REPORTABLE  

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.                 OF 2009  (Arising out of SLP (C) No. 25097 of 2008)

T. Nadu Computer SC B.Ed. G.T. Welf. Society                      ..Appellant

Versus

Higher Sec. Scl. Computer Tech. Assn. & Ors.           .. Respondents

WITH

CIVIL APPEAL Nos.                 OF 2009  (Arising out of SLP (C) Nos. 26768-26769 of 2008)

JUDGMENT

Dr. Mukundakam Sharma, J.

 1. Leave granted.

2. The  present  appeals  were  filed  and  directed  against  the  common  

Judgment and Order passed by the Division Bench of the Madras High Court

allowing the writ appeals filed by Respondent No. 1 and thereby dismissing  

the writ petitions filed by the appellant herein.  The writ petitions were filed  

by the appellant herein contending, inter alia,  that prior to 1999, graduates  

with  Post  Graduate  Diploma in  Computer  Applications  from a  recognized  

University  were  appointed  by  Parents  and  Teacher  Association  of  various  

schools  as  Computer  Teachers  in  the  said  schools.   In  the  year  1999,  the  

Government took a policy decision to bring out a Scheme to offer computer  

education as a subject in about 1200 Government Higher Secondary Schools  

from the academic year 1999-2000.  On 17.3.1999, the Chief Minister, while  

presenting the Budget for the year 1999-2000 before the Legislative Assembly  

informed on the floor of the State Assembly that the Government had decided  

to  utilize  the  maximum  of  contemporary  innovation  in  the  information  

Technology  for  economic  and  social  development  of  the  State  and  thus  

proposed  to  draw  a  scheme  for  offering  Computer  Education  based  on  

curriculum designed by experts  as  an  elective  subject  in  the  11th and  12th  

standards  in  all  the  1200  higher  secondary  schools  in  the  State  from the  

academic year 1999-2000.  Pursuant to the aforesaid statement and assurance  

of the Chief Minister and the policy decision of the Government, the State  

Government on 19.03.1999 invited sealed tenders from reputed organizations  

and computer training centers for leasing out computer hardware and software  

and for providing computer training in 1200 Higher Secondary Schools  in  

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four regions, namely, Chennai, Trichy, Coimbator and Madurai for five years  

by  engaging  qualified  instructors  of  their  choice.  Thereafter,  the  State  

Government entered into a contract with the Electronic Corporation of Tamil  

Nadu (ELCOT) for a period of five years giving them the responsibility to  

take all the steps for conducting the computer classes in about 1200 Higher  

Secondary Schools.   

3. Pursuant  to  the  instructions  issued  by  the  State  Government,  the  

ELCOT selected many agencies to fill up the vacancies by selecting qualified  

Computer Instructors.  Such Computer Instructors were thereafter came to be  

appointed in two phases.  In Phase-I, 1332 instructors were appointed in the  

year 1999 and in Phase-II 1062 Instructors were appointed in the year 2000,  

on  a  consolidated  salary  of  Rs.  1,500/-,  which  was  later  on  enhanced  to  

Rs. 2,000/- per month.   

4. In 1999, a writ petition came to be filed before the Madras High Court.  

While dismissing the said writ petition on 23.04.1999, the Madras High Court  

observed  that  in  future,  if  the  Government  creates  any  permanent  or  

sanctioned posts  to impart  education on Computer  Science in  Government  

Higher  School,  such  posts  should  be  filled  up  by  recruiting  candidates  

sponsored  by  the  Employment  Exchange  and  by  following  the  rule  of  

Reservation.   

