PGTRB:COMMERCE CASE JUDGEMENT - W.P.No.31869,70, 71/2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.07.2014
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
W.P.No.31869, 31870 and 31871 of 2013 and
M.P.Nos.1 and 2 of 2013 (in each petitions)
P.Kumar ... Petitioner in W.P.No.31869/2013
G.G.Boopathie ... Petitioner in W.P.No.31870/2013
P.Arul ... Petitioner in W.P.No.31871/2013
vs.
1.The Secretary to Government,
Education Department,
Fort St.George, Chennai -9.
2.The Director of School Education,
College Road, Chennai - 600 006.
3.The Chairman/Member-Secretary,
Teachers Recruitment Board,
4th Floor, E.V.K.Sampath Maaligai,
DPI Compound, College Road,
Chennai - 600 006. ... Respondents
W.P.No.31869 of 2013 filed under Article 226 of the Constitution of
India praying for the issuance of a writ of mandamus, directing the 3rd
respondent to award full marks with reference to the question Nos.115,
126 and 140 in the booklet Series-C in the Commerce Subject to the
petitioner and to conduct certificate verification, select, publish and
appoint petitioner to the post of P.G.Assistant in Commerce for the year
2012-2013.
W.P.No.31870 of 2013 filed under Article 226 of the Constitution of
India praying for the issuance of a writ of mandamus, directing the 3rd
respondent to award full marks with reference to Question Nos.55, 61,
73, 77, 90, 102, 103, 111 and 150 for the Booklet Series B in the
Commerce Subject more particularly mentioned in the affidavit and also
to award weightage of 4 marks for employment seniority duly registered
with the Professional and Executive Employment Office, Chennai-4 to the
petitioner and to conduct certificate verification select publish and
appoint petitioner to the post of P.G.Assistant in Commerce for the year
2012-2013.
W.P.No.31871 of 2013 filed under Article 226 of the Constitution of
India praying for the issuance of a writ of mandamus, directing the 3rd
respondent to award full marks with reference to Question Nos.120 and
131 in the Booklet Series A in the Commerce Subject to the petitioner
and to conduct certificate verification select publish and appoint
petitioner to the post of P.G. Assistant in Commerce for the year
2012-2013.
For Petitioners : Mr.G.Ilamurugu
For Respondents : Mr.PH.Arvindh Pandian
Additional Advocate General
Assisted by
Mr.D.Krishna Kumar,
Special Government Pleader
C O M M O N O R D E R
These
writ petitions have been listed before me as specially ordered cases on
the orders of the Hon'ble Acting Chief Justice, dated 25.06.2014.
2.The
Teachers Recruitment Board, Government of Tamil Nadu, has issued
advertisement in Advt.No.02/2013, dated 09.05.2013, inviting
applications from eligible candidates for direct recruitment to various
subjects in the Tamil Nadu Higher Secondary Educational Services. In
all these cases, the petitioners had applied for the post of Post
Graduate Assistants/Physical Education Directors Grade I.
W.P.No.31869 of 2013
The
petitioner participated in the said examination in the subject Commerce.
His Roll Number is 13PG25110131. The question papers were in four
series. The questions were of objective type. The petitioner was
supplied with 'C' series question paper. Challenging the key answers in
respect of question Nos.115, 126 and 140 in "C" Series, the petitioner
is before this Court with this writ petition.
3.I have
heard the learned counsel for the petitioner and the learned Special
Government Pleader appearing for the respondents and I have also perused
the records carefully.
4. The learned counsel appearing for the petitioner fairly conceded that the correctness of the said question Nos.126 and 140
have already been decided by this Court in earlier writ petitions. In
view of the said admitted position, no further adjudication is required
in respect of the key answers for these questions.
