Writ Petition under Article 226 of the Constitution of India praying for a Writ of mandamus, directing the third respondent to appoint the petitioner to the post of Secondary Grade Teacher in Salem District pursuant to he proceedings of the fourth respondent in Na.Ka.No.8705/A3/2007 dated 20.02.2008.
For Petitioners :
W.P.Nos.26650,26651,29354 and 29449 of 2008 W.P.Nos.1144,1145 of 2009 : Mr.S.Ganesh W.P.Nos.26621 to 26626 of 2008 W.P.No.4978 of 2009 :Mr.K.A.Mariappan W.P.Nos.12843,12844,28989 and 30219 of 2008 :Mr.S.Mani W.P.15448,16161,20091 and 28477 of 2008 :Mr.K.Selvaraj W.P.No.29020 of 2008 : Mr.A.S.Chakravarthi W.P.456 of 2009 : P.Gunaraj W.P.No.505 of 2009 : S.Subbiah W.P.No.10400 of 2009 : G.Jeremiah W.P.No.14056 of 2009 : P.V.S.Giridhar For Respondents :Mr.A.C.Manibharathi,G.A.
C O M M O N O R D E R Heard both sides. Since the issue involved in all these writ petitions are common, all the writ petitions were heard together and a common order is passed.
2. In all these writ petitions, the names of the petitioners were sponsored to the post of Secondary Grade Teacher by the respective district Employment Exchange for selection held for the year 2007-2008. In some of the cases, the petitioners' certificates which were already verified were sent for further verification since they had migrated from one Employment Exchange to another Employment Exchange. The Government had directed verification of such certificates in case there was any suspicion. But in no case, an appointment order was given in favour of the petitioners. In some of the cases, after the certificate verification, though the certificate of migration given by the petitioners was also found to be genuine, but there was still some dispute. When the petitioners were about to be given their appointment orders, the writ appeal in W.A.No.119 of 2008 filed by the Unemployed Secondary Grade Teachers Welfare Association, Society Reg.No.48.2007 v. The State of Tamil Nadu, rep by its Secretary came to be heard by a Division Bench presided by P.K.Misra,J.(as he then was) before Madurai Bench.
3. The contention of the said Association made before the single Judge as well as before the Division Bench was that the order of the State Government made in G.O.Ms.No.447 Education Science and Technology Department dated 16.07.1996 in so far as it restricts the selection and appointment to the post of Secondary Grade Teachers on the basis of District Wise Seniority maintained by the Employment Exchange was ultra vires and unconstitutional. The appeal was allowed by the Division Bench vide its judgment dated 14.05.2008. The said judgment was subsequently reported in 2008 Writ L.R. 747.
4. The Division Bench found fault with the action of the State Government and it was held that selection of candidates by restricting the choice to various district Employment Exchange based on their residential qualification was violative of Articles 16(2), 14 and 19(1) of the Constitution. The Division Bench in Paragraphs 34 and 35 held as follows:
34. As a matter of fact the decision of the Supreme Court in (2002) 6 SCC 562 (cited supra) is a complete answer to such imaginary excuses putforth by the State. In a very recent decision, the Supreme Court has expressed its grave concern relating to possible balkanization of the country because of the spread of non-tolerance displayed in some parts of the country. The submissions which are now being made by the learned Additional Advocate General or the counsel for the Interveners bring only to fore the above unwelcome trend. We do not think that such a course can ever be countenanced. As a citizen of India one has to imbibe the spirit of the Constitution and follow the adage made famous by no less a personality than Justice Krishna Iyer that "Kashmir to Kanyakumari, India is one". However, a reading of the counter filed by the State Government and the stand so painstakingly puforth by the learned Addl.Advocate General, though more in desperation rather than with any conviction, one gets the feeling that even though Kashmir to Kanyakumari India may be one, Dharmapuri to Kanyakumari Tamil Nadu is not one. The net result of the policy hitherto followed by some curious logic is that a duly qualified person, who is born in one part of the Tamil nadu and gets himself registered in the district of his residence, cannot seek employment under the Government in another district of the very same State. If this does not amount to denial of right to equality under
Article 14 and more particularly
Article 16(2) and the right under Article 19(1), we fail to imagine what else can be the denial of such fundamental rights.