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5. The aforesaid contract entered into with the private agencies came to an  

end by February, 2005.  However, considering the welfare of the students, the  

contract  employees  were  allowed  to  continue  to  work  in  the  Government  

Schools.  Thereafter, the Government had taken a policy decision in the year  

2006 to have one post of “Computer Instructor” in every Government Higher  

Secondary  School  i.e.  in  all  the  1880  Government/Corporation/District  

Municipalities/Municipalities Higher Secondary Schools.  Consequent thereto  

a  G.O.  Ms No.  187,  dated  04.10.2006 was  issued,  creating  1880 posts  of  

Computer Instructors for the aforesaid various schools.  It was also stated that  

the aforesaid posts of Computer Instructors would carry a pay scale of Rs.  

5500-175-9000.  It was also mentioned in the said Memorandum that all the  

aforesaid  posts  which  are  created  would be permitted,  on  temporary basis  

subject to the rules in force and would be valid for one year from the date of  

its  filling  up.   In  continuation  of  the  aforesaid  policy  decision  another  

Memorandum was issued intimating the decision of the Government that the  

Government  itself  can  appoint  computer  instructors,  for  the  purpose  of  

implementing  computer  education  scheme  in  all  such  schools.   A  broad  

criteria as to how selection process would take place was also conveyed in the  

aforesaid  letter.   It  was stated in the  said communication  that  Special  test  

would be conducted by the teachers’ selection Board for computer teachers  

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who are serving in Government High Schools and that selection would be  

made on the basis of the marks obtained.  It was also made clear by the State  

Government  in  the  said  communication  dated  04.10.2006  that  educational  

qualification  like  B.Ed.  for  selection  of  computer  instructor  would  not  be  

insisted upon.  On 10.10.2006 the State Government took a decision that those  

Computer Instructors appointed by the contractors and who were in service on  

the dates when the Government took over the responsibility of payment of  

their  salary  in  Government  schools  immediately  after  the  expiry  of  the  

contract period would be eligible to appear in the Special Test to be conducted  

by  the  Teachers  Recruitment  Board.    It  was  also  stated  therein  that  the  

minimum qualifying marks would be 50%.   

6. The  decision  of  the  Government  to  dispense  with  the  B.Ed.  

qualification was challenged by the qualified B.Ed. graduates in Computer  

Science before the High Court of Madras.  Such qualified B.Ed. graduates in  

Computer Science filed a batch of writ  petitions before the High Court of  

Madras.  A learned Single Judge of the High Court while disposing of the writ  

petitions held that the said Government M.S. Letter No. 188, dated 04.10.2006  

is unsustainable and consequently quashed the same.  Aggrieved by the same  

the Higher Secondary School Computer Teachers Association preferred writ  

appeal  whereas  the  Government  of  Tamil  Nadu  preferred  a  separate   

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Writ Appeal.  All the aforesaid appeals were taken up for consideration by the  

Division Bench of the High Court.  By the impugned order dated 22.08.2008,  

the Division Bench of the High Court set aside the order of the learned Single  

Judge holding that the learned Single Judge was not justified in setting aside  

the policy decision of the Government.  It was held by the Division Bench of  

the High Court that it would accept the statement of the State that the present  

recruitment  is  a  special  recruitment  for  absorption  of  existing  Computer  

Instructors, who were lawfully engaged with due sanction of the Government  

and  that  for  employment  of  future  vacancies  for  the  posts  of  Computer  

Instructors, the recruitment would be made from all eligible applicants (with  

B.Ed.  qualification)  without  any  preference  being  shown  to  the  already  

employed Computer Instructors in Government Higher Secondary School and  

that such recruitment would be made on employment on seniority basis.  The  

High Court accepted the aforesaid statement of the Government, which was  

taken as genuine and reasonable and consequent thereto the High Court issued  

a direction to the Governmental authorities that the entire process of selection  

on the basis of special drive examination would be conducted strictly only as a  

one  time  measure.   It  was  also  directed  that  the  process  of  holding  the  

examination shall be completed within six months from the date of receipt a  

copy of the judgment and that the left over vacancies and the other vacancies,  

if  any,  arising  in  the  meantime  would  be  filled  up  within  three  months  

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thereafter,  as  has  been  assured  before  the  High  Court,  making  open  the  

recruitment to all eligible B.Ed. and M.Ed. candidates and giving employment  

on seniority basis, without any preference to the already employed Computer  

Instructors in Government Higher Secondary Schools.

