1. The issue involved in all these writ petitions pertains to filling up of 2% vacancies that are meant for the Ministerial staff (non-teaching staff) as per the Special Rules for the Tamil Nadu School Educational Subordinate Service, to the post of B.T. Assistant and P.G. Assistant from the year 2007-2008 to 2024-2025.
2. The petitioners in W.P.No.16897 of 2024 are claiming for the 2% vacancies to the post of B.T. Assistants. The petitioners in W.P.No.9011 of 2022 cover the aspirants for both B.T. Assistants and P.G. Assistants. The petitioners in W.P.No.32612 of 2024 are aspirants for B.T. Assistant post. The petitioners in W.P.No.32351 of 2022, 903 of 2023 and 9023 of 2023 are aspirants for the post of P.G. Assistant. The petitioners in W.P.No.25645 of 2024 are aspirants to the post of B.T. Assistant.
3. The common grievance that was expressed by all the petitioners is that right from the year 2014-2015 onwards, not even on a single occasion, the 2% reservation that was earmarked for eligible persons in the Ministerial service in the School Education Department was filled up. While so, a notification dated 25.10.2023 followed by an addendum dated 15.11.2023 and another addendum dated 17.05.2024 came to be issued by the Teachers Recruitment Board for filling up of vacancies to the post of Graduate Teachers /Block Resource Teacher Educators (BRTE) through direct recruitment. While undertaking this exercise, an attempt was made to fill up all the vacancies through direct recruitment without considering the entitlement of the petitioners under the 2% reservation earmarked for Ministerial staff. The further grievance expressed by the petitioners is that earlier, writ petitions were filed before this Court in W.P.Nos.4756 of 2021, 10188 of 2021 and 14928 of 2021 seeking preparation of a panel in respect of 2% vacancies reserved for Ministerial staff in the School Education Department for promotion to the post of B.T. Assistant and P.G. Assistant. All these writ petitions were allowed/disposed of by three separate orders, all dated 23.07.2024, and directions were given to ascertain the number of vacancies filled up since 2007 by way of promotion and to fill up the available vacancies till 2020. This direction was also not complied with by the respondents and instead, they went ahead with the process of direct recruitment to fill up the vacancies in the post of B.T. Assistant/Graduate Teacher.
4. When these writ petitions came up for hearing on 01.10.2024, the following order was passed by this Court:
“Pursuant to the earlier order passed on 26.09.2024, the matter was posted for hearing today.
2. The counter affidavit has been filed by the 2 nd respondent. It is seen from the counter affidavit that from the year 2014-15, the number of posts earmarked for 2% promotion for ministerial staffs works out to 130 posts up to 2024-25. This is for promotion to the post of Graduate Teacher/B.T. Assistant. On going through the counter, it is seen that the respondents have now decided to await for the final orders in the pending Special Leave Petition before the Apex Court filed against the order passed by the Division Bench in W.A.No.313 of 2022 batch dated 02.06.2023. That apart, it is also mentioned in the counter that steps are being taken to file writ appeal against the orders passed in W.P.Nos.4756 of 2021, 10712 of 2021 and 10188 of 2021.
3. Even during the previous hearing, this Court found that it will be unreasonable not to consider the claim made by the petitioners and others falling under 2% category and to permit the respondents to proceed further to fill up the post through direct recruitment. This issue has been lingering for quite a long time and in the case of the petitioners, they all are TET qualified. Therefore, the pending Special Leave Petition will have no bearing insofar as the relief sought for by the petitioners. This Court has already directed the respondents not to fill up the vacancies in the post of B.T. Assistants. Considering the larger ramification involved, the learned Special Government Pleader submitted that the opinion has been sought for from the learned Advocate General and that steps are being taken to engage the learned Advocate General in this case.
4. In the light of the above, post these writ petitions at the end of the motion list on 17.10.2024. In the meantime, interim order passed by this Court on 26.09.2024 shall continue.”
5. The matter was once again listed for hearing on 23.10.2024 and the following order came to be passed by this Court:
“Pursuant to the earlier order passed by this Court on 18.10.2024, these writ petitions were listed for hearing today.
