Simultaneously, the Chennai Corporation shall take all effective steps and endeavours to prepare and release the seniority list as of now among the Secondary Grade Teacher category, B.T. Assistant category as well as the P.G. Assistant category. Based on the seniority list to be published, action shall be taken by the Chennai Corporation to fill up the vacancies of 50% earmarked for promotees categories from the respective feeder categories. Such an exercise shall be completed by the Chennai Corporation within a period of three months from the date of receipt of a copy of this order. (iv) In order to evaluate the progress of the aforesaid directions, this Court wants the Chennai Corporation to file a status report, hence this Writ Appeal shall be heard again on 23rd November, 2023. 32. Post the matter on 23.11.2023 as first case. [R.S.K. J.] [C.K.J.] 12.10.2023 Note : Issue order copy on 13.10.2023 Sgl R.SURESH KUMAR, J. and C.KUMARAPPAN, J. Sgl W.A.No.2912 of 2019 and C.M.P.No.18825 of 2019 12.10.2023

W.A.No.2912 of 2019 and C.M.P.No.18825 of 2019
R.SURESH KUMAR, J.
and
C.KUMARAPPAN, J.
[Order of the Court was made by R.SURESH KUMAR, J.]
In our order dated 19.09.2023, we have raised the following questions to the Chennai Corporation:
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:
1) What is the relevant service rule under which the B.T. Assistant post in the Schools run by the Chennai Corporation are filled up?
2) 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?
3) When the unit transfer is not supported by any service rule, on what basis such unit transfer method is adopted by the Chennai Corporation?
4) 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?
5) 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.
2. In response to the said queries raised by us, the Commissioner of Chennai Corporation has filed an additional report dated 09th October, 2023. Inter alia in the said report, the Corporation has stated that, there is
no specific and separate Education Service Rule for Chennai Corporation. They followed G.O.(Ms).No.753, Education Department, dated 16.07.1985, G.O.(Ms).No.209, School Education Department, dated 08.05.1997 and G.O.(Ms).No.176, School Education Department, dated 17.12.2021, in respect of first query raised in our order, the said reply had been given. Insofar as the second query, the Corporation has replied stating that, every year vacancy arises from either by expiry or retirement or voluntary retirement and the teachers choosing unit transfer from School Education Department to Greater Chennai Corporation. The 50% of the resultant vacancies are filled up by promotion and 50% of vacancies by direct recruitment and by unit transfer.
3. It has further been reported that, for direct recruitment, it is donefor all categories by Teachers Recruitment Board on request of Greater Chennai Corporation which arrives at the yearly vacancies.
4. It has further been stated that, therefore the Greater Chennai Corporation Education Department is following the rules and regulations issued by School Education Department for promotion in all categories of Teachers and Headmasters including the unit transfers as there is no separate rule framed by the Greater Chennai Corporation Education Department for promotion and unit transfer.
5. For Query No.3, it has been stated in the report that, as per G.O.(Ms).No.209 dated 08.05.1997, the unit transfers are made. Also it has been stated that, in the current year G.O.(Ms).No.176 issued by the School Education Department, dated 17.12.2021 is followed.
6. For Query No.4, among other things, it has been stated by the Commissioner of Greater Chennai Corporation that, as of now, the total number of Teachers in the Corporation Schools are 815 and the total vacancies are 195. However, vide G.O.(Ms).No.48, dated 01.04.2023, certain Schools have been extended, if those extended Schools also are put together, the total vacancy altogether would be 499.
7. For Query No.5, it has been stated by the Commissioner that, the unit transfer is made under the administrative control of Greater Chennai Corporation following the guidelines issued by the School Education Department. It has again been reiterated that, the Teachers are eligible to
move from School Education Department to Greater Chennai
Corporation Schools and vice-versa. As there is no separate Service Rule adopted by the Greater Chennai Corporation, it followed the guidelines issued by the School Education Department.
8. It has further been explained that, for the purpose of unit transfer, applications would be called for across the state to fill up the resultant vacancies of the Schools in Greater Chennai Corporation and based on such applications as well as the no objection from the parent Department, appointments would be given to those Teachers by way of unit transfers in the Schools of the Chennai Corporation. These are the reply that has been given in the additional report of the Commissioner of
Greater Chennai Corporation i.e., the 1st respondent herein.
9. In the aforesaid context, if we look at the G.O.(Ms).No.753,
G.O.(Ms).No.209, G.O.(Ms).No.176, it could be found out that, the G.O.(Ms).No.753, School Education Department, dated 16.07.1985 has been superseded by the G.O.(Ms).No.13, School Education [S.E.3(1)] dated 30.01.2020. Under the said G.O., a rule has been framed with Special Rules for the Tamil Nadu School Educational Subordinate
Service. This rule was framed in supersession of the Special Rules for the Tamil Nadu School Educational Subordinate Service which was in fact issued under G.O.(Ms).No.753, therefore the rule framed under G.O.(Ms).No.753 has already been superseded 3 years back despite that the Corporation still banking upon G.O.(Ms).No.753.