7. Being aggrieved by the Judgment and Order dated 22.08.2008 passed  

by  the  Division  Bench  of  the  High  Court,  the  present  appeals  have  been  

preferred by the appellants herein.

8. While issuing notice on 13.10.2008, this Court passed an interim order  

holding and observing that the appointment of Computer Instructors pursuant  

to  the  orders  passed by the  High Court  allowing the State  Government to  

proceed with the process of appointment of Computer Instructors would be  

subject to the result of the appeals.  The effect of the aforesaid order was that  

there was no bar on the part of the State Government to proceed and continue  

with  the  appointment  process  of  such  Computer  Instructors  but  would  be  

subject to further orders of this Court.  Consequently the State Government  

announced the date of the Special Recruitment Test as 12.10.2008, which was  

incidentally a Sunday.   

9. The said test was held on the said notified date and the result of the  

examination was also published.  A list of the candidates, who appeared and  

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succeeded in the said test, was also published.  It transpires from the records  

placed  before  us  that  a  total  of  1714  candidates  appeared  in  the  Special  

Recruitment Test in terms of the criteria laid down by the Selection Board.  

The minimum qualifying marks for the posts of “Computer Instructors” was  

fixed as 50% i.e. 75 marks out of total 150 marks.  The said qualifying criteria  

was laid down in the meeting held on 10.10.2006 wherein representatives of  

the Government was also present.  On the night of 12.10.2008, the respondent  

No. 3 published the list of provisionally selected candidates for appointment  

to the post of Computer Instructors based on the Special Recruitment Test on  

the Internet.  While publishing the said marks of the candidates, it was made  

clear  that  all  candidates,  who  have  secured  35%  marks  in  the  Special  

Recruitment  Test  would  be  called  for  Certificate  Verification.   It  is  thus  

established, that the State Government reduced the minimum qualifying marks  

for the post of Computer Instructors to 35% which is contrary to an earlier  

decision taken in a meeting held on 10.10.2006 that the minimum qualifying  

marks for filling up the posts of Computer Instructors would be 50% i.e. 75  

marks out of total 150 marks.   

10. It  is  thus  established  that  the  Government  changed  the  rules  of  

recruitment and terms and conditions of appointment in the mid-way after the  

selection process was initiated.  The said decision was taken on a Sunday i.e.  

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on 12.10.2008, after the candidates had taken their exams.  It also transpires  

from the record that out of 1686 candidates only 857 candidates had in fact  

secured 50% marks i.e. 75 marks out of 150 marks whereas 829 candidates  

secured  marks  between  35% and 50% i.e.  less  than  75  marks  out  of  150  

marks.  It  is also indicated from the said result  published that out of 1714  

candidates, who had taken the Special Recruitment Test it is 1686 candidates  

who  were  found  to  have  secured  more  than  35%  marks,  and  they  were  

provisionally selected for certificate verification.   

11. The appellants have challenged before us the aforesaid alleged arbitrary  

decision of the Government in conducting a special recruitment test against  

the Rules and Guidelines issued for the recruitment of Computer Instructors  

and also by altering the minimum qualifying marks from 50% to 35% so as to  

absorb a larger number of candidates of its choice and thereby violating its  

own norms and guidelines.   

12. We heard learned counsel  appearing for  the  parties  on the aforesaid  

issues  which  were  raised  before  us.  The  contract  employees  who  were  

appointed  by  the  contractor  were  discharging  their  duties  as  Computer  

Instructors  in  the  Government  Schools  for  a  number  of  years  on  a  

consolidated pay.  Their plea for regularization of their service was, however,  

rejected by the Court holding, inter alia, that they have no such vested right to  

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claim for such regularization.  However, in order to give them one opportunity  

to get themselves properly selected and then absorbed against regular posts,  

one  time  opportunity  was  given  to  them  by  the  Government  for  getting  

themselves selected and then recruited and absorbed considering the fact that  

they  were  engaged  and  paid  from the  fund  released  by  the  Government.  