2.The learned Advocate General handed over the affidavit of the 2 nd respondent. The relevant portions are extracted hereunder:
“8. It is further submitted that due to gradual steep decrease in the students' strength, the surplus teachers were being identified year to year and the deployments of surplus teachers to the needy schools were carried out by way of state wide counselling, for the period from the year 2017-2018 to 2021-2022. Since the surplus teachers, so deployed were more than the available vacancies, there was no need to prepare estimate of vacancy for the post of Graduate teachers from 2017-2018 to 2022-2023. The details of surplus teachers, having been deployed so, are tabulated in TABLE-2 herein below:
9. It is further submitted that subsequently, due to increase in students' strength, when the estimate vacancy for the year 2023-24 and 2024-25 was issued, there are 2162 and 975 estimated vacancies in BT Assistants' posts respectively, earmarked for promotion. However, the said vacancies could not be filled up by way of promotion for wantage of Teacher Eligibility Test as per the orders of the Division Bench of this Hon'ble Court dated 02.06.2023 made in W.A.No.313 of 2022, etc., batch.
10. It is further submitted that the details of vacancies filled up by way of promotion up to the year 2016-2017 and the 2% vacancies earmarked for 2% reservation for ministerial staff is tabulated in Table-3 herein below:-
11. It is further respectfully submitted that while the facts being so, Writ Petitions were filed in W.P.No.4756 of 2021, W.P.No. 10712 of 2021 and W.P.No. 10188 of 2021 before this Hon'ble Court, praying for issuance of a Writ of Certiorarifed Mandamus, to call for the records relating to the impugned proceedings issued by the second respondent in Na Ka. No. 055712/C3/E2/2021 dated. 10.02.2021 and to quash the same and consequently directing the respondents to prepare the panel in respect of 2% Vacancies reserved for Non-Teaching Staff in School Education Department from the year 2014 in accordance with G.O. (Ms) No. 175 School Education (M2) Department dated. 19.07.2007 and Special Rules for Tamil Nadu School Education Subordinate Service including for the panel year 2020-21, before finalizing the panel for promotion to the post of B.T.Assistant from the category of Secondary Grade Teacher. The Hon'ble High Court passed the following orders on 23.07.2024 in the above writ petitions:
"12. The respondents are further directed to ascertain the number of vacancies filled up since 19/07/2007 to the posts of School Assistant - Graduate Teacher by way of promotion and ascertain 2% of such posts. and fill up the said 2% posts by considering the Ministerial staff working in School Education Department by way of appointment by transfer in accordance with G.O.Ms. No. 7 School Education Department dated 20/01/2020 till 29/01/2020 and thereafter to consider the claims of the said Ministerial staff for appointment by transfer to the posts of Graduate Teacher in terms of G.O.Ms. No. 13 School Education (SE3(1) Department dated 30/01/2020. The respondents are further directed to complete the entire exercise as directed above as expeditiously as possible at any rate within a period of three months from the date of receipt of a copy of this order.
13. It is made clear that the petitioner and other Ministerial staff working in the School Education Department and claiming appointments by transfer to the posts of Graduate Teacher/School Assistants. Shall be subject to their satisfying the qualification criteria prescribed for the respective posts."
12. It is further submitted that the Division Bench of this Hon'ble Court in in W.P.No. 18789/2022 dated 11.01.2024 in the matter of the ministerial staff sought to be appointed as Post Graduate Assistants under 2% reservation quota, have observed as follows:
"14. It is pertinent to note that appointment by transfer is usually made in the same service or different service but usually in the same rank or status. But when the transfer is made from lower to higher posts not by promotion but by direct appointment without any examination or any similar criteria but merely on the basis of eligibility and qualification it cannot be permitted as the same would not be inconsonance with service discipline. When for the very same post, the direct recruits under 10% reservation category are subjected to a selection process a different yardstick for recruitment by Transfer of Service merely on the ground of different method of recruitment cannot be countenanced. It is further relevant to point out here that as rightly contended by the petitioner the Ministerial staff who are appointed as P.G. Assistant under the 2% reservation earmarked for them have absolutely no teaching experience. Therefore it defies logic to subject a teacher who has number of years of teaching experience to a selection process conducted by TRB, but at the same time dispensing the same for Ministerial staff who have absolutely no teaching experience. We find force in the submission of the petitioner in this regard. Though the respondent in its counter submitted that if the petitioner's claim is accepted, it would unsettle settled issues, in the absence of any particulars in support of the claim we are not inclined to accept it."
13. It is respectfully submitted that as observed above by the Hon'ble Division Bench of Madras High Court, the Government has deemed it fit and proposed to conduct a competitive examination for the eligible ministerial staff under 2% reservation among themselves, so as to enable them for being promoted as BT Assistants in order to ensure the academic excellence of the students in the Government Schools. Hence, for the above said purpose, the Special Rules for the Tamil Nadu School Educational Subordinate Service, need to be amended suitably. For the completion of the said amendment process, some more time is required.
Under these circumstances it is therefore most humbly prayed that this Hon'ble Court may be pleased to accept the Affidavit filed by the respondents and grant 3 (Three) months' time for making suitable amendments to the Special Rules for the Tamil Nadu School Educational Subordinate Service, and pass such other orders as this Hon'ble court deems fit in the circumstances of the case and thus render justice.”
