This writ petition has been filed by the petitioner for a writ of Certiorarified Mandamus calling for the records pertaining to the impugned order passed by the 2nd respondent in Na Ka No H2/18759/07-4 dated 05.09.2008 and quash the same and consequently direct the respondents 1 and 2 to consider the petitioner for appointment to the post of Drawing Instructor in the Government Kallar High School.
2. The case of the petitioner is that he is a Diploma Holder in Drawing and he belonged to M.B.C Community. Further he has undergone the course of Technical Teacher Certificate Course during the year of 2004. He also completed higher examination in free hand outlines and Model Drawing conducted by the Government.
3.The District Employment Exchange has sponsored the name of the petitioner for the post of Drawing Instructor/Master to the respondent on 20.5.2008. After sponsoring the name of the petitioner, the 2nd respondent conducted Certificate Verification and Interview and at the same time, the third respondent namely Jeeva also participated in the certificate verification and interview .However the 2nd respondent contrary to the Special Rule which is called Special Rule of Backward Classes, Most Backward Classes Welfare Department, has appointed the third respondent to the post of Drawing Instructor/Master who was not possessing the required qualification for the said post.
4.The petitioner challenged the said appointment by way of filing the present writ petition on the ground of lack of prescribed qualification by the third respondent. It is pertinent to point out that as per the Special Rule, the Drawing Instructor is covered under Clause IV Category III. For easy reference the said Rule is reproduced below:
? Drawing Instructor/Master ? a pass in Government Technical examination in drawing by Higher Grade?
5.Per contra to the said Rule, the 3rd respondent was appointed but he does not possess the above qualification namely pass in Government Technical examination in Drawing by Higher Grade. However the third respondent possessed Degree in Fine Arts.
6.I heard Mr.C.Jeganathan, learned counsel appearing for the petitioner and the Mr.Aayiram K.Selvakumar, learned Government Advocate appearing for respondents 1 and 2 and Mr.T.Lajapathy Roy, learned counsel appearing for the 3rd respondent also.
7.The learned Government Advocate on the contra contended that the third respondent is having degree in Fine Arts and hence he is eligible for appointment as Drawing Instructor/Master and the Government Advocate also filed a counter affidavit stating that as per G.O.Ms 289 School Education Department dated 7.10.1999 the post of Special Teachers like Physical Education Teachers and Drawing Masters and Music Teaches and Sewing Teachers
- these posts should be filled up through seniority as per the Employment Exchange and further as per G.O.Ms 125 School Education Department dated 12.11.2003 the qualification for the post of Junior Grade Drawing Master found in Column 11 of Annexure is as follows:
11.Junior Grade Drawing Master:
(1)(A) Degree with Drawing and Painting under Part III of any University in the State or its equivalent; or Diploma in Painting or Diploma in Drawing of The Annamalai University Or (B) SSLC passed and Government Technical Examination (Higher Grade) in free hand outline and Model Drawing; or Government Diploma in Drawing; and (2) Technical Teacher?s Certificate.
8.Therefore as per the G.O. No 125 the 3rd respondent is eligible for appointment to the post of Drawing Instructor based on the educational qualification as well as employment seniority.
9.The learned counsel for 3rd respondent also contended in his arguments in the same line as that of the arguments put forward by the Government Advocate that his appointment is covered under the G.O.Ms 125. He also further contended that he is having more qualification than the prescribed qualification for the of Drawing Instructor/Master . It is further contended that after the appointment to the post of Drawing Instructor/Master, the third respondent also completed the examination in Drawing in Higher Grade. Therefore he is eligible for appointment to the post of Drawing Instructor/Master .
10.The learned counsel for the Petitioner countering the arguments of the 3rd respondent and the Government Advocate, stated that G O Ms 125 School Education Department is only applicable to appointment of Schools Education Department and not in the 2nd respondent schools / Kallar Reclamation. The Kallar Reclamation is having separate service rules. As per the said Service Rules the 3rd respondent did not possess the prescribed qualification but the third respondent having higher qualification which is not to be considered for the appointment to the post of Drawing Instructor/Master. On the very same lines the learned Counsel relied upon the reported Judgment of our Hon?ble Apex Court ? SCC 2005 (7) SCC p. 567 Para 15:
In the case of P M Latha V State of Kerala, the facts are identical to the facts of the case in hand. In that case also the posts were advertised for recruitment to the post of lower primary / upper primary teachers in government schools. The qualifications prescribed for the post in the advertisement published in the Official Gazettee notification was ? pass in TTC? which means trained teachers. Instead of selecting holders of TTC candidate the candidates holding B Ed degree were selected on the ground that B Ed is a higher qualification than TTC. This court held that in terms of the advertisement Bed degree holders were not eligible for selection.?
11.In the case on hand also the 2nd respondent is having Special Rule and as per the special Rule the 3rd respondent does not possess the require qualification.
12.Further the contention of the learned counsel for the petitioner is that second respondent also furnished documents under RTI Act on 5.11.2008 wherein it was clearly stated that the Kallar Reclamation is having Special Rules and the said Special Rules are only applicable to all appointment made in Kallar Reclamation. The 2nd respondent further stated that the rules followed by Government Schools is not applicable to Kallar Reclamation.
13.Therefore, on a careful and detailed reading of the documents filed before this Court and the arguments of the learned Counsels, this Court is of the considered view that the third respondent do not possess the required prescribed qualification under the Special Rule namely ?Drawing Instructor/Master ? a pass in Government Technical examination in drawing by Higher Grade?
14.At the time of appointment the 3rd respondent possessed degree in Fine Arts but he does not possess the qualification of drawing in Higher Grade. It was admitted by the 3rd respondent but the 3rd respondent contended that the 3rd respondent possessing higher qualification than the prescribed qualification namely Degree in Fine Arts. Further the learned Government Advocate / 3rd respondent contended that the appointment of 3rd respondent on the basis of G.O.Ms.No.125 School Education Department dated 11.11.2003 was made. But the said arguments of the learned Government Advocate and the 3rd respondent are not acceptable by this court. In my opinion the Special Rule clearly mention that the Drawing Instructor / Master having qualification is a pass in Government Technical Examination in Drawing by the Higher Grade?. This court is of the opinion that in terms of the above special rule, the 3rd respondent is not eligible for appointment as Drawing Instructor/Master in view of the Judgment of our Hon?ble Apex Court reported in (2005) 7 SCC 567.
15.Further the arguments of learned respondent counsel that on the basis of G.O.Ms.No.125 School Education Department the appointment was made. The said G O is only applicable to the Government Schools. The present appointment is made in Kallar Reclamation . Kallar Reclamation is having their own service rules. Hence the said G.O is not applicable to the present appointment in Kallar Reclamation. Hence the arguments are not acceptable.
16.In view of the above said facts, this Court come to conclusion that the appointment of the 3rd respondent is illegal and the same is liable to be set aside.
17.In the result:
(a) the writ petition is allowed by setting aside the order in ref.Na.Ka.No.H2/18759/07-4 dated 05.09.2008 by the 2nd respondent;
(b) the respondents 1 and 2 are hereby directed to consider the petitioner's case for appointment to the post of Drawing Instructor in the Government Kallar High School, by giving personal opportunity and pass orders;
(c) the said exercise shall be done within a period of eight weeks from the date of receipt of a copy of this order. No costs.
To
1.The Special Commissioner-cum-
Director of Most Backward and Denotified Communities, Ezhilagam, Cheupak, Chennai. 600 005.
2.The District Revenue Officer, Office of the District Collector, Kallar Reclamation, Madurai..