The prayer in the writ petition is for a Writ of Certiorarified Mandamus to call for the records relating to the impugned order vide Niyamana Kulu Theermana No.04 dated 04.10.2013 issued by the 3rd respondent and quash the same insofar as the rejection of the petitioner is concerned and consequently direct the respondents to consider the petitioner for the post of Driver in Tenkasi Municipality.
2.The 2nd respondent Municipality invited applications for the recruitment to the post of Driver at the Municipality, pursuant to which, only two persons had responded to the 2nd respondent. On 14.08.2013, the 2nd respondent issued a call letter to the petitioner to attend a certificate verification session to be conducted on 27.08.2013. Accordingly, the petitioner had also attended certificate verification session and they had perused all those certificates. Along with the petitioner, one more candidate had also attended the certificate verification. Therefore, only two candidates including the petitioner attended the certificate verification.
3. The minimum required educational qualification for the post of Driver is 8th standard and must have the heavy vehicle driving licence. Since the petitioner completed 12th standard and also had completed Diploma in Mechanical Engineering, he is having the required qualification and is also having the heavy vehicle driving licence. Therefore, he thought that he would be considered for selection. While so, by the impugned order dated 04.10.2013, the third respondent has rejected the candidature of the petitioner as well as yet another candidate one Murugan, who also participated in the selection process along with the petitioner. Challenging the said impugned order, the petitioner has come up with the present writ petition.
4. Heard both sides.
5. The learned counsel for the petitioner would submit that insofar as the rejection of another candidate, namely, T.Murugan is concerned, though he had qualification of 8th standard, he do not have the heavy vehicle driving licence, which is one of the required qualification and therefore, his candidature was rejected. However, insofar as the petitioner is concerned, though the petitioner is having the educational qualification as well as the heavy motor vehicle driving licence, his candidature has also been rejected by the third respondent through the impugned order. The reason adduced by the third respondent in the impugned order is that the petitioner is having the qualification of Diploma in Mechanical Engineering, which, in fact, is the over qualification than the one prescribed, also the attitude of the petitioner, as examined by the third respondent Committee at the time of interview and certificate verification, is not satisfactory to the Committee. Therefore, for these two reasons, the candidature of the petitioner has been rejected. According to the learned counsel for the petitioner, both the reasons adduced in the impugned order for rejecting the candidature of the petitioner is untenable, as having the higher qualification cannot be a disqualification. Similarly, the other reason stated in the impugned order that the attitude of the petitioner is not proper and it is not suitable for the post of Driver at the 2nd respondent Municipality is not only vague, but also totally unacceptable and therefore, for these two reasons, if the candidature of the petitioner is rejected through the impugned order, certainly, it is bad in law. Therefore, it is to be interfered by this Court, he contended.
6. Per contra, the learned standing counsel for the 2nd and 3rd respondents, by relying upon the averments made in the counter affidavit filed by them, has submitted that the petitioner, pursuant to the call letter had attended the certificate verification session. In the call letter itself, it was specifically mentioned that the petitioner has to produce all necessary certificates for his educational qualification and other aspects along with the attested copies of each of such certificates duly attested by an Attesting Officer concerned. The petitioner had not produced the certificates with attested copies. When the said lacuna on the part of the petitioner is pointed out by the certificate verification Committee, immediately, the petitioner was managed to get the attestation of the Chairman of the 2nd respondent Municipality itself with the help of one of the Councillor of the Municipality and had produced the same. The Chairman of the Municipality is not a gazetted officer, who is not suppose to attest the certificates and the petitioner is also not expected to produce the certificates attested by the Chairman of the 2nd respondent Municipality. This action on the part of the petitioner would clearly show that there is a nexus between the Chairman of the 2nd respondent Municipality and the petitioner.
