K. GUNAVATHIversusV. SANGEETH KUMAR & ORS.

                      [2014] 4 S.C.R. 395


                         K. GUNAVATHI                                 A
                                v.
               V. SANGEETH KUMAR & ORS.
               (Civil Appeal No. 3342 of 2014)
                       MARCH 7, 2014
                                                                      8
       [P. SATHASIVAM, CJI, RANJAN GOGOi AND
                   N.V. RAMANA, JJ.]

     Service law: Selection - Appointment of Computer
Instructor - Filling up of post on the basis of the employment        C
exchange seniority - One time measure - Held: High Court's
directiofJ in clarificatory order to fill up 175 existing vacancies
of Computer Instructors on the basis of the employment
exchange seniority was a conscious decision taken in
departure from the settled position in law that recruitment to        D
public service, normally, ought to be by open advertisement
and requisitions through the employment exchange can at
best be supplemental - Such departure was felt necessary
due to the compulsive needs in the peculiar facts of the case
- To all other vacancies, existing or future, as may be, the          E
State may follow such policy as may be in force or considered
appropriate.

     In the year 1999, the Government of Tamil Nadu took
a policy decision to offer computer science as an elective
subject in the State Government higher secondary                      F
schools. 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,               G
engaged Computer Instructors numbering 1332 in the
first phase (1999) and 1062 in the second phase (2000).
Such placements were made through different

                               395                                    H
   396     SUPREME COURT REPORTS             [2014] 4 S.C.R.


A employment agencies. After the contract with ELCOT
  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. A decision was
B 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
c decision was to relax the educational qualifications for
  such Computer Instructors, namely, the B.Ed. degree
  which they did not possess. The said order was
  successfully challenged before the High Court in a batch
  of writ petitions by the B.Ed. degree holders. The
  Division Bench allowed the State's appeal on 22.08.2008
0
  accepting the stand that the recruitment test 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
E on employment exchange seniority, without any
  preference to the existing Computer Instructors. T h e
  said order of the Division Bench was challenged by the
  B.Ed. qualified teachers before the Supreme Court. While
  issuing notice on 13.10.2008, the Court passed an interim
F 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 would be subject to the
  result of the appeals. The recruitment test was held on
  12.10.2008. However, contrary to the government
G decision that only those candidates who had secured
  50% marks would be selected, in the result published,
  1686 number of candidates were shown as selected out
  of which only 894 had secured 50% or more marks
  whereas the remaining 792 candidates had secured
H
      K. GUNAVATHI v. V. SANGEETH KUMAR               397


between 35% and 50% marks. Based on the said A
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. By order dated B
09.07.2009, the Civil Appeal was disposed of 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 Instructors working for c
long years were 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, the Supreme
                                                             0
Court permitted the holding of another recruitment test
(without insisting on a B.Ed. degree) for those failed
candidates who had secured more than 35% but less
than 50% marks. It was also made clear that the aforesaid
recruitment test would again be a one time exception and E
same would be held also by issuing an advertisement
besides permitting candidates sponsored by the
employment exchange to take part therein. Several
applications for clarification of the order dated 09.07.2009
came to be filed before the Supreme Court. The Court by
order dated 19.11.2009 clarified the said order by F
permitting the State Government to 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 G
policy decision of the State Government as well as
Government Orders applicable to appointment to the post
of Computer Instructors.

    Pursuant to the order dated 9.7.2009 read with the      H
   398     SUPREME COURT REPORTS             [2014) 4 S.C.R.

A clarificatory order dated 19.11.2009, a second recruitment
  test was held on 24.01.2010. The said test 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
B order 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 exchange candidates'. The
  conduct of the recruitment test in a limited manner also
c 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 was filed before the High Court to declare
  the second recruitment test as null and void due to
0
  certain anomalies in the answer key. The said writ
  petition was dismissed. On appeal, the appellate Bench
  of the High Court while rejecting the prayer for a fresh
  examination directed the Teachers Recruitment Board to
E reassess the merit of the candidates by eliminating 20
  defective questions. Pursuant to the said exercise
  undertaken, only 15 out of the 667 failed candidates
  passed, thereby, reducing the number of failed
  candidates to 652. As the services of the said failed
  candidates were being allowed to continue instead of
F being terminated and as the selection for the resultant
  vacancies consequential to such termination was not
  being undertaken, the B.Ed. qualified candidates filed a
  contempt petition before the High Court alleging
  disobedience and contending that the vacancies (652)
G were 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 said
  terminations, several writ petitions were filed wherein a
H common interim order dated 30.04.2013 was passed by
      K. GUNAVATHI v. V. SANGEETH KUMAR                 399


holding that the petitioners have•. no right either to         A
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; that as directed by the            B
Division Bench by order dated 20.12.2012, the
Government shall expedite the process of regular
recruitment; and the method of recruitment was left to the
Government to decide.