5.Now, what remains to be adjudicated upon is question No.115 in 'C' Series. Question No.115 reads as follows:-
"115. A director can be removed from the office by the Central Govt. on the recommendation of:
(A) Labour Tribunal (B) The Company Law Board
(C)The Company Law Tribunal
(D) The Registrar of the Companies "
6.The
learned counsel for the petitioner would submit that Chapter IV A of
the Companies Act was introduced by means of Companies (Second
Amendment) Act, 2002. He would further submit that as per the said
amendment, in the place of "Company Law Board", "Tribunal" was
substituted. According to the learned counsel, the said provision was
challenged before this Court in R.Gandhi v. The State, wherein, this
Court has held that the constitution of the Tribunal was
unconstitutional. As against the same, SLP was filed before the Hon'ble
Supreme Court, wherein, a same view was taken. Further, according to
the learned counsel for the petitioner, Chapter IV A was never notified
as required under the Companies (Second Amendment) Act, 2002. Therefore,
according to him, it is only "Company Law Board", which has got power
to make recommendation and on whose recommendation, a director can be
removed.
7. Today,
four experts in the said subject are present before this Court. They
are Dr.R.Prabakaran, Head of the Department and Associate Professor of
Commerce, Government Arts College, Nandanam, Dr.C.Ladha Pooranam,
Associate Professor of Commerce, Presidency College, Chennai, Dr.D.Usha
Rani, Associate Professor of Commerce, Queen Mary's College, Chennai and
Dr.Jayanthi Lakshmanaswamy, Associate Professor of Commerce, Government
Arts College, Nandanam. This Court had the benefit of hearing them
also. According to them, as per Section 388-E of the Act, which was
introduced by means of Companies (Second Amendment) Act, 2002, the
"Tribunal" alone is competent to make a recommendation to the Central
Government for removal of a director.
8. I have considered the above submissions.
9. The
examination in question was conducted in the year 2012 and therefore, we
are concerned with the Companies Act, 1956. Of course, now the said Act
has been repealed by Companies Act of 2013. So far as Companies Act of
1956 is concerned, Chapter IV A was introduced by means of Amendment
Act 53 of 1963 with effect from 01.01.1964. As per Section 388 E of
Chapter IV A, notwithstanding any other provision contained in this
Act, the Central Government shall by order, remove from office any
director, or any other person concerned in the conduct and management of
the affairs, of a company, against whom there is a decision of the
Company Law Board under this Chapter.
10. By
means of the Companies (Second Amendment) Act, 2002, Chapter IV A was
amended and instead of "Company Law Board", the "Tribunal" was
substituted. Thus, according to the Amendment Act, which was introduced
in the year 2002, it is only the "Tribunal", which has got the power
under Section 388E to make recommendation for removal of a Director. But
unfortunately, the said Amendment Act of 2002, relating to Chapter IV A
was never notified. As per the Amendment Act, the provisions of the
amendment Act shall come into force from the date to be specified by the
Central Government by means of notification. Since in this case,
amendment made to Chapter IV A, was not all notified, the "Tribunal" was
not constituted and it was only "Company Law Board" which has been
functioning. Above all, the said amendment was already set aside by this
Court, which has been confirmed by the Supreme Court. Therefore, as it
stood in the year 2012, under Section 388E, as it remained unamended, it
was only the "Company Law Board", which was competent to recommend for
removal of a director. In that view of the matter Option B - "The
Company Law Board" alone is the right answer.
11. At
the same time, this Court cannot deny marks for the candidates who have
answered Option C - "The Company Law Tribunal". In all the text books,
which have been produced before me, it is stated that it is Company Law
Tribunal, which has got power to make recommendation to the Central
Government to remove a director. This is based on the Amendment Act
2002. Now the question is whether a Post Graduate Teacher, who is not a
legal expert, can be expected to know about the judgment of this Court
as well as the judgment of the Hon'ble Supreme Court and also about the
date of notification. In my considered opinion, the answer is an
emphatic No. It is expected of from a Teacher to read only text books
and not to analyse the legal position like a law expert. Therefore,
those candidates, who have answered option 'C' as right answer based on
the text books cannot be penalised. This is accepted by the learned
Special Government Pleader also.
12.
Therefore, I am of the view that while awarding marks for those
candidates, who have opted Option "B" as right answer, marks cannot be
denied to those candidates, who have opted Option "C" as right answer.
13.
Therefore, W.P.No.31869 of 2013 stands allowed. The Teachers
Recruitment Board is directed to revaluate the answer scripts of all the
candidates in the subject of Commerce and award marks for both Options
viz., Option B - The Company Law Board and Option C - The Company Law
Tribunal in respect of question No.115. No costs. Connected
miscellaneous petitions are closed.