3.The learned Advocate General submitted that the recruitment process will be kept in abeyance till the Special Rules are amended suitably to enable the petitioners and similarly placed persons to be considered under the 2% reservation.
4.The learned Senior Counsel/Counsel appearing on behalf of the petitioners submitted that they want to file a reply to this Counter.
5.Post these writ petitions at the end of the motion list on 29.10.2024.
6. The cases were again listed for hearing on 29.10.2024 and the following order was passed by this Court:
“Pursuant to the earlier order passed by this Court on 23.10.2024, the matter was listed for hearing today. A detailed reply affidavit has been filed in WP No.25645 of 2024 along with the relevant documents which has been filed as Additional typed set of papers. The learned Senior Counsel / learned counsel appearing on behalf of the petitioners also questioned the decision taken by the respondents to amend the Special Rules and also to conduct a competitive examination as between those persons, who fall under the 2% reservation.
2. A larger issue is involved in the present batch of writ petitions and the respondents will have to necessarily clarify the stand that has now been taken in the reply affidavit filed today, since the number that was provided during the previous hearing and number that has now been stated in the reply affidavit is a complete mismatch. Hence, the recruitment process shall be kept in abeyance until further orders are passed in these writ petitions.
3. The learned Senior counsel / learned counsel appearing on behalf of petitioners and the learned Special Government Pleader appearing on behalf of respondents submitted that these writ petitions can be heard by me since substantial arguments have already been made before this Court. A joint memo shall be placed before My Lord the Hon'ble Chief Justice and necessary administrative order shall be obtained for placing these writ petitions for further hearing before me.”
7. Pursuant to the above order, a Note was placed before the Hon'ble Chief Justice and the Hon'ble Chief Justice, through an administrative order dated 17.02.2025, directed all these writ petitions to be listed before me and accordingly, all these writ petitions were posted before me for hearing.
8. Heard the learned counsel for the respective parties and perused the materials available on record.
9. The State Government issued orders in G.O.Ms.No.175, School Education (M2) Department dated 19.07.2007 and as per this Government Order, 2% of the vacancies in the post of B.T.Assistant/Graduate Teacher was earmarked to be filled up by recruitment by transfer from among the eligible candidates from the Ministerial service in the School Education Department. A similar order was issued in G.O.(4D).No.21, School Education Department dated 02.11.2011 for filling up by recruitment by transfer from among the eligible candidates from the Ministerial service to the post of P.G.Assistant.
10. Pursuant to the aforesaid two Government Orders, in exercise of powers conferred by proviso to Article 309 of the Constitution of India, Special Rules for the Tamil Nadu School Educational Subordinate Service was issued in G.O.Ms.No.13, School Education Department dated 30.01.2020 for Graduate Teachers. Similarly, G.O.Ms.No.14, School Education Department dated 30.01.2020 was issued for P.G. Assistants. The 2% reservation was stopped from being implemented from the year 2014 – 2015. Representations were made in this regard and since the same were not considered, W.P.No.25137 of 2021 came to be filed and based on the order passed on 25.11.2021, proceedings were issued by the Directorate of School Education on 10.02.2022 and 14.02.2022 to the effect that the vacancies are being filled up by deployment of surplus teachers and if any vacancies remain to be filled up, the claim for accommodating 2% vacancy will be considered.
11. While so, a Division Bench of this Court had an occasion to deal with a batch of cases in W.A. Nos.313 of 2022 etc. batch pertaining to passing Teachers Eligibility Test (TET) for promotion to the post of B.T. Assistant/Graduate Teacher from the cadre of Secondary Grade teacher. While dealing with this issue, the Division Bench, at paragraph 75 of the judgment, made the following observation:
“75. The narration of facts which propelled this case would indicate that the teachers have not been appointed for the last ten years in spite of being qualified with a pass in TET. On the basis of the above findings and observations made, the State Government is directed to conduct TET periodically and make direct recruitment of teachers and promotion from among TET qualified candidates at the earliest.”
12. It is quite evident from the above judgment that no recruitment process had taken place to fill up the post of B.T.Assistant/Graduate Teacher for nearly ten years from 2013 to 2023. Taking cue from such strong observation made by the Division Bench of this Court, the Government thought it fit to proceed further with the process of direct recruitment of Graduate Teachers/B.T.Assistants and accordingly, the notification came to be issued by the Teachers Recruitment Board. However, while undertaking this process, the Government failed to take note of the entitlement of the Ministerial staff for 2% of the vacancies in the post of B.T. Assistants/Graduate Teachers. The earlier separate orders dated 23.07.2024 passed in W.P.Nos.14928 of 2021, 4756 of 2021 and 10188 of 2021 were also not acted upon. The same impelled the petitioners to approach this Court questioning the recruitment notification.
