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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  NO.   3342             OF 2014 (Arising out of Special Leave Petition (C) No. 36170 OF 2013)

K. Gunavathi        ...    APPELLANT (S)

VERSUS

V. Sangeeth Kumar & Ors.       ...  RESPONDENT (S)

WITH

CIVIL APPEAL  NO.   3344             OF 2014 (Arising out of Special Leave Petition (C) No. 33677 OF 2013)

CIVIL APPEAL  NO.   3345             OF 2014 (Arising out of Special Leave Petition (C) No. 35624 OF 2013)

CIVIL APPEAL  NO.   3346             OF 2014 (Arising out of Special Leave Petition (C) No. 5044 OF 2014)

J U D G M E N T

RANJAN GOGOI, J.

1. Leave granted.

2.  What clearly has been a long drawn tussle between  

under-qualified  Computer  Instructors  appointed  on  ad-hoc  

basis  (many  of  them  have  acquired  the  requisite  

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qualification  i.e.  B.Ed.   Degree in  the  meantime)  and  the  

B.Ed. qualified candidates who are yet to be appointed but  

claim to have been waiting for such appointment for long  

have surfaced once again, albeit, in a different manner.  The  

challenge in these appeals is in respect of the directions of  

the Madras High Court in the common order under challenge  

dated 18.09.2013, particularly,  direction No.   (vi)  and (vii)  

contained in para 53.  To better comprehend the dimensions  

of  the  challenge  para  53  of  the  impugned  order  is  

reproduced hereinbelow.

“53. Summary of conclusion :-

(i) The Government was correct and justified in  terminating  the  services  of  failed  computer  instructors;

(ii) The failed computer instructors have no right  to  continue  after  the  conclusion  of  second  round of regularization process;  

(iii) The writ petitioners have no right to continue  even  temporarily,  pending  regular  recruitment;

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(iv) The  failed  computer  instructors  are  not  eligible or entitled for regularization in view  of the finding recorded by the Supreme Court  in Civil Appeal No. 4187 of 2009;

(v) The names of the failed computer instructors  (whose names were earlier registered in the  Employment Exchange) should be re-entered  in the Employment register of the concerned  Employment  Exchange  and  their  earlier  seniority also should be restored;

(vi) The  Government  shall  follow  the  present  policy  of  recruitment  of  teachers,  while  appointing  computer  instructors  viz.  recruitment  through  Teachers  Recruitment  Board;

(vii) The  writ  petitioners  are  eligible  to  apply  along with others pursuant to the notification  issued  by  the  Teacher  Recruitment  Board.  The writ petitioners are not entitled for any  kind  of  preference.   However,  they  are  at  liberty to apply for age relaxation to apply for  the  recruitment  and  the  request  for  age  relaxation,  if  any,  would  be  considered  on  merits.”

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3. The reference to the recurrent dispute between the two  

warring  groups  seeking  either  to  retain  or  obtain  

employment would necessarily require this Court to traverse  

the complex factual matrix once again notwithstanding the  

fact that in each of the challenges before the High Court as  

well as this Court a sequential narration of the relevant facts  

has been made.  As, unless the same are repeated herein  

the  issues  will  not  crystallize  and,  therefore,  there  is  no  

option but once again to recapitulate the events of the past.

4. Some time in the year 1999, the Government of Tamil  

Nadu took a policy decision to offer computer science as an  

elective  subject  to  students  of  classes  11  and  12  in  the  

government higher secondary schools of the State.  To give  

effect to the said policy the State Government awarded a  

five  year  contract  to  the  Electronic  Corporation  of  Tamil  

Nadu (ELCOT) to provide not only computer hardware and  

software but also the man power for conducting the classes.  

ELCOT therefore engaged Computer Instructors numbering  

1332 in the first phase (1999) and 1062 in the second phase  

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(2000).   Such  placements  were  made  through  different  

employment agencies.

5. After the contract with ELCOT had ended in February,  

2005,  the State Government by a G.O. MS No.  187 dated  

4.10.2006  notified  its  decision  to  create  one  post  of  

Computer Instructor in every government higher secondary  

school  of  the State  (1880 schools)  in  the  payscale  of  Rs.  

5500-175-9000/-.   A decision was also taken to regularize  

the services of the Computer Instructors appointed by ELCOT  

against the said posts subject to their clearing a special test  

to  be  held  by  the  Teachers  Recruitment  Board.   The  

minimum marks in order to be selected was fixed at 50%.  

