W.A.No.2912 of 2019 and C.M.P.No.18825 of 2019

R.SURESH KUMAR,J.

AND

K.KUMARESH BABU,J.

(Order of the Court was made by R.SURESH KUMAR.,J.)

How a teacher in the cadre of B.T. Assistant or a graduate teacher shall be appointed in a High School or a Higher Secondary School run by the Chennai Corporation is a prime question to be answered in this lis.  In order to dwell into the question, we have been trying our level best for the past more than four hearings to get the relevant rule position as well as factual position from the Chennai Corporation, still we could not make any progress.

2.The reason being to make this observation is that, when the case came up for hearing on 06.07.2023, we directed the respondent Chennai Corporation to produce the original files pertaining to preparation of panel for feeder category fit for promotion to the post of B.T. Assistant in various subjects in Schools run by the Chennai Corporation from the year 2011 till date, the relevant paragraph of the order is extracted hereunder:-

Mr.S.Gopinathan, learned Standing Counsel appearing for the Chennai Corporation is hereby directed to produce the original files pertaining to preparation of panel of the feeder category fit for promotion to the post of B.T.Assistant under various subjects in schools run by the respondent Corporation from the year 2011 till date.

2. The file must contain also the details as to periodical panel that has been prepared, out of those panels how many of them given promotion and especially in respect of the panel for the year 20132014, where the name of the appellant was found at S.No.31 whether has been considered for promotion, if so, till which serial number the promotion had been given. All these particulars must be in the file and those original files shall be produced before this Court for perusal.

Post the matter on 11.07.2023.

3.In response to the said order dated 11.07.2023, the learned Standing

Counsel appearing for the Chennai Corporation had submitted that, the

Corporation officials had brought only photocopy of the records, original had not been brought and produced even to the learned Standing Counsel for perusal and production of the same before this Court.

4.On that day, because of the attitude on the part of the respondent

Corporation we adjourned the matter as requested by the learned Standing Counsel, of course on cost of Rs.5,000/- which has been subsequently paid by the Corporation.

5.Thereafter, the case again came up for hearing on 19.07.2023, where, a specific question was asked that, between 2013 till date, for about a decade, whether any vacancy in B.T. Assistant especially in the Maths Subject had arisen. It was the answer given on behalf of the Chennai Corporation by the learned counsel on the basis of the instant instruction that, from 2013 till date around 400 such B.T. Assistant vacancies have arisen.  Out of which the exact figure as to the B.T. Assistant Maths is not known but none of the 400 vacant posts so far have been filled up.

6.After hearing the said submission made on behalf of the Chennai Corporation, on 19.07.2023 we passed the following order:

5.If this is the state of affairs, it is a shocking revelation to this Court on behalf of the respondent Corporation that 400 B.T. Assistant posts which are vacant from 2013 till date in the Schools run by the respondent Corporation if are kept vacant and not have been filled up despite eligible candidates are available at the panel to that effect which had already been prepared, it is a serious lapse on the part of the respondent Corporation.

6. In this context, if these number of B.T. Assistants have not been filled up and in those Schools if there are no Teachers like B.T. Assistant to the extent of 400 in numbers, that will certainly impact and hamper the study of thousands of students who are studying in various Schools run by the respondent Corporation.
7. Therefore, this Court wants an explanatory affidavit to be filed on behalf of the respondent Corporation either by the 1 st respondent or by the 2nd respondent, where, the following details must be provided:
   • How many Schools are being run by the

respondent Corporation, the various category of the Schools like Primary School, Middle School, High School and Higher Secondary School and in those Schools insofar as B.T. Assistant posts are concerned, how many posts have been sanctioned, out of the sanctioned posts in various subjects of B.T. Assistant, how many posts are vacant.

• If 400 plus vacancies are available in B.T. Assistant posts for the past about 10 years, why no such steps had been taken by the respondent Corporation to fill up those posts by giving promotion to the eligible candidates as well as by any other method of appointment as per the rule which governing the Service Conditions of the Teachers working in the

Corporation Schools.

• The School wise vacancy, zone wise vacancy and overall vacancy of B.T. Assistants as on date as well as the vacancy that arise every year from 2013-2014 till date must be provided.
• It should also provide the details of how many vacancies that arose in B.T. Assistants in all subjects including the Maths subject from the academic year 2009- 2010 till 2012-2013 and in those years if those vacancies were filled up, what was the method adopted by the respondent Corporation must be spelt out in the said report.

8. With all these particulars a detailed status report shall be filed either by the 1 st respondent or the 2 nd respondent during the next hearing date. For the said purpose, post the matter on 26.07.2023. It is made clear that, no further adjournment would be given for filing such a report, therefore if such a report is not filed, the respondents 1 and 2 shall appear before this Court.

7.In response to the same, the Commissioner, Chennai Corporation has filed a report dated 25.07.2023, where, according to the Commissioner, there are 119 Primary Schools, 92 Middle Schools, 38 High Schools and 32 Higher Secondary Schools being run by the Chennai Corporation and the total sanctioned B.T. Assistant post is 1345.