     Aggrieved by the said directions, both the B.Ed.          C
degree holders and the terminated teachers filed writ
appeals. 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. The instant            D
appeals were filed challenging the validity of the said
common order, particularly directions (vi) and (vii) of Para
53 which stated that the Government shall follow the
present policy of recruitment of teachers, while
appointing computer instructors viz. recruitment through       E
Teachers Recruitment Board; and the writ petitioners-
appellants were eligible to apply along with others
pursuant to the notification issued by the Teacher
Recruitment Board and the writ petitioners are not
entitled for any kind of preference. However, they are at      F
liberty to apply for age relaxation to apply for the
recruitment and the request for age relaxation, if any,
would be considered on merits.

    Allowing the appeal, the Court
                                                               G
    HELD: 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      H
   400     SUPREME COURT REPORTS              [2014] 4 S.C.R.


A recruitment to public service, normally, ought to be by
  open advertisement and requisitions through the
  employment exchange can at best be supplemental. Such
  departure was felt necessary due to the compulsive
  needs dictated by the peculiar facts of the case. At that
8 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
C 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 appellants out of
  the arena of consideration. What would be the extent of
D 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
E 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
F 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 has come before this court to persuade the
  Court to take the view that for the purpose of recruitment
G to the 652 posts of Computer Instructors the earlier order
  of this Court dated 19.11.2009 should not prevail. The
  directions (vi) and (vii) of the impugned order dated
  18.09.2013 of the High Court are set aside and
  recruitment to the 652 vacant posts shall be made on the
H basis of employment exchange seniority. The above
       K. GUNAVATHI v. V SANGEETH KUMAR                  401

direction shall also govern the 175 existing vacancies          A
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. [paras 25, 26, 27] [415-D-G; 416-       B
B-F]
     Excise Superintendent Malkapatnam, Krishna District,
A.P. v. K.B.N. Visweshwara Rao & Ors. (1996) 6 SCC 216:
1996 (5) Suppl. SCR 73; Arun Kumar Nayak v. Union of
India & Ors. (2006) 8 SCC 111: 2006 (6) Suppl. SCR 404; C
State of Orissa & Anr. v. Mama ta Mohanty (2011) 3 SCC
436: 2011 (2) SCR 704 - relied on.
                     Case Law Reference:
    1996 (5) Suppl. SCR 73       relied on         Para 25      D
    2006 (6) Suppl. SCR 404 relied on              Para 25
    2011 (2) SCR 704             relied on         Para 25
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3342 of 2014.                                                   E
    From the Judgment & Order dated 18.09.2013 of the High
Court of Madras in WA No. 1307 of 2013.
                           WITH
C.A. Nos. 3344, 3345 and 3346 of 2014.                          F

    Hema Sampath, Nalini Chidambaram, A.K. Ganguly,
Subramonium Prasad, AAG, G. Sivabalamurugan, Sandeep
Kumar, L.K. Pandey, Namrata Sood, Varun Singh, Vikas
Mehta, Geetha Kovilan, R. Prabhakaran, G.S. Mani, R. Sathish,   G
M. Yogesh Kanna, Tushar Bakshi for the appearing parties.
    The Judgment of the Court was delivered by
    RANJAN GOGOi, J. 1. Leave granted.
    2. What clearly has been a long drawn tussle between        H
    402          SUPREME COURT REPORTS               [2014] 4 S.C.R.


A under-qualified Computer Instructors appointed on ad-hoc
  basis (many of them have acquired the requisite 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
B 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
c 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;
D
           (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
E                  temporarily, pending regular recruitment;
           (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;
F
           (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
G                  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
H                  Recruitment Board;
       K. GUNAVATHI v. V. SANGEETH KUMAR                      403
               [RANJAN GOGOi, J.]
      (vii)   The writ petitioners are eligible to apply along with   A
              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       B
              relaxation, if any, would be considered on merits."

     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 C
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.                             D

      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             E
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          F
first phase (1999) and 1062 in the second phase (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 G
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 H
    404      SUPREME COURT REPORTS                  [2014] 4 S.C.R.