10. Even under the present G.O. i.e., G.O.(Ms).No.13, School
Education Department dated 30.01.2020 is concerned, the Graduate
Teacher in Subjects are to be appointed only (i) by Direct recruitment; or (ii) by Promotion from any other post; or (iii) (a) Recruitment by transfer from post of Superintendent in School Education Department, otherwise if no candidate is available for appointment by the method (a) above, i.e. aforestated method, recruitment by transfer from the posts of Assistants in School Education Department also would be made possible.
11. Even under the present rule which in fact is not applicable to the Chennai Corporation and it would be applicable only to Tamil Nadu School Education Service, the first method to appoint the Graduate Teacher is by direct recruitment thereafter by promotion, after exhausting these methods only, they can refer for any other method like recruitment by transfer.
12. It is further to be noted that, out of the 100 post, 50% shall be filled up by direct recruitment, 48% by promotion and only 2% by recruitment by transfer.
13. Even though this rule is not applicable to Chennai Corporation, assuming that for the time being they adopted this rule, it does not suggest the entire direct recruitment quota to be filled up by way of appointment by transfer which they otherwise called as ‘unit transfer’.
14. However, the fact remains that, for the past about 10 years, no such direct recruitment seems to have been made for the post of B.T. Assistant Teacher in the Chennai Corporation Schools. This become evident from the status report filed by the 4th respondent/Teachers Recruitment Board vide their report dated 12.09.2023, where, in para 7 they have stated that, lastly only in the year 2013-2014 the TRB vide letter dated 23.10.2014 sent the name list of selected candidates to the Chennai Corporation.
15. Thereafter, no such direct recruitment seems to have been made by the TRB at the request of the Chennai Corporation for their Schools.
16. Therefore, it become obvious that, for the past about a decade the Chennai Corporation in the 50% direct recruitment quota has not resorted to go for such direct recruitment, instead they have gone for unit transfer as a routine method to be adopted for filling up the 50% of the vacancies.
17. Yet another G.O. also has been relied upon by the Corporation i.e., G.O.(Ms).No.209 dated 08.05.1997. The said G.O. had been issued enabling the unit transfer among the Teachers of Municipality, Corporation and Township Schools and even that unit transfer was permitted for those Schools only as an adhoc arrangement till the rule is framed in this regard. The relevant portion of the G.O. reads thus:
“2.Mdhy; gy Mrphpah;fs; brhe;jff;huz’;fs;. FLk;gr; R{He;piy ,d;dgpw fhuz’f; spd; mog;gilapy; myF tpl;L myF khWtjw;F nfhhpf;iffs; bfhLj;j tz;zk; cs;sdh;/ tpjpfs; cUthff;g;gLtjw;F rpyfhyk; Mfyhk; vd;gJ jpz;zkhf bjhpej; epiyapy;
Mrphpahf; Sf;F mthf; s; nflF;k; ,lk; fhypahf ,Ue;Jk; gzp K:gg;pid ,Hff; rk;kjk; bjhptpf;Fk; epiyapy; myF tpl;L myF khWjy; bra;jpl kWg;gJ epahakhdjhf ,yi;y vd;W murhy; fUjg;gll; J/”
18. However, for the past 26 + years the State Government has not come forward to frame the Rules. Therefore, the said G.O.(Ms).No.209 is being used as a ‘tool’ for this adhoc appointments every year or at every time on routine basis.
19. G.O.(Ms).No.176 is concerned, it is not related to the appointment in Chennai Corporation nor unit transfer to Chennai Corporation as it speaks about the regular counselling to be conducted every year for the Teachers working in the Government Schools at various stations.
20. Therefore, it has become crystal clear that, the ChennaiCorporation though has been running several Schools at various level in the Greater Chennai Corporation jurisdictional area so far has not required the Government to have a rule to govern the service conditions of the number of Teachers working in the Schools of the Corporation.
21. Even the Government Orders which are sought to have been adopted by the Chennai Corporation are concerned, those Government Orders either is not allowing the Corporation to go ahead with such kind of unit transfers enmasse for the entire quota earmarked for direct recruitment or such Government Orders are not permitting even such enmasse unit transfer appointments of the direct recruitment quota as it has become evidenced in the latest G.O.(Ms).No.13, where 50% is earmarked for direct recruitment, 48% for promotion and 2% for such unit transfer.
22. This kind of proportion is to be taken note of, because such kind of unit transfer can be permitted only in exceptional circumstances due to the genuine difficulties being expressed by the Teacher concerned. Therefore, for enmasse appointment of 50% of the direct recruitment, this kind of unit transfer method can never be accepted. Therefore, the act of the Corporation in adopting such unit transfer appointment system invariably for all these years to fill up the entire quota of direct recruitment i.e., 50% of the vacancies cannot be stated to be in consonance with service jurisprudence as such kind of unit transfers would certainly affect the direct recruitment quota.
