnataka Teacher Training certificate. Her earlier attempt to gain entry during the year 1986 with false educational certificate can never be countenanced by this court. The petitioner was given illegal appointment even though she did not possess valid Karnataka Teacher Training certificate. It is only in May, 1992, she claimed to have passed all the subjects to get the teacher training certificate. Throughout her tenure, she did not submit her original certificate despite request being made in this regard. In fact, the original certificate which was referred to for verification was found to be a bogus certificate. 8. The petitioner has filed the original application against the show cause notice and subsequently, the matter was transferred to this court and renumbered as a writ petition, which itself was dismissed for want of prosecution. Though the petitioner attempted to contend that her certificate was a genuine one, this court is not inclined to deal with the same in a writ petition filed against the show cause notice. In fact, already the petitioners services were terminated vide an order dated 17.09.2009 issued by the second respondent. No attempt has been made to challenge the said order. Even otherwise, unless and until the petitioner has come out with full facts, the question of impugning that order will not arise. 9. The Supreme Court in this regard held that if a person do not possess qualification for holding the post at the time of appointment, certainly any appointment made contrary to the rules will be a nullity. The subsequent acquisition of educational qualification will not cure the initial defect. In this context, it is necessary to refer to the judgment of the Supreme Court in Pramod Kumar v. U.P. Secondary Education Services Commission reported in (2008) 7 SCC 153 . The following passages found in paragraphs 16 to 18 and 24 from the said judgment may be usefully extracted herebelow: "16. The qualifications for holding a post have been laid down under a statute. Any appointment in violation thereof would be a nullity. 17. It is a matter of some concern that appointments are being offered by the authorities of the State without verifying the fact as to whether the degree(s) possessed by the candidate(s) are valid or not. It was an ad hoc appointment. Why despite the same, he was allowed to obtain degree from another university is not known. 18. 17. It is a matter of some concern that appointments are being offered by the authorities of the State without verifying the fact as to whether the degree(s) possessed by the candidate(s) are valid or not. It was an ad hoc appointment. Why despite the same, he was allowed to obtain degree from another university is not known. 18. If the essential educational qualification for recruitment to a post is not satisfied, ordinarily the same cannot be condoned. Such an act cannot be ratified. An appointment which is contrary to the statute/statutory rules would be void in law. An illegality cannot be regularised, particularly, when the statute in no unmistakable term says so. Only an irregularity can be. [See Secy., State of Karnataka v. Umadevi (3), National Fertilizers Ltd. v. Somvir Singh and Post Master General, Kolkata v. Tutu Das (Dutta)4.] 24. A departmental proceeding against the appellant might have been initiated after the change of management. We will also assume that the said proceeding was initiated after the contempt proceeding was initiated. The appellant, however, has filed a writ application for issuance of or in the nature of a writ of mandamus. He, therefore, must establish existence of a legal right in himself and a corresponding legal duty in the State. If he did not possess the requisite qualification to hold a post, he could not have any legal right to continue. It was, therefore, immaterial as to why and when the said proceeding had been initiated against him." 10. The contentions made in the original application before the Tribunal are very vague and did not give true picture. Therefore, for all these reasons, the writ petition will stand dismissed. No costs. However, a liberty is given to the petitioner to challenge the order of removal passed by the second respondent.