35. In view of the above discussion, in our considered opinion, confining the question of selection to the candidates sponsored by the Employment Exchange of a particular district without considering the willingness, availability and suitability of similar candidates who have been registered in the other district employment exchanges, is clearly violative of fundamental rights and, therefore, cannot be countenanced. The impugned G.O.Ms.No.447, dated 16.07.1996 is liable to be quahsed. Accordingly, a direction is issued to consider the question of selection of eligible candidates, even though such candidates' names have been registered in other District Employment Exchanges. For the aforesaid purpose, obviously intimation is required to be given to all the District Employment Exchanges and public advertisement throughout the State is required to be made so that any willing candidate even though registered in a different district can offer his candidature."
(Emphasis added)
5. Before the Division Bench, it was also pointed out that at the time of hearing of the writ petitions and writ appeals, several appointments were already been granted based upon the seniority in the district Employment Exchanges and therefore, their appointments should not be disturbed.
6. The Division Bench after holding that the selection based upon the seniority in the District Employment Exchanges was ultra vires and unconstitutional, in paragraph 36, held as follows:
"36.The next question is regarding the selection already made. When the matter was entertained by the learned single Judge, an order of interim stay had been granted. Subsequently, however, when the writ petitions were dismissed and the Division Bench did not pass any order of interim stay but only observed that any selection made shall be subject to the result of the writ appeals, many such appointments have been made. Even though we do not appreciate the alacrity with which such appointments have been made in the interregnum by taking advantage of the fact that no specific order of stay was granted, we feel in the peculiar factual situation and particularly keeping in view the fact that hitherto such selections have been made for number of years, the question of termination of the persons already appointed is left to the discretion of the State Government. However, in respect of the vacancies yet to be filled up, the State Government as well as other authorities are required to make the selection only after inviting applications from all over the State." (Emphasis added)
7. In so far as the petitioners case are concerned, they were not given with any appointment order. In some cases, verification process was continued. In some other cases, after verification, candidates were awaiting for appropriate appointment orders. Hence, they sent representations to the respondents seeking for grant of appointment orders. When the same was not forthcoming, they have filed the present writ petitions seeking for a writ of mandamus or any other appropriate writ before this Court to the respondents to give appointments to the petitioners as Secondary Grade Teachers from the date on which persons who had participated along with the petitioners for certificate verification and got their appointment as Secondary Grade Teachers.
8.On notice from this Court, in some of the writ petitions, the third respondent has filed a counter affidavit. In the counter affidavit, the stand taken by the respondent was that since this Court had declared the selection based upon the Employment Exchange seniority of a particular revenue district was unconstitutional and the Supreme Court not having granted stay order, the question of grant of any appointment to the petitioners may not arise. It is also brought to the notice of this Court as against the Division Bench order in Unemployed Secondary Grade Teachers Welfare Association, Society's case (cited supra) the State Government of Tamilnadu went on appeal in Special Leave to Appeal (Civil) Nos.18227 and 18228 of 2008.
9.The Supreme Court on 20.10.2008 passed an interim order with the following effect:-
Leave granted.
In so far as the applications for impleadment, they shall be brought up along with the main matters.
Having regard to the fact that a large number of vacancies in the State have remained unfilled, the State Government sought leave to fill the posts. On the submissions made, we make the following interim order, accepting the State's proposal: Appointment to the post of Secondary Grade Teachers may be made by the State Government, by calling the list of eligible persons from all the District Employment Exchanges and by newspaper Public Advertisements throughout the State so that any willing candidate even though registered in different Districts can participate in the selection. It shall be made clear in the Public Advertisement that the selection would be based on the Employment Exchange seniority. It shall also be made clear that any person selected and appointed in a particular School within a District cannot aspire for or seek transfer to another School outside the District."