W.P.No.31870 of 2014
14. The
challenge in this writ petition relates to key answers in Commerce
subject. The petitioner challenges key answers to Question Nos. 55, 61,
73, 77, 90, 102, 103, 111 and 150 in "B" Series.
15. It is
brought to my notice by the learned Special Government Pleader
appearing for the respondents that the correctness of the said question
Nos. 55, 73, 77, 90, 103, 111 and 150 in "B" Series have already been
decided by this Court in earlier writ petitions. In view of the said
admitted position, no further adjudication is required in respect of the
key answers for the said questions.
16. Now what remains to be adjudicated upon is question Nos.61 and 102.
"Question No.61 reads as follows:-
61. Tariff is a tax levied on:
(A) Exports (B) Imports
(C)Profit of a firm (D)Sales of a Commodity
R';fthp vjw;F tpjpf;fg;gLfpwJ ?
(A) Vw;Wkjpfs; (B) ,wf;Fkjpfs;
(C) epWtdj;jpd; ,yhgk; (D) bghUl;fs; tpw;gid"
17. The
learned counsel for the petitioner would submit that in Tamil Version,
the expression used is "R';fthp", which means Customs. He would submit
that customs duty can be imposed only on imported goods and not on
exported goods. It is on this ground, the learned counsel would submit
that the question is wrong.
18. But
the learned Special Government Pleader would submit that customs duty is
imposed both on import as well as on export goods. Therefore, Option
"A" as well as Option "B" are correct answers. Accordingly, marks have
been awarded for Option "A" as well as Option "B" The said statement is
recorded.
19.
Admittedly, the question relates only to customs duty. The contention
of the petitioner that customs duty can be imposed only on import goods
cannot be accepted, in view of Section 16 of the Customs Act, 1962,
which states customs duty is leviable on export goods as well.
20. In
such view of the matter, TRB was right in awarding marks for Option "A"
as well as Option "B". Hence, the same does not require any
interference.
21. Question No.102 reads as follows:-
"102. The numerical statements as well as statistical methodology is known as
A) Mathematics B) Statistics
C)Financial Management D)Commerce
vz;zpay; mwpf;ifia nghd;nw g[s;spay; Kiwfisa[k;________vd mwpfpnwhk;
(A) fzpjtpay; (B) epjpapay; nkyhz;ik
(C) g[s;spapay; (D) tzpftpay;"
22.
Admittedly, the right answer is "Statistics". In the English version of
the question, Option "B" is Statistics, whereas, in Tamil version,
Option "C" is Statistics. Thus, the question itself is wrong.
Therefore, in my considered opinion, this question should be deleted
and accordingly, it is ordered. W.P.No.31870 of 2013 stands partly
allowed. No costs. Connected miscellaneous petitions are closed.
W.P.No.31871 of 2014
23. The
challenge in this writ petition relates to key answers in Commerce
subject. The petitioner challenges key answers to Question Nos. 120 and
131 in "A" Series.
24. It is
brought to my notice by the learned Special Government Pleader
appearing for the respondents that the correctness of the said question
No.120 in "A" Series have been decided today by this Court in
W.P.No.31869 of 2013 and hence, the same may be ordered in this writ
petition also. It is submitted that so far as Question No.131 in "A"
Series is concerned, the same has already been decided by this Court in
earlier writ petition.
25. In
view of the said submission made by the learned Special Government
Pleader, in respect of Question No.120 in "A" Series is concerned, the
order passed by this Court in W.P.No.31869 of 2013 is also extended to
the petitioner herein. So far as Question No.131 in "A" Series is
concerned, in view of the said admitted position, no further
adjudication is required. W.P.No.31871 of 2013 stands partly allowed.
No costs. Connected miscellaneous petitions are closed.
04.07.2014
Index : Yes
Note : Issue order copy on 15.07.2014
svki
To
1.The Secretary to Government,
Education Department,
Fort St.George, Chennai -9.
2.The Director of School Education,
College Road, Chennai - 600 006.
3.The Chairman/Member-Secretary,
Teachers Recruitment Board,
4th Floor, E.V.K.Sampath Maaligai,
DPI Compound, College Road,
Chennai - 600 006.
S.NAGAMUTHU,J.
svki
W.P.No.31869, 31870 and
31871 of 2013
04.07.2014
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