B. Narayanaswamy v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 08..02..2008Coram:The Hon'ble Mr. Justice K.CHANDRUW.P. No. 20486 of 2007B. Narayanaswamy.. Petitioner Vs.1.The State of Tamil NaduRep. by Secretary to GovernmentHigher Education Department,SecretariatFort St. GeorgeChennai – 92.The Director of Collegiate EducationCollege RoadChennai-600 006. .. RespondentsPetition filed under Article 226 of the Constitution of Indiaseeking for issuance of writ of Certiorarified Mandamus callingfor the records relating to G.O. Ms. No. 16 Higher Education (F2)Department dated 01.02.2007 issued by the first respondent,quashthe same insofar as it appoints the petitioner as Lecturer inTamil Nadu Collegiate Educational Services only with effect from02.3.2006 and ithout backwages and consequently direct therespondents to consider and appoint him as Lecturer in Tamil NaduCollegiate Educational Services from the due date with allconsequential monetary benefits.For Petitioners : Mr. Karthick RajanFor Respondents : Mr. Pa. Kadirvel, AGP (Education)COMMON ORDERHeard the arguments of Mr. Karthick Rajan, counsel for thepetitioner and Mr. Pa. Kadirvel, learned Assistant GovernmentPleader representing the respondents and perused the records. 2.In this writ petition, the petitioner is challenging theorder of the Government in G.O. Ms. No. 16 Higher EducationDepartment dated 01.02.2007. Though the order passed by thefirst respondent Government is in favour of the petitioner, the https://hcservices.ecourts.gov.in/hcservices/ petitioner is only aggrieved about the relaxation that has beengranted by the Government Order was only with effect from02.3.2006 in terms of the power exercised under Rule 48 of theGeneral Rules of the Tamil Nadu State and Subordinate ServiceRules.The grievance of the petitioner is that the saidexemption ought to have been granted from the date the petitionerwas qualified to have been appointed as the Lecturer under theTamil Nadu Collegiate Education Services and not from aprospective date. 3.It is seen from the records that the petitioner wasappointed as a Junior Assistant on 08.01.1982 and subsequently waspromoted as an Assistant and finally as an Office Superintendent.All these categories of employment come under the Tamil Nadu Stateand Subordinate Services and the petitioner was working as a non-teaching staff in a Government College. The petitioner claimsthat even at the time of entering into subordinate service, he hadM.A. (Tamil) Degree and thereafter, in the year 1990, he hadpassed the State Level Screening Test (SLST). Besides thesequalifications, which are requisite for a Lecturer post in theCollegiate Service, the petitioner also claims to possess M.Ed.Degree and BLIS. Under the Tamil Nadu Collegiate Service, itis claimed that the post of Lecturers can be filled up by directrecruitment, recruitment by transfer among tutors andDemonstrators (this post has been abolished subsequently) andrecruitment by transfer from the category of Headmaster in theTamil Nadu Subordinate Services and thereafter, if no qualifiedand suitable candidates are available for appointment, thentransfer from any other service can be made. It must be notedthat the question of there being any dearth of qualified andsuitable candidates being available does not exist in this Stateand, therefore, the petitioner's reliance that he ought to havebeen recruited by transfer from the non-teaching staff post, whichis a Ministerial post, held by him does not arise. 4.According to the petitioner, certain persons who hadsuch qualifications were appointed by transfer during the year1979-81 and when the petitioner's turn came, there was a ban onrecruitment from the year 1992. Some of the persons, who weredenied such appointment, moved the Tamil Nadu AdministrativeTribunal and the Tribunal by its order dated 24.6.2002, directedthe State to consider the case of 14 applicants, who were non-teaching staff, to the post of Lecturer. The respondent Statedid not consider those cases and after Contempt Application wasfiled, the respondent State appointed three non-teaching staff asLecturers by an order dated 04.8.2003. It was correctlycontended by the State that a person can be appointed as Lectureronly as per the norms of the University Grants Commission [forshort, 'UGC'] and the pre-requisite was that they should havepassed the SLST examination. The petitioner also maderepresentation to appoint him as Lecturer by invoking the power https://hcservices.ecourts.gov.in/hcservices/ under the Special Rules, viz., appointment by transfer. 