Qualifications and norms for such Special Recruitment Test for the post of  

Computer Instructors were also laid down by issuing a policy decision and  

instructions  wherein  it  was  provided  that  the  minimum  qualifying  marks  

would  be  50%.   The  Government  on  04.10.2006  laid  down  the  said  

instructions whereas the Special Recruitment Test was scheduled to be held  

on 12.10.2008, which was a Sunday.  The test as scheduled was also held in  

which  undisputedly  only  894/857 candidates  had received  more  than 50%  

marks whereas 906/829 candidates secured marks below 50% but above 35%  

and they have also been shown as qualified in the test in terms of the amended  

decision taken by the Government of Tamil Nadu on the night of 10.10.2006  

i.e.  after  the  recruitment  process  was  started  and  even  after  the  Special  

Recruitment Test was held.   

13. The appellants herein have challenged the entire process of selection  

contending, inter alia, that such a Special Recruitment Test could not have  

been held for giving advantage to contract  employees,  who were not even  

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qualified persons to be appointed as such Computer Instructors in Government  

schools.  The rules provide that such posts of Computer Instructors, which are  

to be filled up as against permanent and sanctioned posts to impart education  

in computer science in Government Higher Secondary School would be filled  

up by following the rules of reservation in accordance with the existing Rules  

for  such appointment.   It  was  submitted  by  the  counsel  appearing for  the  

appellants  that  entire  action  of  holding  the  Special  Recruitment  Test  for  

appointment of Computer Instructors was illegal since it was held in violation  

of the order of the Madras High Court dated 23.04.1999 in W.P. No. 6565 of  

1999, wherein the High Court has specifically observed as follows:

“In  future  if  the  Government  creates  any  permanent or sanctioned posts to impart Computer  Science in Government Higher Secondary School,  no doubt such posts shall be filled up by recruiting  candidates  sponsored  by  the  Employment  Exchange  and  by  following  the  rules  of  reservation”.

14. Counsel appearing for the respondents, however, submitted that since  

these  contract  employees  have  been  working  for  a  very  long  time  in  the  

Government Schools,  therefore,  the  Government  had taken the  decision  to  

reduce the minimum qualifying marks to see that at least some of them who  

could qualify in the Special Recruitment Test could be recruited and absorbed  

so  as  not  to  deprive  them  from  getting  absorbed  in  the  Government  

employment through a regular process.   It was also submitted that out of 1714  

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candidates,  who  have  written  the  Special  Recruitment  Test  only  894  

candidates could receive more than 50% marks whereas 906 candidates could  

obtain less than 50%, which was minimum qualifying marks prescribed by the  

Government in its earlier policy decision but obtained more than 35% marks.  

Consequently, it was submitted that the Government thought it fit that the said  

minimum qualifying marks should be reduced to 35% so as to absorb more  

people,  who  are  still  working  in  the  Government  Schools  as  Computer  

Instructors.   

15. We  have  considered  the  aforesaid  rival  submissions  of  the  counsel  

appearing for the parties in the light of the records placed before us.  It is  

clearly established from the records that in order to give one time opportunity,  

a  Special  Recruitment  Test  was  ordered  to  be  held  for  selection  and  

recruitment  as  also  absorption of  existing Computer  Instructors.   The said  

decision was taken on sympathetic  consideration and with the intention of  

doing justice to those existing Computer Instructors,  who were working in  

Government Schools for a very long time.  Such a recruitment drive and test  

was  held  by  laying  down Rules  of  Recruitment  thereby  providing  a  level  

playing field for all concerned.  Prior to holding of the said Test guidelines  

were formulated through a policy decision laying down the criteria that the  

minimum qualifying marks in the said test would be at least 50%.  The said  

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guidelines  of  Recruitment  as  laid  down  through  a  policy  decision  was  