This aforesaid arrangement will apply for any recruitment to be made pending disposal of these appeals". (Emphasis added)
10.Even before the Supreme Court, some of the candidates sought for impleadment and those applications were tagged on with the main appeal. Therefore, in the context of the State taking umbrage under the order of the Division Bench (which was not stayed by the Supreme Court), the present petitioners have made their contentions.
11.On behalf of the petitioners arguments were addressed by Mr.P.Gunaraj, Mr.K.A.Mariappan, Mr.P.V.S.Giridhar, Mr.K.Selvaraj, Mr.G.Jermiah, Mr.S.Ganesh, Mr.S.Mani and the respondents were represented by Mr.A.C.Manibharathi, learned Government Advocate.
12.On behalf of the petitioners, it was contended that this Court can mould the relief in the light of the observations made by the Division Bench in Paragraph 36 of the order extracted above. It was stated that the Division Bench was aware that there were candidates who were selected and candidates who were also appointed. The concept of selection and appointment were noted on an interchangeable basis. It was also stated that the petitioners for no fault of them should not be denied the appointment only because, in some cases, the certificate verification was delayed by the authorities. It was also stated that some of the persons who stood in queue along with the petitioners have been given appointment. Therefore granting appointment to one set of persons and denying the same to others in the same class is violative of
Article 14 of the Constitution.
13.In support of his contention, Mr.P.V.S.Giridhar, learned counsel for some of the petitioners brought to the notice of this Court the following decisions of the Supreme Court, wherein, the Court taking into account circumstances of such cases had granted relief.
1.Purushottam v. Chairman, M.S.E.B and another (1999) 6 SCC 49
2.Bhupendra Singh v. Regional Joint Director of Education and others (2006) 10 SCC 298.
3.Sonia v. Oriental Insurance Co. Ltd and others (2007) 10 SCC 627
14.In the first case reported in (1999) 6 SCC 49, the Supreme Court held that the right of a person to be appointed against the post to which he was selected cannot be taken away on the pretext that the said panel in the meantime had expired or that the post had already been filled up by somebody else. In that case as against the selection of a candidate some other candidate had been appointed. The Supreme Court in paragraph 4 of the said judgment held that usurpation of the post by somebody else is not on account of any defect on the part of the appellant, but on the erroneous decision of the employer himself. In that view of the matter as the appellant's right to be appointed to the post was illegally taken away by the employer, the impugned order was set aside and relief was granted. In the present cases, in the teeth of a decision of the Division bench (not stayed by the Supreme Court), the appointments or selections made cannot be valid appointment.
15. The second decision reported in (2006) 10 SCC 298 arose out of decline of approval by the authorities for appointment made to the post of Assistant Teacher. It was contended that the Joint Education Director refused to grant approval on the ground that no approval was taken prior to the selection of the appellant. The Basic Shiksha Adhikarai (BSA) in that case clarified the position by his letter dated 13.09.1999 to the Joint Education Director. It was contended that the appointment was made after following proper procedure and that BSA had taken the decision with the approval of District Inspector of Schools (DIOS). In that context, the Supreme Court held that in the particular facts of the case, since the recruitment process was initiated prior to the Government's order and since DIOS had himself referred the matter of selection to the post of Assistant Teacher to BSA and in view of the clarification given by BSA, relief was granted to the candidate in question. The said decision has no relevance to the case on hand.