Inbuilt  in  the  said  decision  was  to  relax  the  educational  

qualifications  for  such  Computer  Instructors,  namely,  the  

B.Ed.  degree  which  they  did  not  possess.   The  aforesaid  

order  was  challenged  before  the  Madras  High  Court  in  a  

batch of  writ  petitions  by the B.Ed.  degree holders  which  

were allowed by order dated 13.03.2007.  In the Writ Appeal  

before the Division Bench (Writ Appeal No. 1215/2007), the  

State Government took the stand that the recruitment test  

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proposed for  serving Computer  Instructors  by waiving the  

eligibility  requirement  of  B.Ed.  degree  was  a  one  time  

exception and that all  future recruitments would be made  

from eligible candidates having the B.Ed. qualification, based  

on employment exchange seniority, without any preference  

to the existing Computer Instructors. The Division Bench of  

the High Court by order dated 22.08.2008 allowed the Writ  

Appeal in the above terms.   

6. The  aforesaid  order  of  the  Division  Bench  dated  

22.08.2008 was challenged by the B.Ed. qualified teachers  

before this Court in Civil Appeal No. 4187 of 2009 (arising  

out of SLP(C) No. 25097 of 2008).   While issuing notice on  

13.10.2008, this Court had passed an interim order to the  

effect  that  the  appointment  of  Computer  Instructors  

pursuant  to  the  order  dated  22.08.2008  of  the  Division  

Bench of the High Court will be subject to the result of the  

appeals.   The  recruitment  test  was  held  on  12.10.2008.  

However,  contrary  to  the  government  decision  that  only  

those  candidates  who  had  secured  50%  marks  would  be  

selected, in the result published, 1686 number of candidates  

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were shown as selected out of which only 894 had secured  

50% or more marks whereas the remaining 792 candidates  

had secured between 35% and 50% marks.  It also appears  

that  based  on  the  aforesaid  selection  the  government  

proceeded to appoint a total of 1683 candidates.   Out of the  

remaining  197  posts  that  remained  vacant  (1880-1683  =  

197) 22 posts were covered by various interim orders of the  

High Court leaving the actual number of vacancies at 175.  

The figures mentioned above would be relevant in the light  

of the developments that took place subsequently which are  

being noted separately.   

7. The fact  that  in  the  special  recruitment  test  held  on  

12.10.2008 candidates  who had secured between 35-50%  

marks  were  also  selected and appointed  were  brought  to  

notice of this Court in the pleadings in Civil Appeal No. 4187  

of  2009.   By  order  dated  09.07.2009,  the  aforesaid  Civil  

Appeal  was  disposed holding  that  the  special  recruitment  

test held on 12.10.2008 pursuant to the High Court’s order  

dated 22.08.2008, being a one time exception and dictated  

by  sympathetic  grounds  insofar  as  the  adhoc  Computer  

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Instructors  working  for  long  years  are  concerned,  was  

justified.   But,  the  decision/action  of  the  government  to  

reduce the minimum marks and the selection of candidates  

securing less than 50% marks was held to be arbitrary and  

was  consequently  not  approved.   However,  this  Court  

permitted the holding of another recruitment test (without  

insisting on a B.Ed. degree) for those candidates who had  

secured  more  than  35%  but  less  than  50%  marks  

(hereinafter referred to as the ‘failed candidates’).   It  was  

also made clear that the aforesaid recruitment test would  

again be a one time exception and same would be held also  

by issuing an advertisement besides permitting candidates  

sponsored  by  the  employment  exchange  to  take  part  

therein.  It must also be specifically noticed that this Court  

by its order dated 09.07.2009 did not expressly issue any  

direction  for  cancellation  of  the  appointments  of  the  

candidates who had secured less than 50% marks.  However,  

such  a  conclusion  would  inevitably  follow  from  the  

conclusion  that  the  reduction  of  minimum  marks  was  

arbitrary  and  unjustified  and  the  fact  that  all  such  failed  

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candidates were permitted to appear in another recruitment  

test.  

8. Several  applications  for  clarification etc.  of  the  order  

dated 09.07.2009 came to be filed before this Court.  Of the  

said  applications,  I.A.  No.  4  of  2009  filed  by  the  State  

Government  would  be of  particular  significance insofar  as  

the present adjudication is concerned.  The prayer made in  

the said I.A. are, therefore, extracted below.