7. The learned counsel for the Municipality would also submit that, that apart, since the petitioner is having the qualification of Diploma in Mechanical Engineering and the post of Driver, wherein, the petitioner is going to be posted is to drive the Garbage lorry (vehicle) to collect garbage within the municipal limits of the 2nd respondent Municipality, normally, people with higher qualification would not prefer for this job. Because for the said job, a high degree of tolerance must be attached with the individual concerned as everyday, shortly, about 14 kilometres, the Driver is to drive the garbage lorry and every nook and corner of the Municipal limits in between, so many places, wherein, garbage is collected and on every street and nook and corner, he has to collect the same and this kind of job is to be done only by a committed person. Therefore, when this was specifically questioned by the certificate verification team of the Municipality, the petitioner replied that he thought of calling for the post of Driver in the Municipality only to drive Jeep or other vehicle and not the vehicle/garbage lorry. This answer and the attitude would clearly indicate that this petitioner would not be a suitable candidate for the said post of garbage lorry Driver of the 2nd respondent Municipality and therefore, for this reason also, the candidature was rejected. In this regard, the learned standing counsel would rely upon paragraph No.6 of the counter affidavit, which reads thus:
?6.It is submitted that the post of driver in Tenkasi Municipality is vacant only in Public Health section. The public health section driver is expected to drive garbage lorries and sewage water lorries often in unhygienic conditions. The work environment is not often likable and occasionally nauseating. It is a job which requires enormous degree of patience and the driver is expected to take as much as four hours to cover streets, collecting garbage, measuring totally fourteen kilometers in one shift with numerous stop overs. It requires a different set of skills, dedication and attitude to be a public health section driver of a municipality. The appointment committee of Tenkasi Municipality is of the view that the petitioner lacks the required aptitude and attitude as evidenced by the following facts.?
8. It is also brought to the notice of this Court that this Court by order dated 07.11.2013 in M.P.No.1 of 2013 in this writ petition has passed the following order:
?The learned counsel for the petitioner has brought to my notice that the candidature of the petitioner has been rejected solely on the ground that he is over qualified. The petitioner is a Diploma holder in Mechanical Engineering, which, according to the third respondent is a over qualification. I am of the view that it is as though acquiring higher qualification is a sin, the petitioner has been rejected for having acquired such higher qualification.
In view of the same, there shall be an order of interim stay of the entire selection process. Notice.?
9. Heard the learned Additional Government Pleader for the 1st respondent also. This Court had considered the rival submissions made by the learned counsel for the parties and also perused the materials placed before this Court.
10. Admittedly, the minimum educational qualification for the post of Driver is only pass in 8th standard and the other qualification is that the person must have the driving licence for driving heavy motor vehicle. The petitioner is having the educational qualification of more than 8th standard, as he has completed +2 and also having the diploma in Mechanical Engineering and is also having he heavy vehicle motor licence. Therefore, in both counts, the petitioner has fulfilled the required qualifications prescribed by the 2nd respondent. Therefore, now, this Court has to go into the veracity of the reasons cited by the respondent Municipality and selection committee in the impugned order for rejecting the candidature of the petitioner.
11. The first reason, according to the respondent Municipality, is that the petitioner is having the over qualification of Diploma in Mechanical Engineering. It is a settled law that mere having of over qualification shall not be treated as a disqualification. In some cases, a specialized qualification may be required. Otherwise, if it is a general educational qualification of passing in 12th standard, certainly, he was qualified, such as pass in 8th standard or having a Diploma in Mechanical Engineering qualification cannot be disqualification for a person to apply for the post of Driver. Therefore, this reason adduced in the impugned order, on the face of it, is found to be unsustainable and therefore, the same cannot stand in the legal scrutiny.
12. Insofar as the second reason is concerned, it is stated in the impugned order that the individual is not having the clear intention to ply the vehicle as a Driver of the respondent Municipality. Though very specifically stated that the petitioner is not having the proper attitude, when this was questioned by this Court, as what was expected from the petitioner as proper attitude to have this job of Driver, the learned standing counsel for the respondent Municipality would say that the petitioner, in fact, has been specifically questioned by the team of the second respondent Municipality, who verified the certificates of the petitioner, by a specific query as to whether the petitioner would be ready and willing to ply the garbage vehicle lorry. According to the learned counsel for the Municipality that the answer was in negative by the petitioner. However, the petitioner has produced a copy of the representation submitted by the petitioner, of course, after the impugned order, the said representation dated 10.10.2013 filed in typed set of papers, wherein the following has been stated:
?vd;Dila Xl;Leh; chpkk; xhp[pdy; thq;fp ghh;j;J tpl;L eP rhf;fil kw;Wk; Fg;ig tz;b Xl;Ltjw;F jahuhf cs;sPh;fsh? vd;W Nfl;lhh;fs; mjw;F ehd; jahh; vd;w gjpyspj;Njd;. ClNd ntspapy; Ngh vd;W nrhy;yptpl;lhh;fs;. ehDk; ntspapy; te;Jtpl;Nld;."
13. When it is the specific case of the petitioner that he has said 'yes' for the query raised before him, whether he was willing to take the garbage lorry of the respondent Municipality, the present submissions made on behalf of the Municipality through the learned standing counsel that he was not ready and willing to take the garbage lorry and his attitude was towards to ply jeep or other vehicle belong to the Municipality, therefore, he may not be suitable for the post for which selection was made, is out of context and therefore, the same is liable to be rejected.