16.In the third decision reported in (2007) 10 SCC 627, the question arose in the context of a Schedule Caste candidate claiming vacancy reserved for Scheduled Tribe post in terms of the promotional policy. Under the relevant time, the policy permitted conversion of a ST vacancy into SC vacancy. But subsequently, by an Office Memorandum the policy was reversed. It was noted that such an Office Memorandum cannot over ride the advertisement dated 30.10.2003 inviting applications for the post to the prejudice of the candidate who is midway through his recruitment process. Therefore, it was held that the candidate who applies for a particular post will be governed by the Rule prevailing on the date on which applications were invited and no retrospective effect can be given to the revised policy.
17. The question for consideration in the present cases is not whether the petitioners have gone through the selection process or not. If at all there is any selection, the selection was purely based upon Employment Exchange seniority. But the non-issuance of appointment orders cannot be raised in the teeth of the Division Bench judgment holding the field.
18.It must be noted that the Division Bench had held the policy of recruitment as per G.O.447, Education, dated 16.7.96 itself was unconstitutional and violative of
Article 16(2) of the Constitution. The Government was further directed to recruit candidates on the basis of inviting applications all over the State. After holding that the selection process was unconstitutional, the only relief granted in respect of persons who were appointed already by taking advantage of the fact that no specific order of Stay was granted. In their cases, the division bench held that in the peculiar factual situation and keeping in view of the fact that hitherto such selections have been made for number of years, the question of termination of the services of persons already appointed was left to the discretion of the State. Therefore, even for persons who were already selected, discretion is given to the State. Hence it can never be said that the Bench had granted relief to candidates who were already appointed.
19.The question arose before the division bench was whether the selection by considering the District wise seniority was violative of constitution or not. After holding that it is unconstitutional, the Bench held that in future, selections should be made only by inviting applications from all over the State. Further the Supreme Court had refused to grant any interim stay of the judgment of the Division Bench. The attempt to contend that the candidates were in the advanced stages of selection or due to the administrative inaction of the authorities by delaying the grant of appointment order that a petitioner had failed to get appointment cannot be urged before this court. It is necessary to state that there cannot be estoppel against a statute, more so against the constitution.
20. It is therefore necessary to refer to the judgment of the Supreme Court in Post Graduate Institute of Medical Education & Research, Chandigarh and others v. K.L.Narasimhan and another reported in (1997) 6 SCCC 283. The following passage found in paragraph 16 may be usefully extracted below:
"16. ... This question was considered in G.S.Gill case. Therein, the High Court has given direction to dereserve the post and to throw open the same to the general candidates. While considering the ratio in CAG case and other decisions, this Court had pointed out that the Court cannot give mandamus to disobey the Constitution and principle of reservation enshrined in Articles 15(4) and 16; nor is the Court competent to direct the authorities to disobey the constitutional mandate. It would, therefore, be manifestly illegal to seek a mandamus or direction;"
(Emphasis added)
21. In the present case, this Court is of the view that the allegation of discrimination between two sets of persons among the same class does not stand to reason. In the case of candidates not getting appointment orders, the judgment squarely stares on the face of those candidates. In cases where appointment orders were already granted, it is only left to the discretion of the State Government to deal with their termination. Therefore, there can be no comparison between the appointed candidates and the candidates after selection was not issued with appointment orders.
22.It is also necessary to refer to the judgment of the Supreme Court in Divisional Forest Officer and others v. M.Ramalinga Reddy reported in (2007) 9 SCC 286, wherein it was held that if an appointment was not made pursuant to any selection if no offer of appointment was issued, the Court cannot grant any direction to give such appointment.
23.Subsequently, in State of Madhya Pradesh and others v. Sanjay Kumar Pathak and others reported in (2008) 1 SCC 456, the Supreme Court held that selected candidates do not have a legal right and the Court in the absence of any legal right cannot act on the basis of sympathy alone. In paragraphs 24 to 26, it was observed as follows:-
"24.In Pitta Naveen Kumar v. Raja Narasaiah Zangiti this Court observed:(SCC p.273, para 32) "32. The legal position obtaining in this behalf is not in dispute. A candidate does not have any legal right to be appointed. He in terms of
Article 16 of the Constitution of India has only a right to be considered therefor. Consideration of the case of an individual candidate although ordinarily is required to be made in terms of the extant rules but strict adherence thereto would be necessary in a case where the rules operate only to the disadvantage of the candidates concerned and not otherwise."