5.The petitioner filed writ petition being W.P. No. 6006of 2006 directing the respondents to appoint him as a Lecturerpursuant to the order of the Tamil Nadu Administrative Tribunalgranted in O.A. No. 5636 of 2000 and the said writ petition wasallowed by this Court vide order dated 02.3.2006. In fact, inO.A. No. 5636 of 2000, the Tribunal, by its order dated 24.6.2002,merely directed the State to consider the case of the persons likethe petitioner on par with the persons, who were appointed earlierby Government Order dated 19.11.1994. This kind of transferoverlooks the fact that invocation of such a power had got a pre-requisite condition, viz., that there should not be any qualifiedor suitable candidate available by other methods. There is noright on the part of either non-teaching staff or Ministerialstaff to compel the Government to recruit those persons merelybecause they are having necessary qualifications. In fact, asper the UGC norms, the post will have to be advertised on allIndia basis and with reference to the Collegiate EducationalService, the recruitment will have to be done by the Teachers'Recruitment Board. The petitioner, on the basis of the orderspassed by this Court, sent representation to the Government toappoint him for the post of Lecturer. In fact, by an orderdated 20.4.2006, the respondent informed the petitioner that hewas not qualified for appointment as Lecturer as per the UGCnorms and the same was also brought to the notice of the Tribunalwhen Contempt Application No. 209 of 2003 was filed before theTribunal. 6.Not satisfied with this reply, the petitioner filed aContempt Petition before this Court being C.P. No. 478 of 2006.In order to avoid any punishment, the Government issued G.O. Ms.No. 16 Higher Education Department dated 01.02.2007 and declaredthat the petitioner (who is already retired from service asSuperintendent on 31.10.2006) is deemed to have been appointed asLecturer in the same Government College where he was working,viz., L.N. Government Arts College, Ponneri, with effect from02.3.2006, ie., the date this Court directed the implementationof the order of the Tribunal. Even in doing so, necessaryregularisation were to be given by the Government under Rule 48 ofthe General Rules since the appointment of the petitioner violatesthe pre-requisite condition made for invoking the clause oftransfer, viz., that there being no suitable candidates availableby the other modes of recruitment. It was stated by thisretrospective appointment that the salary of the petitioner wasfixed in the scale of Lecturer, ie., Rs. 8000-275-13500 and hispension was also directed to be revised. It is also stated thatthis cannot be quoted as a precedent as it was granted on thebasis of the observation made by this Court and that since thepetitioner had retired on 31.10.2006 and had not physically workedin the post of Lecturer, no backwages should be paid. is this https://hcservices.ecourts.gov.in/hcservices/ order that is under challenge in this writ petition.7.It must be stated that on the basis of the said order,the Contempt Application was closed by this Court on 05.02.2007and it is seen from the said order that the petitioner had notobjected to the closing of the Contempt Application and it ispresumed that the order had been substantially complied with bythe Government. 8.Even otherwise, a counter affidavit dated 23.7.2007 hasbeen filed on behalf of the respondents. It is contended thatthere was no obligation for the Government to appoint any non-teaching staff / Ministerial staff to be appointed as a Lecturerby invoking the power of transfer from one service to the otherservice. In paragraphs 6 and 7 of the counter affidavit, it isstated as follows:Para 6:"It is submitted that the method of directrecruitment envisaged in the Special Rules for TamilNadu Collegiate Education is still in vogue and onlyif no qualified and suitable candidates areavailable by the above method, recruitment throughother methods has to be adopted. It is submittedthat as per the order dated 24.6.2002, in the batchcases of Original Applications, only three personswere found qualified and they were appointed asLecturers. It is submitted that appointment of 14persons who were appointed earlier, was foundirregular and the Government have relaxed the rulerelating to method of appointment in their cases.The rule relating to the method of appointment wasrelaxed in the case of appointment of the threepersons also as per the orders of the Hon'bleTribunal in the above said batch cases. Thepetitioner was not qualified at that time as thevalidity of the SLET/NET passed by him had expiredin 1995 and hence he was not eligible forappointment as a Lecturer.Para 7:.... The petitioner's claim could not beconsidered as the Teachers Recruitment Board haddirectly started the process of recruitment ofLecturers by direct recruitment as per Rule 2(a)(1)of the Special Rules for Tamil Nadu CollegiateEducational Service as mentioned in para-4above...."9.However, it is the case of the respondent that suchorders had become final as now indicated in the counter affidavitwhich is extracted above. But at the same time, it must be seenthat the petitioner cannot by filing successive petitions to