“(a) Clarify and permit the State Government to  conduct examination to the candidates who have  secured  35% to  49% marks  in  the  examination  and  declare  the  results  of  the  candidates  who  secured  more  than  50%  marks  as  eligible  candidates for appointment.

(b) Clarify and permit the State Government to  recruit  Vocational  Computer  Instructors  for  the  existing  vacancies  175  and  future  vacancies  for  the  post  of  Compute  Instructors  through  the  Employment Exchange based on the seniority with  the  Employment  Exchange  as  per  the  policy  decision and also as per the G.O. Ms. 290, School  Education Department, dated 06.12.2007 and G.O.  

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Ms. No. 66, School Education Department,  dated  02.03.2009;

(c) Direct the correction of the figures appearing  in  paras  10,  12  &  14  of  the  Judgment  dated  09.07.2009 passed by this  Hon’ble Court in  C.A.  No. 4187 of 2009 as “857 to read as 894 and 829  to read as 792”.”  

9. This  Court,  in  para  11 of  its  order  dated 19.11.2009  

while observing that it was not inclined to alter or review its  

earlier order dated 09.07.2009, however,  clarified the said  

order by permitting the State Government to:

“(a) ….. ….. ….. …..  

(i) ….. ….. ….. …...

(ii) recruit  Vocational  Computer  Instructors  for  the  existing  175  vacancies  and  future  vacancies  for  the  post  of  Computer  Instructors  through  the  Employment  Exchange  based  on  the  seniority  with  the  Employment  Exchange  as  per  the  policy  decision of the State Government as well as  Government  Orders  applicable  to  appointment  to  the  post  of  Computer  Instructors.

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(b) …… ….. ….. …..”

10. It will be necessary to take note of the fact that prayer  

(b) in I.A. No. 4 of 2009 and clarification (a) (ii) in the order  

dated 19.11.2009 was made in the light of  a government  

policy then in force as detailed in G.O. (MS) No. 290 dated  

06.12.2007 and G.O. (MS) No. 66 dated 02.03.2009 issued  

by the School Education Department.  Under the aforesaid  

G.Os. vacancies in the post of Computer Instructors were to  

be filled up on the basis of the seniority in the employment  

exchange.   

11. Pursuant to the order of this Court dated 9.7.2009 read  

with  the  clarificatory  order  dated  19.11.2009,  a  second  

recruitment test was held on 24.01.2010.  The said test, for  

reasons  not  known,  was  however  confined  only  to  those  

Computer  Instructors  who  had  secured  between  35-50%  

marks in the first recruitment test i.e. the “failed candidates”  

though in terms of the order of this Court dated 9.7.2009  

there were three categories of candidates who were entitled  

to  participate  in  the  said  recruitment  test  i.e.  ‘failed  

candidates’,  ‘open  market  candidates’  and  ‘employment  

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exchange candidates’.  The conduct of the recruitment test  

in  a  limited  manner  also  did  not  come  under  challenge  

before  any  forum.   Out  of  the  792  candidates  (failed  

candidates)  who  had  appeared  in  the  second  recruitment  

test  only  125  secured  50%  marks  and  above  and  667  

candidates  once again  failed.   A  writ  petition  i.e.  WP No.  

7567  of  2010  was  filed  before  the  Madras  High  Court  to  

declare the second recruitment test as null and void due to  

certain anomalies in the answer key.  The said writ petition  

was dismissed.  In the appeal filed (Writ Appeal No. 837 of  

2010),  by order dated 20.12.2012, the appellate Bench of  

the  High  Court  while  rejecting  the  prayer  for  a  fresh  

examination had directed the Teachers Recruitment Board to  

reassess  the  merit  of  the  candidates  by  eliminating  20  

defective  questions.   Pursuant  to  the  above  exercise  

undertaken,  only 15 out  of  the 667 failed candidates had  

passed, thereby, reducing the number of failed candidates to  

652.  As the services of the aforesaid failed candidates were  

being allowed to continue instead of being terminated and  

as the selection for the resultant vacancies consequential to  

such  termination  was  not  being  undertaken,  the  B.Ed.  12

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qualified  candidates  filed  a  contempt  petition  before  the  