In a situation of this nature, no appointment could be made by the State in absence of the select list. The State could not substitute itself for the Selection Committee.
25. Furthermore, ordinarily, the writ court should not, in absence of any legal right, act on the basis of sympathy alone.
26.In Ramakrishna Kamat v. State of Karnataka albeit in the light of right of regularisation in service, this Court opined: (SCC p.378, para 7) "7. ... It is clear from the order of the learned Single Judge and looking to the very directions given, a very sympathetic view was taken. We do not find it either just or proper to show any further sympathy in the given facts and circumstances of the case. While being sympathetic to the persons who come before the Court the Courts cannot at the same time be unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment."
(See also Maruti Udyog Ltd. v. Ram Lal, State of Bihar v.Amrendra Kumar Mishra, Regional Manager, SBI v. Mahatma Mishra and State of Karnataka v. Ameerbi)" (Emphasis added)
24.The same view was also re-itereated in the subsequent judgment in Jitendra Kumar and others v. State of Haryana and another reported in (2008) 2 SCC 161.In paragraph 41 it was observed as follows:
"47. It is therefore, evident that whereas the selectee as such has no legal right, the superior court in exercise of its judicial review would not ordinarily direct issuance of any writ in absence of any pleading and proof of mala fide or arbitrariness on its part. Each case, therefore, must be considered on its own merit."
25.On the risk of being repetitive it must be stated that a selection process hit by the vice of constitutional breach, no Court especially a Court which was bound by an order of the Division Bench can give a direction contrary to the spirit and the terms of the Division Bench order which is in force. Even assuming if a person's name is in the select list, there is no right for him to seek for a direction to appoint him through Court orders. This question has been answered by the Supreme Court in more than one decision.
26.The Supreme Court vide its judgment in Aryavrat Gramin Bank v. Vijay Shankar Shukla reported in (2007) 12 SCC 413. has held that a candidate included in the panel has no right to get a post. Even if there are any improper appointments made, that cannot be cited as a reason to get directions from the Court.
27.Further the Supreme Court in the case of S.S.Balu v. State of Kerala reported in 2009 2 SCC 479 had held that mere inclusion of a person's name in a rank list, there is no right to get appointment and it is open to the Government to fill up or not to fill up such posts. In such cases, no mandamus will lie against the State for the grant of appointments.
28.Therefore, the contentions raised by the petitioners that this Court must mould the relief by giving directions to State Government to grant appointment orders will be in direct conflict with the dictum laid down by the Division Bench in Unemployed Secondary Grade Teachers Welfare Association, Society (cited supra).
29.In the light of the above, this Court is unable to grant any relief to the writ petitioners. However, it is open to the petitioners to move the Hon'ble Supreme Court to get appropriate direction, if any, in respect of hard facts pointed out by them before this Court.
30. Accordingly, all the writ petitions will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions are closed.
08.12.2009 Index : Yes Internet:Yes svki/vvk To
1.The Director of Elementary Education, Office of the Directorate of Elementary Education, College Road, Chennai.
2.The District Collector, Salem, Salem District.
3.The District Elementary Educational Officer, District Elementary Education Office, Salem, Salem District.
4.The Chief Elementary Education Officer, Salem, Salem District.
5.The Revenue Divisional Officer, Salem, Salem District.
K.CHANDRU,J.
Svki/vvk W.P.Nos.1144 and 1145,456,505, 4978,10400,14056,of 2009, W.P.Nos.12843, 12844,15448,16161, 20091, 26621 to 26626, 26650, 26651,28477,28989,29020,29354, 29449,30131,30219,of 2008 08.12.2009