arm https://hcservices.ecourts.gov.in/hcservices/ twist the Government from violating all the Special Rules ingetting the appointment to the post of Lecturers. It must benoted that the Lecturer post is a teaching post and only qualifiedcandidates can be appointed in terms of the existing SpecialRules. The petitioner's category is only a residual categoryand recruitment from such a category cannot be invoked as a matterof routine and only in exceptional cases, such a power can beinvoked considering the fact that the post in which the petitioneris trying to get appointed is a teaching post. It is doubtfulwhether such a residual power can be invoked by the Government.Even in the residual power found in Rule 2(a)(5) of the SpecialRules, there is a pre-condition and unless that condition issatisfied, the petitioner cannot get appointed to any post in adifferent service. When thousands of candidates are available inthe open market, who are more qualified and are also waiting for anumber of years, it is rather unfortunate to compel the Governmentto choose within the narrow campus of the categories of non-teaching staff merely because they have acquired some degrees andthat too, while in Government service. If the non-teaching staffor Ministerial staff are qualified and have aspiration to getposted as teaching staff, they should apply along with the directrecruitment candidates and compete in the selection process andthen get appointed to the said service and not by this ingeniousmethod of getting the appointment through back door. In anyevent, the question of the petitioner being appointed as aLecturer under the Tamil Nadu Collegiate Services will arise onlywhen the Rules are relaxed in favour of the petitioner under Rule48 of the General Rules. Such a power to relax any existingService Rule can be made by the Government only in public interestand not placating any particular individual. 10.In the present case, the respondent State was compelledto make a relaxation under Rule 48 in favour of the petitioneronly on the basis of the order of the Tribunal and faced with athreat of contempt and it has not been exercised for the reasonfor which the said power has been vested on the Government.Further, the power to relax Rule 48 of the General Rules can bemade either prospectively or retrospectively and in the presentcase, the Government has relaxed the Rule in favour of thepetitioner only from the date of the order of this Court, viz.,02.3.2006. The direction given by this Court in W.P. No. 6006of 2006 reads as follows:"Considering the limited relief sought for in thewrit petition, there will be a direction to therespondents to implement the order of the Tamil NaduAdministrative Tribunal in C.A. No. 5636 of 2000with reference to the petitioner, if there is nolegal impediment, within a period of twelve weeksfrom the date of receipt of a copy of this order." https://hcservices.ecourts.gov.in/hcservices/

11.Therefore, there is no positive direction in favour ofthe petitioner and the Government, on the advise of the SpecialGovernment Pleader, passed the present order. While this Courtis not inclined to go behind the nature of advise given to theGovernment, but, however, it is stated that there is nofundamental right for any Government servant to force theGovernment to relax any particular Special Rule and it is not amatter of course where such an order can be granted. It is alsoseen that the petitioner got superannuated on 31.10.2006 as anOffice Superintendent and it is unthinkable as to how he can getthe post of Lecturer and when he had not taught any single classeven for a day. Even otherwise, the Government had grantedrelaxation from the date of the order of this Court. This itselfis a bonanza for the petitioner and by virtue of the same, he willhave enhanced pension in the post of Lecturer even though he hadnot taught even for an hour for college students. 12.It is a real sad state of affairs that the person, who,otherwise, is not qualified to enter into the post in Collegiateservice, by ingenious method had now compelled the Government torelax a vital rule in his favour and also partially succeeded ingetting the order. The petitioner ought to have been satisfiedwith the order impugned in the writ petition. His presentattempt to further make an improvement, viz., to get his deemedappointment extended to ten years backwards and also arrears ofsalary for that period is an exercise in futility and the writpetition is misconceived and devoid of any merits. Accordingly,the writ petition will stand dismissed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrar griTo1.The Secretary to GovernmentState of Tamil NaduHigher Education DepartmentFort St. GeorgeChennai – 9 https://hcservices.ecourts.gov.in/hcservices/

2.The Director of Collegiate EducationCollege RoadChennai-600 006.+1cc to Govt. Pleader Sr 6555IV(CO)km/14.2.W.P. No. 20486 of 2007