8.After giving these figures the report has further stated about the vacancy that was available in each year from 2009-2010 till 2013-2014, where bulk number of vacancies have been filled up by way of unit transfer.

9.When this was specifically asked by this Court as to on what basis the unit transfer appointment has been made, it  was pointed out that, out of 100 vacancies 50% would be filled up by way of promotion from the feeder category i.e., from Secondary Grade Assistant to B.T. Assistant.  For the remaining 50% it would be made by the direct recruitment or by unit transfer by the Teachers Recruitment Board [TRB].  A relevant portion of the report of the Commissioner of Corporation dated 25.07.2023 in this regard is as follows:

 It is respectably submitted that the unit transfer or appointment by the Teacher Recruitment Board (TRB) out of 50:50 ratio, adopted as per the

G.O.Ms.No.720, Education Department, dated 28.04.1981. 50% of the BT Asst posts filled up by promotion from the Secondary Grade Teacher working in the Corporation by drawing a panel.  The remaining 50% would be filled up by direct appointment or Unit transfer by TRB.  From 2020 onwards the ratio of 50:50 appointment or unit transfer by the TRB covered under the G.O.Ms.No.12 School Education (E.E.-1(1)) dated 30.01.2020 and G.O.Ms.No.13, School Education (S.E.-3(1)) dated

30.01.2020.

10.Since that was the stand taken by the Corporation with regard to the method of appointment or to fill up the post of B.T. Assistant in the

Schools run by the Chennai Corporation, we decided to implead the Teachers Recruitment Board as one of the party respondent in the lis. Accordingly, by our order dated 26.07.2023 we impleaded the TRB as one of the party respondent to whom the notice has also been served and the TRB have been directed to file a status report with supporting documents with regard to the stand that has been taken by the Chennai Corporation for filling up of 50% B.T. Assistant post by the TRB either by direct

recruitment or unit transfer.

11.In response to our query dated 26.07.2023 posed on the TRB, the 4^th  respondent/TRB has filed a status report dated 12.09.2023 signed by the member of the TRB where inter alia, the following has been stated:

4.It is submitted that the Board carries out the

work of selecting suitable candidates for the notified vacant posts of various types of Teachers indented by the User Department according to rules and Govt., Orders in force.  After selection process, the name lists of successful candidates are sent to the User

Department.  These are the sole function of this Board.

5. It is submitted that further, the only function of TRB is to select the suitable candidates. After appointment of Teachers, the Board is in no way involved in the Unit Transfer of Secondary Grade Teachers, Special Teachers, B.T., Assistants and PG Assistants. It is humbly informed that Unit Transfer is ordered by the Departments concerned. 

12.Relying upon these averments, Mr.Sathish Kumar, learned

Standing Counsel appearing for the TRB would contend that, in the year

2009-2010 certain vacancies in B.T.Assistant have been notified by the Chennai Corporation to be filled up by way of direct recruitment and the tentative list of candidates selected by the TRB provisionally for appointment in subject wise i.e., called Tamil, English, Mathematics,

Physics, Chemistry, Botany, Zoology and History had been separately sent only for the year 2009-2010.  In respect of the year 2013-14 certain vacancies have been notified for filling up B.T. Assistant post for Tamil, History and Geography. In order to fill up those posts,  selection has been made and it has been sent to the Corporation by sending provisional list subject wise on 23.10.2014.

13.Thereafter, according to the TRB, no selection by way of direct recruitment had been made to fill up the post of B.T.Assistant for the Chennai Corporation Schools.

14.In this context, it is the stand of the Chennai Corporation as submitted by Mr.S.Gopinathan, learned Standing Counsel for Chennai

Corporation based on the oral instructions given by Mr.V.Munian, Assistant

Educational Officer and Mr.Jacob, Senior Law Officer, Greater Chennai

Corporation that, every year based on the sanctioned strength of B.T. Assistant post since 50% are to be filled up by way of promotion, such promotion would be given from the feeder category i.e. Secondary Grade

Assistant.  For the remaining 50% posts, it is meant for direct recruitment to be undertaken by TRB, if there has been any delay caused  by the TRB in filling up the posts by way of direct recruitment and if the delay caused is for more than three years, as by which i.e. at the end of three years from the date of sanctioning, the posts would get lapsed,  in order to avoid such lapse of the post, the Corporation would venture into fill up the post by adopting the method called Unit Transfer.

15.Under the method of Unit Transfer, according to the Chennai Corporation as per the instructions given by the two Officers as submitted by the learned Standing Counsel for the Chennai Corporation, any Teacher working in any School like Government School, Adi Dravidar Welfare

Department School, Social Welfare Department School, etc. after getting

NOC from their employer can directly make an application through the School Education Department in a particular subject concerned in the remaining 50% vacancy arise for particular year and based on that kind of applications come from those teachers, they would be appointed as B.T. Assistant in the vacant post subject wise in the Chennai Corporation

Schools by way of appointment through transfer, this is the method called as Unit Transfer.