High Court  (Contempt Petition No.  1270 of  2013)  alleging  

disobedience and contending that the vacancies (652) are  

required  to  be  filled  up  on  the  basis  of  the  employment  

exchange  seniority.   During  the  pendency  of  the  said  

proceeding the services of the 652 candidates (twice failed)  

were  terminated.   Against  the  aforesaid  terminations,  

several writ petitions were filed wherein a common interim  

order dated 30.04.2013 was passed by holding that :-

“(i)  The  petitioners  have  no  right  either  to  question  their  termination  or  to  seek  regularization.   But  till  a  regular  process  of  selection  is  conducted  by  the  Government,  the  schools cannot be left without Teachers and hence  till  a  regular  recruitment  takes  place,  the  writ  petitioners shall continue.  

(ii) As directed by the Division Bench of this Court,  by order dated 20.12.2012, the Government shall  expedite the process of regular recruitment.  

(iii)  On  the  question  as  to  what  method  of  recruitment the Government should follow, I would  

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leave it to the Government to decide in the light of  the various judgments of the Supreme Court and  the Full Bench of this Court.”

12. Aggrieved by the aforesaid directions,  both the B.Ed.  

degree holders and the terminated teachers had filed Writ  

Appeals which were numbered as W.A. No. 1307 of 2013 and  

W.A.Nos.1088 and 1089 of 2013 respectively.  All  the writ  

petitions  that  were  filed  by  the  terminated  Computer  

Instructors were heard alongwith the writ appeals.   All such  

cases  were  disposed  of  by  the  impugned  common  order  

dated 18.09.2003.  It is the validity of the aforesaid common  

order, particularly directions (vi) and (vii) contained in para  

53 thereof (extracted above), that has been assailed in the  

present appeals.  Three of the civil appeals (arising out of  

SLP(C) Nos. 36170/2013, 33677/2013 and 35624/2013) have  

been filed by the B.Ed. degree holders whereas the fourth  

civil  appeal  (arising out  of  SLP(C)  No.  5044/2014)  is  by a  

terminated teacher who seeks to make a common ground  

with the B.Ed. degree holders as the said appellant had in  

the meantime obtained a B.Ed. degree.   

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13. The challenge to the directions contained in para 53 (vi)  

and  (vii)  of  the  impugned  order  being  based  on  the  

appellants’  perception  of  true  purport  and  effect  of  the  

clarification made by this Court by order dated 19.11.2009  

under paragraph 11(a) (ii) (already extracted) the same will  

require consideration, particularly,  in the light of the stand  

taken by the State in its counter affidavit dated 31.1.2014  

filed before this Court.  The above, we may indicate, is the  

scope of the adjudication in the cases before us.

14. In the order dated 19.11.2009 this Court had made it  

clear that it is in no way inclined to alter or review the earlier  

decision  dated  09.07.2009.   The  aforesaid  order  dated  

09.07.2009 did not deal with the vacancies (175) that had  

existed  after  1683  out  of  the  1880  posts  were  filled  up  

during  the  pendency  of  Civil  Appeal  No.  4187  of  2009;  

neither did the said order deal with the manner of filling up  

of any of the posts that would require to be filled up in case  

any  of  the  failed  candidates,  once  again,  were  to  be  

unsuccessful in the special recruitment test ordered by this  

Court as a one time measure by the order dated 09.07.2009.  

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It is in these circumstances that the I.A. in question was filed  

by the State of Tamil Nadu on 16.09.2009 setting out the  

relevant GOs, namely, GO (MS) No. 290 dated 06.12.2007  

and No. 66 dated 02.03.2009 under which the vacant posts  

were to be filled up through the employment exchange.  In  

para 7 of the I.A. it was specifically mentioned that by means  

of the present application the State “seeks a clarification  

and a direction that it may be permitted to conduct  

the examinations for the unsuccessful candidates and  

the remaining vacancies viz. 175 candidates may be  

permitted to be recruited as per the seniority in the  

employment exchange.  In addition to the above after  

the tests in  respect of  the candidates who secured  

marks between 35% and 50% are concluded such of  

the  candidates  who  secure  less  than  50%  marks  

would  be  declared  ineligible  for  consideration  and  

such vacancies would also be permitted to be filled in  

the order of seniority in the employment exchange.”  