13. Counter affidavits were filed in these writ petitions. Insofar as B.T. Assistants/Graduate Teachers, two counter affidavits are relevant and they were filed in W.P.No.25645 of 2024. The first counter affidavit was filed on 23.10.2024. Even thereafter, a couple of counter affidavits were filed. The last of the counter affidavits was filed on 14.03.2025. Insofar as the P.G. Assistants, counter affidavit was filed in W.P.No.9011 of 2022.
14. In the counter affidavit filed on 23.10.2024 in W.P.No.25645 of 2024, particulars were given with respect to the Ministerial staff who were promoted as B.T. Assistants from the years 2007-2014. For the period from 2014-2015 to 2019-2020, 2% promotion to the Ministerial staff was not given. It is stated that there was a steep decrease in the student strength and hence, surplus teachers were identified year after year and they were deployed in the needy schools upto 2021-2022. In view of the same, a need did not arise for preparing the estimate of vacancies and as a result, 2% earmarked for Ministerial staff was never worked out. Ultimately, at paragraph 10 of the counter affidavit, a stand has been taken by providing a tabular column to the effect that 220 estimated vacancies arose for the period from 2007-2008 to 2013-2014 and 95 estimated vacancies arose from 2014-2015 to 2024-2025. The earlier orders passed in W.P.Nos.4756 of 2021, 10188 of 2021 and 14928 of 2021 were also taken into consideration. An order dated 11.01.2024 passed by a Division Bench of this Court in W.P.No.18798 of 2020 was also taken into consideration and the Government decided to conduct a competitive examination for the eligible Ministerial staff under 2% reservation so as to enable them for being promoted as B.T. Assistants.
15. In the counter affidavit filed on 14.03.2025, the following stand was taken at paragraph nos.6 to 9 and the same are extracted hereunder:
16. Insofar as the counter affidavit filed in W.P.No.9011 of 2022, the vacancy position towards 2% category was explained in paragraph nos.12 and 13 as follows:
17. At the time of hearing, the notice of this Court was drawn to G.O.Ms.No.261, School Education Department dated 09.12.2024. By virtue of the same, an amendment is sought to be brought into the Special Rules for the Tamil Nadu Higher Secondary Education Service to fill up 2% vacancies in the post of Post Graduate Assistant reserved for the staff of the Tamil Nadu Ministerial Service.
18. At the time of hearing, learned counsel appearing on behalf of petitioners, submitted that the above Government Order virtually took away the vested rights of those petitioners who are otherwise eligible for being considered for promotion as P.G. Assistants and that the said amendment cannot be given a retrospective effect and at the best, it can only have a prospective effect.
19. Submissions were also made touching upon different figures being given in each counter affidavit with respect to the 2% vacancies from the year 2007-2008 onwards which was clearly a mismatch from the figures that were available in the website and the same was explained by way of a reply affidavit filed in W.P.No.25645 of 2024. According to the petitioners, for the period from 2007-2022, 2% category comes to a total of 1,808 vacancies and whereas, the respondents have taken a stand that only 220 vacancies will fall under this category. In view of the same, the learned counsel for the petitioners were insisting for a proper break up of the vacancies for every year from 2007-2008 onwards so as to understand/ascertain the exact vacancy position which falls within the 2% category.
20. The further grievance that was expressed on the side of the petitioners is that the counter affidavit filed in W.P.No.25645 of 2024 dated 14.03.2025 gave an impression as if the vacancy position for every year will take into consideration only those vacancies that arose out of retirement, death, resignation, promotion, etc. It was contended that the vacancy position can arise out of various factors, including the increase in the student strength which would require more number of teachers. Therefore, the actual vacancy position as was attempted to be projected by the respondents requires further clarity to ensure that there is more transparency in finding out total vacancies from 2007-2008 till 2024-2025, out of which, 2% must be earmarked for the Ministerial staff. Further, the 2% vacancy cannot arise out of 50% and the 2% must be calculated from 100%. In other words, as per the statutory rules, the vacancy position must be filled up in the ratio of 50% + 48% + 2%.