sacrosanct and was required to be followed for all practical purposes even if  

we  accept  that  the  Government  could  have  filled  up  the  said  posts  of  

Computer Instructors by holding a Special Recruitment Test of the aforesaid  

nature as one time exception.  We, however, cannot hold that the subsequent  

decision of the Government thereby changing qualifying norms by reducing  

the  minimum  qualifying  marks  from  50%  to  35%  after  the  holding  the  

examination and at the time when the result  of the examination was to be  

announced and thereby changing the said criteria at the verge of and towards  

the  end  of  the  game,  as  justified  for  we  find  the  same  as  arbitrary  and  

unjustified. This Court in Hemani Malhotra vs. High Court of Delhi [ 2008  

(7) SCC 11 ] has held that in recruitment process changing rules of the game  

during selection process or when it is over are not permissible.  

16. Thus we hold and declare that those candidates who had secured more  

than 50% qualifying marks would he held to have qualified in the said test and  

the remaining candidates would be treated as unsuccessful/failed and therefore  

became ineligible to be permanently recruited and absorbed in Government  

Schools.  However, we give a liberty to the State Government to hold a fresh  

examination/recruitment test to fill  up all  the remaining posts of Computer  

Instructors as against sanctioned and vacant  posts of Computer Instructors,  

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which we are told would be more than 1000, by holding a recruitment test in  

terms of assurance given to the High Court.  We, however, give liberty to  

those unsuccessful/failed candidates, who have secured less than 50% marks  

and more than 35% marks in the earlier Special Recruitment Test and desire  

to apply as against the advertisement, which shall be issued in newspapers and  

also by calling names from the Employment Exchange.  The candidates, who  

had applied and appeared in the Special Recruitment Test and obtained above  

35% marks would accordingly be allowed to appear if they so apply against  

the advertisement to be so issued in terms of this order although they may not  

have  B.Ed.  Degree  which  shall,  however,  be  treated  only  as  one  time  

concession and exception.   

17. Consequently,  we  give  the  following  directions  to  the  State  

Government that:

a) Only  those  candidates  who  had  secured  more  than  50%  qualifying  

marks in the Special Recruitment Test shall be treated as qualified and  

recruited as Computer Instructors and they shall  be so absorbed and  

their service shall be so regularized in accordance with law;

b) The remaining candidates who had secured less than 50% qualifying  

marks  but  above  35%  marks  should  be  declared  and  held  to  be  

unsuccessful and failed in the said Special Recruitment drive but they  

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would be allowed to appear in the next Recruitment Test to be held for  

filling up the remaining vacant posts of Computer Instructors without  

insisting upon them to have B.Ed. degree as one time exception and  

concession;

c) The  State  Government  shall  also  hold  the  said  test  by  inviting  

applications through issuing an advertisement and also allow candidates  

to take the test sponsored by the Employment Exchange.  In the said  

test  all  other  rules  of  appointment  for  such  post  and  the  rules  of  

reservation  would  also  apply.   The  only  exception  would  be  the  

candidates  who  had  received  more  than  35%  marks  in  the  earlier  

Special  Recruitment  drive  but  less  than  50%  marks  which  was  

qualifying marks may not have B.Ed. degree, which would be treated as  

one  time  exception  for  them  as  they  were  working  as  Computer  

Instructor.

18. In  the  light  of  the  aforesaid  observations  and directions,  the  present  

appeals are allowed to the aforesaid extent.

………..…………………….CJI

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………………………………..J.              (P. Sathasivam)

………………………..………J. (Dr. Mukundakam Sharma)

New Delhi, July  9, 2009

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