This  Court,  under  para  11  (a)(ii)  of  the  order  dated  

19.11.2009, granted permission to the State Government to  

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vacancies  and  future  vacancies  through  the  employment  

exchange  “as  per  the  policy  decision  of  the  State  

Government as well as Government Orders applicable  

to appointment to the post of Computer Instructors.”

15. On  the  basis  of  the  above  clarification  dated  

19.11.2009 the appellants claim that the 652 vacancies now  

available  are  required  to  be  filled  on  the  basis  of  the  

seniority in the employment exchange and not by a process  

of  open  recruitment.   The  aforesaid  claim  has  been  

negatived  by  the  High  Court  by  the  impugned  order  

(paragraph 46)  on the ground that  the government policy  

contained in G.O. (MS) No. 290 dated 06.12.2007 and G.O.  

(MS) No. 66 dated 02.03.2009 is no longer in force and that  

the government is at liberty to adopt a different policy.  The  

High Court has also found that the policy as on date is to  

conduct  a  written  test  through  the  Teachers  Recruitment  

Board by calling for applications from the open market as  

well as from the employment exchange.  It has been further  

observed  that  the  serving  Computer  Instructors  (failed  

candidates)  would  be  entitled  to  apply  pursuant  to  such  

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notice/advertisement  as  may  be  issued  by  the  Teachers  

Recruitment  Board  and  would  also  be  entitled  to  seek  

relaxation of their age which claims are to be decided strictly  

on merit.  The High Court has however made it clear that the  

serving Computer Instructors would not be entitled to any  

kind of preference.

16. The  stand  of  the  State  in  its  counter  affidavit  dated  

31.01.1994 (paragraph 17) may now be taken note of.  It has  

been averred by the State that after coming into force of the  

Right  to  Children  and  Compulsory  Education  Act,  2009  

(RTE  Act)  recruitment  of  Secondary  Grade  and  Graduate  

Teachers (BT Assistants) (Classes I to VII) is being made by  

holding a teacher’s eligibility test.  According to the State,  

G.O.No.175 School Education Department dated 18.11.2011  

has been issued for recruitment of post-graduate Assistant  

Teachers  in  higher  secondary  classes  “through  written  

examination and certificate verification instead of the earlier  

method of recruiting teachers by following the employment  

exchange seniority.”  It is further averred that, as computer  

instructors  teach  in  higher  secondary  classes,  in  order  to  

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provide quality education,  the Government has introduced  

competitive examination to recruit teachers in all categories.  

According to the State in implementation of the High Court’s  

order  dated  18.09.2013,  G.O.  No.296  School  Education  

Department dated 04.12.2013 has been issued directing the  

Teachers  Recruitment  Board  to  fill  up  the  652  posts  of  

computer instructors through a competitive examination.

17. The  claims  of  the  State,  noticed  above,  is  seriously  

disputed by the petitioners.  Referring to the affidavit dated  

12.8.2013  filed  by  the  State  before  the  High  Court  in  

Contempt  Petition  No.1270  of  2013  and  the  order  of  the  

same date passed in the said proceeding it is pointed out  

that even on 12.08.2013 it was admitted by the State before  

the  High  Court  that  it  is  committed  to  complete  the  

recruitment  in  question  on  the  basis  of  the  employment  

exchange  seniority  and  further  that  the  High  Court  had  

granted  time  to  the  State  to  commence  and  complete  a  

substantial part of the recruitment process within a period of  

two  months  and,  thereafter,  file  an  action  taken  report  

before the Court.  It  is pointed out that pursuant to order  

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dated 12.8.2013, action taken report dated 12.10.2013 has  

been filed stating that the whole matter is being examined  

by the Advocate General and his views are awaited.  This is  

despite  the  directions  in  the  impugned  order  dated  

18.9.2013.  On the basis of the above, it is contended that  

adoption  of  any  other  method  of  recruitment  save  and  

except employment exchange seniority will not be justified  

and  the  G.O.  No.296  dated  04.12.2013  prescribing  

open/competitive examination is required to be interdicted.

18. An argument has also been advanced on behalf of the  

petitioners that computer instructors are not teachers and  

therefore even if a policy of recruitment of teachers by open  

competition is presently in vogue the same will not apply to  

the post of computer instructor.  The aforesaid argument has  

been sought to be fortified on the basis of the averments  

made in this regard by the State of Tamil Nadu in its counter  

affidavit  in  C.A.  No.4187  of  2009  (Arising  out  of  SLP  (C)  

No.25097 of 2008).