21. In reply to all the above submissions made on the side of the petitioners, learned Advocate General submitted as follows:
i. The order passed in G.O.Ms.No.261, School Education Department dated 09.12.2024 which amended the Special Rules for the Tamil Nadu Higher Secondary Educational Service to fill up the 2% vacancies in the post of P.G. Assistant, will be given only a prospective effect and it will not be given a retrospective effect and thereby, the vested right of the petitioners and similarly placed persons will not be taken away; similarly such amendment has been contemplated for B.T. Assistants also and such amendment also will be given only a prospective effect;
ii. Insofar as computation of the number of vacancies, there was a mistake in the same, since, instead of calculating 2% out of total vacancies, it was calculated as 2% out of 50% of the vacancies and thereby, the calculation was done in the ratio of 50% + 49% + 1%, instead of 50% + 48% + 2%; as a result, the number of vacancies as mentioned in the counter affidavit must be taken to be 410 vacancies for the period from 2007-2008 onwards;
iii. The vacancies will not confine themselves to the vacancies arising out of only retirement, death, resignation, promotion, etc. as was projected in the counter affidavit filed on 14.03.2025 and the total vacancy position will be taken into account while determining the 2% vacancy to be filled up by the Ministerial staff;
iv. In line with this submission, the actual vacancy position and the 2% earmarking for the Ministerial staff for both B.T. Assistants as well as P.G. Assistants was tabulated and presented before the Court. For better appreciation, the same is extracted hereunder:
v. The 2% category will apply only to those Ministerial staff who belong to the State Education Department and it cannot be extended to the Ministerial staff belonging to any other category of schools. To substantiate the same, learned Advocate General placed specific reliance upon the Special Rules that were brought into force under the proviso to Article 309 of the Constitution of India.
22. The fair submissions made by the learned Advocate General sufficiently take care of the grievances expressed by the petitioners. The exact vacancy position falling under the 2% category has been tabulated and extracted in paragraph 20 (iv), supra and these vacancies will be filled up by preparing a panel for every year starting from 2007-2008 and the eligible candidates will be accommodated in the respective vacancies based on their seniority.
23. Insofar as grievances expressed by the petitioners on the proposed amendment to the Special Rules, they will have no bearing on the petitioners and similarly placed persons since amendment is going to be given only a prospective effect.
24. One of the submissions that was made on the side of the petitioners is that the observation made by a Division Bench of this Court in P. Charles Nelson vs. The Secretary to Government, School Education Department and 3 others (W.P.No.18798 of 2020 decided on 11.01.2024) is taken out of context and that, that case did not deal with 2% reservation and at the best, the observation can only be construed as an obiter dictum. It is not necessary for this Court to go into this issue since it has been clarified by the learned Advocate General that the amendment to the Special Rules is going to be given only a prospective effect.
25. Insofar as determination of the total vacancies, it has been clarified that the vacancy position will be determined not merely on the stand taken in the counter affidavit filed in W.P.No.25645 of 2024 at paragraph 6(v) and the entire vacancy position will be taken into consideration for every year starting from 2007-2008. As rightly contended by the learned Advocate General, this 2% category can be filled up only from among the Ministerial staff working in the State Education Department.
26. The above confusion would not have arisen if the vacancies had been filled up on regular basis. The State Government had allowed the vacancies to get accumulated from the year 2013 onwards and as a result, there is a huge backlog in filling up the vacancies under the 2% category. This has given rise to an unnecessary controversy which could have been easily averted by the State Government. Before 2007, the Ministerial staff were not entitled to being promoted as B.T. Assistants/P.G. Assistants and it was a right which was created by bringing forth the Special Rules under Article 309 of the Constitution of India and once the Rules come into effect, a vested right accrues to the Ministerial staff and it cannot be defeated by not undertaking the process of filling up vacancies under the 2% category. It is made clear that the State Government shall fill up the sanctioned vacancies in the School Education Department on a year to year basis and it is high time that the State Government stops the practice of engaging teachers on contract basis and establish themselves as a model employer.
27. In the light of the above discussion, all these writ petitions are disposed of with a direction to the State Government and the Directorate of School Education to take immediate steps to fill up the vacancies under the 2% category, both in the posts of B.T. Assistant/Graduate Teachers and P.G. Assistant from among the eligible candidates by drawing a panel for each year starting from 2007-2008 and to issue appropriate orders within a period of six weeks from the date of receipt of a copy of this order. The remaining vacancies in the posts of B.T. Assistant/Graduate Teacher shall be filled up by direct recruitment as per the selection done under the notification issued by the Teachers Recruitment Board. The Teachers Recruitment Board has already completed the selection process and hence, the Board shall forward the list of selected candidates to the respective user Departments forthwith. Such appointment orders shall be issued after the completion of filling up of vacancies under the 2% category for the posts of B.T. Assistant/Graduate Teacher. Connected W.M.Ps. stand closed. There shall be no order as to costs.