23. The reason being that, insofar as the direct recruitment appointment is concerned, it shall be made by inviting applications from open market to have the best talented persons by following the 69% communal reservation. However, if this direct recruitment quota are swallowed by these unit transfer appointees, such kind of direct recruitees from outside market can never be appointed in Chennai Corporation Schools and moreover, the 50% direct recruitment quota would be filled up without following the 69% reservation, that would go against the constitutional mandate.
24. Therefore, the method so far adopted by the Chennai Corporation cannot be approved under any circumstances in view of the prevailing legal position as well as the factual matrix.
25. However, Mr.S.Silambanan, learned Additional Advocate General appearing for the Chennai Corporation, on instructions would submit that, at present there are 499 posts in B.T. Assistant category are vacant in various Chennai Corporation Schools. Out of the 499, 50% vacancies are to be filled up by direct recruitment, the remaining 50% vacancies should be filled up by way of promotion from the feeder categories.
26. Out of this 499, 243 vacancies are earmarked as direct recruitment vacancies and those vacancies though have to be filled up only through direct recruitment by calling applications from the open market and such exercise has to be undertaken by the Teachers Recruitment Board with whom the Chennai Corporation already has contacted, in the meanwhile, because of the student strength suddenly increased in various Schools of the Corporation it had urgently needed some more Teachers to be employed, therefore, during last week, the Corporation went ahead of undertaking an unit transfer exercise, by which, 79 Teachers from various other units are appointed in Corporation
Schools to the post of B.T. Assistant by way of unit transfer.
27. However, this factor is disputed by Mr.G.Sankaran, learnedSenior Counsel appearing for the appellant stating that, only yesterday such counselling went on, but no orders have been issued, assuming if orders are issued, none of them so far joined in the respective posts in the Schools run by the Corporation.
28. Be that as it may, the said action on the part of the Chennai Corporation in going ahead with the unit transfer enmasse that too in 79 vacancies, when this case is being in a Part-heard stage, where, direction had already been given on 19.09.2023 itself to file a status report and only because of the request made by the Chennai Corporation counsel, time was given by this Court and the case is taken up today, is deplorable. Such a hasty decision taken and acted upon by the Chennai Corporation to go ahead with the unit transfer indicates that, Chennai Corporation is more interested in unit transfer method instead of direct recruitment for obvious reasons.
29. Such kind of action taken in going for unit transfer and appointing 79 Teachers under the said method without taking any orders from this Court or without informing this Court despite the matter is being Part-heard stage, is to be deprecated.
30. Be that as it may, since the learned Additional AdvocateGeneral submitted that, it is in the interest of student these 79 Teachers have been given appointment orders with a rider that such appointment is subject to the outcome of this writ appeal, this Court feels that, merely because such appointment orders were given to these 79 Teachers by way of unit transfer, that would not confer any right on them to be retained for ever in their service in the Chennai Corporation Schools.
31. The Chennai Corporation at this juncture therefore shall take the following steps urgently to tide over this situation to give a quietus, atleast hereafter, of this vexed issue:
(i) That the Chennai Corporation shall immediately request the Teachers Recruitment Board to initiate the recruitment process for filling up the 243 vacancies in B.T. Assistant meant for direct recruitment in Chennai Corporation Schools. On receipt of such communication to be sent by the Chennai Corporation within two weeks period to the Teachers Recruitment Board, the Teachers Recruitment Board shall act upon in war footing without making any further delay and as quick as possible the entire process of selection shall be completed at the maximum period of six months from the date of receipt of such request from the Chennai
Corporation and the list of selectees shall be forwarded by the
TRB, following the 69% reservation strictly, to the Chennai Corporation.
(ii) The 79 appointees now have been appointed by way of unit transfers from various units to the Chennai Corporation Schools can join in the Chennai Corporation Schools as per the appointment order. However, they shall vacate their office and be reverted back to their original unit or parent unit the moment the direct recruitees to be selected by the Teachers Recruitment Board joins service. Since the 79 unit transfer appointees would be reverted back as stated supra, their lien in their parent Department would continue and that can never be cut-off.
(iii) Simultaneously, the Chennai Corporation shall take all effective steps and endeavours to prepare and release the seniority list as of now among the Secondary Grade Teacher category, B.T. Assistant category as well as the P.G. Assistant category. Based on the seniority list to be published, action shall be taken by the Chennai Corporation to fill up the vacancies of 50% earmarked for promotees categories from the respective feeder categories. Such an exercise shall be completed by the Chennai Corporation within a period of three months from the date of receipt of a copy of this order.
(iv) In order to evaluate the progress of the aforesaid directions, this Court wants the Chennai Corporation to file a status report, hence this Writ Appeal shall be heard again on 23rd November, 2023.
32. Post the matter on 23.11.2023 as first case.
[R.S.K. J.] [C.K.J.]
12.10.2023
Note :
Issue order copy on 13.10.2023
Sgl
R.SURESH KUMAR, J. and C.KUMARAPPAN, J.
Sgl
W.A.No.2912 of 2019 and
C.M.P.No.18825 of 2019
12.10.2023