A   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
B   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 proposed for serving Computer Instructors by
c   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
D   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
E   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
F   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 were shown as selected out of which only 894
    had secured 50% or more marks whereas the remaining 792
G   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
H   Court leaving the actual number of vacancies at 175. The
       K. GUNAVATHI v. V. SANGEETH KUMAR                      405
               [RANJAN GOGOi, J.]
figures mentioned above would be relevant in the light of the         A
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%                  B
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                C
sympathetic grounds insofar as the adhoc Computer 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               D
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       E
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            F
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 candidates were permitted to appear in another        G
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 H
    406          SUPREME COURT REPORTS               [2014] 4 S.C.R.


A   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
8
          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
c         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
D         Education Department, dated 06.12.2007 and G.O. 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
E         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
F   order by permitting the State Government to:

           "(a)

           (i)
G
           (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

H
       K. GUNAVATHI v. V. SANGEETH KUMAR                        407
               [RANJAN GOGOi, J.]
             the Employment Exchange as per the policy                 A
             decision of the State Government as well as
             Government Orders applicable to appointment to
             the post of Computer Instructors.

      (b)                                                         "
                                                                       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                C
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.
                                                                       D
      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              E
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 exchange candidates'. The
conduct of the recruitment test in a limited manner also did not       F
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              G
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      H
    408       SUPREME COURT REPORTS                   [2014] 4 S.C.R.


A 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
B 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. qualified candidates filed a
  contempt petition before the High Court (Contempt Petition No.
c 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,
D 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
E         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
F
          process of regular recruitment.

          (iii) On the question as to what method of recruitment the
          Government should ·follow, I would leave it to the
          Government to decide in the light of the various judgments
G         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
H W.A.Nos.1088 and 1089 of 2013 respectively. All the writ
       K. GUNAVATHI v. V. SANGEETH KUMAR                       409
               [RANJAN GOGOi, J.)
petitions that were filed by the terminated Computer Instructors       A
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           B
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               c
the s.aid appellant had in the meantime obtained a B.Ed.
degree.

      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               D
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            E
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                   F
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          G
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. 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.           H
   410      SUPREME COURT REPORTS                [2014] 4 S.C.R.

A 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
B 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
c 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."
0 This Court, under para 11 (a)(ii) of the order dated 19.11.2009,
  granted permission to the State Government to recruit
  vocational Computer Instructors for the existing 175 vacancies
  and future vacancies through the employment exchange "as per
  the policy decision of the State Government as well as
E 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
F 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
G 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
H been further observed that the serving Computer Instructors
       K. GUNAVATHI v. V. SANGEETH KUMAR                   411
               [RANJAN GOGOi, J.]
(failed candidates) would be entitled to apply pursuant to such   A
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    B
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 C
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 D
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 provide quality education, the E
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 F
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 · G
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 H
    412     SUPREME COURT REPORTS                  [2014] 4 S.C.R.


A 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 dated
B 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
c 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
D 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
E 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
F teachers need to hardly detain the Court. Not only the 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.

G      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
H instructors through the Teachers Recruitment Board by
         K. GUNAVATHI v. V. SANGEETH KUMAR                     413
                 [RANJAN GOGOi, J.]
 conducting written examination. However in its order dated           A
 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        B
 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:

      "It" is submit that, in view of the above to fill up 652        C
      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                   D
      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.
                                                                      E
           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."
                                                                      F
         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    G
  thereof, whereafter, the compliance report was to be 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,
                                                                      H
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A 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
B 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
c 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 manner
    of recruitment of Computer Instructors, cannot be underscored.
D   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
E   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
F   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.
G   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 secondary classes through written
    examination instead of the earlier method of employment
H   exchange seniority, the said G.O. has not been placed on
        K. GUNAVATHI v. V. SANGEETH KUMAR                     415
                [RANJAN GOGOi, J.]
record. Even if the facts claimed on the basis of the said G.O.       A
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            B
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                 c
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      D
position in law that recruitment to public 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.             E
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            F
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          G
Court, were exclusive to the adhoc and unqualified persons

1.   (1996) 6 sec 216.
2.   c2000> s sec 111.
3.   c2011) 3 sec 436.                                                H
    416      SUPREME COURT REPORTS                   [2014] 4 S.C.R.


A   leaving a large number of qualified candidates like the
    petitioners out of the arena of consideration.

        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
8
  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
C 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
D 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
E directions (vi) and (vii) of Para 53 of the impugned order dated
  18.09.2013 of the High Court and direct that 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
F 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.

    D.G.                                           Appeals allowed.