19. The above issue i.e. that Computer Instructors are not  

teachers  need  to  hardly  detain  the  Court.   Not  only  the  

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context in which the above statements were made must be  

kept in mind, the contention ex-facie deserves rejection in  

view of high degree of computer proficiency that is required  

in the contemporary world.    

20. The affidavit filed on behalf  of the State in contempt  

petition  No.1270/2013  as  well  as  the  order  of  even  date  

passed by the High Court in the said proceeding  indicates  

that  the State in  an earlier  affidavit  dated 20.6.2013 had  

indicated that it is necessary to fill up the 652 vacancies of  

computer  instructors  through  the  Teachers  Recruitment  

Board by conducting written examination.   However in  its  

order dated 2.8.2013 the High Court took the view that to  

such recruitments the clarificatory order dated 19.11.2009 of  

this Court should be adhered to and had fixed the matter on  

12.8.2013 to enable the State to inform the Court the time  

that would be required to complete the recruitment process  

in terms of the direction of this Court dated 19.11.2009.

21. Accordingly, in para 10 of the affidavit dated 12.8.2013  

of the State it was stated as follows:   

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“It is submit that, in view of the above to fill  up  652 vacancies in the post of Computer instructors  based on the Seniority with employment exchange  through Teacher Recruitment Board in accordance  with  the  Government  Order  in  G.O.  (Ms)  No.66,  school  Education  Department,  dated  02.03.2009  and  G.O.  (Ms)  No.332,  School  Education  Department  dated  11.12.2009,  the  Teachers  Recruitment  Board  needs  considerable  time  to  complete the process by following the procedure  from the time of notification till the publication of  the result.

In these circumstances, it is prayed that this  Hon’ble High Court may be pleased to extend the  time granted by the Hon’ble  High Court  in  W.A.  No.837/2010  for  further  6  months  to  implement  the  orders  of  this  High  Court  and  thus  render  justice.”

22. Thereafter, the High Court proceeded on the basis that  

the State is committed to fill up the vacancies on the basis of  

the  employment  exchange  seniority  and  by  order  dated  

12.08.2013 granted two months time to enable the State to  

initiate the recruitment process and complete a substantial  

part  thereof,  whereafter,  the compliance report was to be  

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filed  which,  as  has  been  noticed,  was  submitted  on  

12.10.2013.

23. The  record  of  the  proceedings  of  Contempt  Case  

No.1270/2013,  therefore,  clearly  indicates  that  the  High  

Court, while rendering the order dated 12.8.2013, was of the  

view  that  the  recruitment  should  be  on  the  basis  of  

employment  exchange  seniority.    This  is  not  

notwithstanding  the  stand  of  the  State  to  the  contrary.  

Thereafter,  the  order  in  the  present  group  of  cases  was  

passed on 18.9.2013.  It appears that before doing so, the  

stand of  the State with regard to the change of  policy of  

recruitment  and  the  efficacy  of  the  GO  No.290  dated  

6.12.2007  and  GO  No.66  dated  2.3.2009  was  again  

considered and the impugned directions for completing the  

recruitment not through the employment exchange but by  

open competition through the Teachers Recruitment Board  

were issued.

24. Though Contempt Case No.1270/2013 and the present  

group of cases are independent of each other, the proximity  

of the controversy arising in both cases i.e. the mode and  

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manner of recruitment of Computer Instructors,  cannot be  

underscored.  There is seemingly different understandings of  

the  same  issue  in  the  two  sets  of  proceedings.   No  

explanation is available in the impugned order to justify the  

change  of  judicial  vision.   In  fact,  in  the  order  dated  

18.09.2013  there  is  no  reference  to  the  order  dated  

12.8.2013 in the contempt case.  There is also no indication,  

whatsoever,  as  to  what  could  have  been  the  compelling  

reason(s) that had weighed with the Court to depart from its  

earlier order dated 12.8.2013 passed after full consideration  

of the claims of the State with regard to change of policy.  