16.It was also the stand of the Chennai Corporation that, this kind of Unit Transfer would be possible as per the Rule issued under G.O.Ms.No.720, Education Department dated 28.04.1981.

17.We have gone through  G.O.Ms.No.720, Education Department dated 28.04.1981, which Rule become necessitated to govern the service conditions of Post Graduate Teachers, Headmasters and Headmistress as well as Physical Director and Directress in Higher Secondary Schools.

18.In the year 1978-79, number of High Schools were upgraded as

Higher Secondary School as per the policy decision taken by the State

Government.  Therefore, in order to frame a Rule for the post called Headmasters, Headmistress, Teachers in academic subjects and languages for Higher Secondary Standards and Physical Director posts were sanctioned by the Government for those Schools.  Therefore, to streamline their service  G.O.Ms.No.720, Education Department dated 28.04.1981 was issued which is nothing but a Special Rule called the “Tamil Nadu Higher

Secondary Education Service Rule”, under which aforestated posts called Headmasters, Headmistress, Teachers in academic subjects and Teachers in languages for Higher Secondary Standards, Physical Director and Physical Directress in Higher Secondary Schools are governed.  This has been specifically mentioned in Rule 1 under the caption ‘Constitution’.

19.Therefore, G.O.Ms.No.720, Education Department dated 28.04.1981 is nothing to do with the service conditions, including appointment or method of appointment with regard to B.Ed Teacher or Graduate Teacher.

20.That apart, there is a service rule framed by the Chennai Corporation called Chennai Corporation Education Service Rules, 1970, by issuance of  G.O.Ms.No.248, Rural Development and Local Administration Department dated 18.02.1970.

21.This Rule governs only two categories of services, i.e.  Assistant Educational Officers, Headmasters and Headmistress Grade-I.

22.This Rule necessarily to be applied only in respect of the Officers in the Education Department of the Chennai Corporation and not for any teaching faculty like B.T. Assistant.

23.Apart from these Rules, no other Rules seems to have been framed or made available to the Chennai Corporation for governing the service conditions of B.T. Assistant including the method of appointment.

24.When that being the position, if it is the stand of the Chennai Corporation that this B.T. Assistants can be appointed by two methods, one is by promotion from the feeder category for 50% and another one is for the remaining 50% by way of direct recruitment by the TRB or by Unit Transfer by TRB is concerned by which Rule this kind of method they have taken out and being implemented is not known.

25.The method hitherto being adopted by the Chennai Corporation to

fill up the post of B.T. Assistant to the extent of 50% of the vacancies by way of Unit Transfer has not been backed by any service rule.

26.Moreover, the direct recruitment or Unit transfer is being undertaken by the TRB is the stand taken by the Chennai Corporation in the report filed by the Commissioner as stated supra.  But that is not the case as has been clarified by the TRB by its status report filed in this regard signed by the member of the TRB.

27.When that being the position on what basis the appointment to fill up the vacancies of B.T. Assistant post in schools run by the Chennai Corporation are made for all these years are still under cloud as that has not been cleared by the respondent Corporation.  Therefore, these factual matrix as we have given herein above in detail has still raised several questions.

Therefore, we would like to have a written reply from the Chennai

Corporation to be given on the following queries:

• What is the relevant service rule under which the B.T. Assistant post in the Schools run by the Chennai Corporation are filled up?
• If no such rule, under what basis all these years such appointments are made either by way of promotion or by way of direct recruitment or the so-called method of unit transfer?
• When the unit transfer is not supported by any service rule, on what basis such unit transfer method is adopted by the Chennai Corporation?
• If the unit transfer method, as has been averred in the report filed by the Commissioner of Chennai

Corporation, claimed to have been undertaken by the TRB has been clarified by the TRB as stated supra, on what  basis such information had been made before this Court by the Chennai Corporation that to, by the very Commissioner of Corporation himself?

• If at all by the so-called method of unit transfer, Teachers from Government Schools and other Department Schools like Adi Dravidar Welfare Department Schools, Social Welfare Department Schools, are taken up by way of appointment by transfer by the application submitted through the Education Department, whether such kind of method of unit transfer appointment is approved by any service rule? If so, the details can also be stated.

28. Answer to the aforesaid queries shall be made by the Chennai

Corporation through its Commissioner with supporting documents/rules.

For the afore-stated compliance, post this matter on 25.09.2023.

(R.S.K.,J.)               (K.B., J.)

                                                                         19.09.2023

Index: Yes/No

Speaking Order/Non Speaking Order

Neutral Citation:Yes/No

pbn

Note: Order copy to be issued today

R.SURESH KUMAR., J. and K.KUMARESH BABU.,J. pbn W.A.No.2912 of 2019

19.09.2023