14. Hence, the two reasons adduced in the impugned order or either non- est or unsustainable, the outright rejection of the candidature of the petitioner made by the 2nd respondent and third respondent through the impugned order is liable to be interfered with. Accordingly, this Court feels that the impugned order is liable to be quashed, insofar as the rejection of the candidature of the petitioner is concerned. Accordingly, the same is quashed.
15. However, the learned counsel for the respondent Municipality has produced yet another communication issued by the 2nd respondent dated 04.11.2013, wherein, the complaint said to have been given by the petitioner dated 30.10.2013 making some allegations against the officials/elected members of the 2nd respondent Municipality has been dealt with and a reply was given by the 2nd respondent to the petitioner, in the proceeding dated 04.11.2013. The following two paragraphs of the said letter dated 04.11.2013 is relevant and therefore, the same are reproduced hereunder:
?1. Neh;Kfj;Njh;Tf;F tUk; mNgl;rfh; jkJ rhd;wpjo;fis $l Kiwahf muR gjT ngw;w Nkyjpfhhpaplk; Nknyhg;gk; ngwhJ> efuhl;rp mYtyfj;jpy; efh;kd;w jiythplk;> efh;kd;w cWg;gpdhpd; ghpe;Jiuapd; Nghpy; (thh;L vz; 26) Nknyhg;gk; ngw;Ws;shh;. ,J jdpahpd; gzp <LghL Fiwe;jjhf ,Ug;gjidAk; (lack of sincerity) nghWg;gw;w jd;ikapidAk; fhl;LfpwJ. (Indifferent attitude towards rules and procedure)
2. jdpahh; nghwpapay; gl;ljhhpahf ,Ug;gjhYk;> ,e;j Xl;Leh; gzpaplk; nghJ Rfhjhug;gzpapy; cs;s Fg;ig / rhf;fil yhhp Xl;Ltjw;F cld;gLtPh;fsh vd tpdtg;gl;lNghJ> jhk; Fg;igyhhp / rhf;fil yhhpapid Xl;l ,ayhJ vd;Wk;> <g;G Nghd;w mYtyf thfdq;fisNa jd;dhy; Xl;l KbAk; vd;Wk; njhptpj;jhh;.
16. In view of the repeated stand being taken by the respondent Municipality that the petitioner has not expressed his willingness to ply the garbage lorry of the respondent Municipality, making appointment of the petitioner for the said post is totally out of context because, once, he is appointed and after getting his appointment, if the petitioner expressed his inability, then, it will be very difficult for the respondent Municipality to run the show as collection of garbage is one of the prime job of the Municipality.
17. In view of the said stand taken by the Municipality, this Court is of the view that the respondent Municipality shall give the appointment as Driver to the petitioner, before such appointment is made, it is open to the respondent Municipality to get an undertaking from the petitioner to the extent that the appointment will be made for the petitioner only for the post of Driver (for driving garbage lorry belong to the respondent Municipality) and also the job nature of the Driver, who drives such garbage vehicle given also be clearly pointed out by written communication to the petitioner and thereafter undertaking to that effect may be obtained from the petitioner. After getting such kind of undertaking, the respondent Municipality can proceed further to appoint the petitioner as a Driver.
18. Resultantly, the following orders are passed in this writ petition: (I) The impugned order passed by the third respondent on behalf of the 2nd respondent Municipality dated 04.10.2013, insofar as the petitioner is concerned is quashed;
(ii) The 2nd respondent is directed to comply with the directions indicated above for giving appointment to the petitioner as Driver, of course, after getting necessary written undertaking from the petitioner for plying the garbage lorry (garbage collecting vehicle) belongs to the 2nd respondent Municipality and the needful as directed above shall be done by the respondent Municipality within a period of four weeks from the date of receipt of a copy of this order.
(iii) It is made clear that since this impugned order is quashed only in respect of the petitioner and one more post of Driver is also vacant at the respondent Municipality, it is open to the Municipality to proceed with the selection process to fill up the said post in accordance with law. No costs. Consequently connected Miscellaneous Petitions are closed.
To
1. The Commissioner of Municipal Administration, Ezhilagam Annex, 6th Floor, Chepauk, Chennai ? 600 006.
2. The Commissioner, Tenkasi Municipality, Tenkasi, Tirunelveli District.
3. The Chairman, The Selection Committee, Tenkasi Municipality, Tenkasi, Tirunelveli..