Furthermore,  if  according  to  the  State  there  had  been  a  

change  of  policy  with  regard  to  mode  and  manner  of  

recruitment,  the  GOs  No.290  dated  6.12.2007  and  No.66  

dated 2.3.2009 ought to have been cancelled.  Neither any  

government order of cancellation is before the Court nor is  

there  any  statement  that  such  a  cancellation  has  been  

made.   In   the  counter  affidavit  of  the  State  dated  

21.01.2014  filed   before   this  Court   though  there  is   a  

mention of   G.O.No.175 dated  18.12.2011  providing  for  

recruitment  of  post-graduate  assistant teachers  in  higher  24

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secondary  classes  through  written  examination  instead  of  

the earlier method of employment exchange seniority, the  

said G.O. has not been placed on record.  Even if the facts  

claimed on the basis of the said G.O. No.175 are assumed,  

there is no explanation as to why the Teachers Recruitment  

Board had issued advertisement No.1/2013 dated 8.5.2013  

specifying in Clause 9 thereof that the vacancies covered by  

the said advertisement are to be filled up on the basis of the  

State level employment registration seniority.   Incidentally  

the said Advertisement covered a sizeable number of posts  

(approx. 800) in different vocational streams.  In view of the  

above, we have not been able to persuade ourselves to take  

the view that the recruitment to 652 posts should be made  

by  a  process  other  than  what  was  directed  by  the  

clarificatory order dated 19.11.2009.

25. The order dated 19.11.2009 directing filling up of 175  

existing  vacancies  and  future  vacancies  of  Computer  

Instructors  on  the  basis  of  the  employment  exchange  

seniority was a conscious decision taken in departure from  

the virtually settled position in law that recruitment to public  

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service, normally, ought to be by open advertisement and  

requisitions through the employment exchange can at best  

be  supplemental.  (See:   Excise  Superintendent  

Malkapatnam,  Krishna  Distgrict,  A.P. Vs. K.B.N.  

Visweshwara  Rao  &  Ors.1,  Arun  Kumar  Nayak  Vs.  

Union of India & Ors.2 and  State of Orissa & Anr.  Vs.  

Mamata Mohanty3).   Such  departure  was  felt  necessary  

due to the compulsive needs dictated by the peculiar facts of  

the case.  At that point of time, out of the 1880 available  

posts 1683 posts had already been filled up by the adhoc  

and  underqualified  Computer  Instructors  already  working  

leaving  only  175  vacancies  and  an  unknown  number  of  

further vacancies which was contingent on the result of the  

second recruitment test ordered by this Court as a one time  

measure.  Both the recruitment tests, ordered by the High  

Court as well as this Court, were exclusive to the adhoc and  

unqualified  persons  leaving  a  large  number  of  qualified  

candidates  like  the  petitioners  out  of  the  arena  of  

consideration.  

1 (1996) 6 SCC 216 2 (2006) 8 SCC 111 3 (2011) 3 SCC 436

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26. What would be the extent of the ‘adverse’ effect on the  

failed  teachers  if  the  remaining  appointments  are  to  be  

made on the basis of employment exchange seniority cannot  

be determined with  any degree of  accuracy at  this  stage  

inasmuch as a large number of such persons had qualified in  

the meantime and by virtue of clause (v)  of Para 53 of the  

impugned  order,  the  names  of  the  failed  computer  

instructors who were earlier registered in the employment  

exchanges have been directed to  be re-entered and their  

earlier  seniority  restored.   While  it  is  also  correct  that  by  

ordering recruitment on the basis of employment exchange  

seniority other eligible candidates who could have taken part  

in  the  competitive  examination  would  loose  out,  no  such  

person is presently before us to persuade us to take the view  

that  for  the  purpose  of  recruitment  to  the  652  posts  of  

Computer  Instructors the earlier  order  of  this  Court  dated  

19.11.2009 should not prevail.

27. We  accordingly  allow  these  appeals  and  set  aside  

directions (vi)  and (vii)  of  Para 53 of  the impugned order  

dated  18.09.2013  of  the  High  Court  and  direct  that  

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recruitment to the 652 vacant posts shall be made on the  

basis of employment exchange seniority.  We also make it  

clear  that  the  above  direction  shall  also  govern  the  175  

existing vacancies covered by the order of this Court dated  

19.11.2009  if  the  same continue  to  remain  vacant  as  on  

date.  To all other vacancies, existing or future, as may be,  

the State will be at liberty to follow such policy as may be in  

force or considered appropriate.

...…………………………CJI. [P. SATHASIVAM]

.........………………………J. [RANJAN GOGOI]

…..........……………………J. [N. V. RAMANA]

NEW DELHI, MARCH  7, 2014.

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