K. Subramaniam v. The District Forest Officer, Tiruchirapalli

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:20-06-2012CORAMTHE HON'BLE MR.JUSTICE VINOD K. SHARMAWRIT PETITION No.4974 of 2007and M.P.Nos.1 and 2 of 2012(O.A.No.8016/2001)K. Subramaniam.... Petitionervs1. The District Forest Officer, Tiruchirapalli2. The Assistant Director O/o District Employment Exchange, Tiruchirapalli .... RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia praying this Court to issue a Writ of Mandamus directing the 1strespondent to appoint the petitioner as Forest Guard withretrospective effect from the date of appointment of his immediatejunior so selected pursuant to his selection on the basis ofinterview held on 30.11.99 and further tests thereafter and grantconsequential benefits within a time frame.For petitioner:Mr.M. RaviFor Respondents :Mr.N. InbanathanGovt.Advocate (Forests)ORDERThe petitioner has filed this writ petition, for issuance of aWrit in the nature of Mandamus, directing the 1st respondent toappoint the petitioner as Forest Guard with retrospective effect from https://hcservices.ecourts.gov.in/hcservices/ the date of appointment of his immediate junior in pursuant to hisselection in the interview dated 30.11.99 and further tests, withconsequential benefits, within a time frame.2.The petitioner belongs to Backward Class and had passedHigher Secondary Course Examination with Science Subject. Thepetitioner was serving as Physical Training Instructor (Part-Time) inthe Territorial Army, Trichy Bn.117. He had registered his name withthe Employment Exchange (Regn.No.7308/87), Tiruchirapalli foremployment.3. The name of the petitioner was sponsored for selection andappointment as Forest Guards in the Forest Department of Governmentof Tamil Nadu. The petitioner appeared for interview on 30.11.1999.On verification of all original certificates, the petitioner wassubjected to physical fitness test and medical test.4.While the petitioner was waiting for his appointment letter,the petitioner was deputed to Jammu and Kashmir by the TerritorialArmy to defend the Country's border. After his return from Jammu andKashmir, when the petitioner contacted the Employment Exchange,Tiruchirapalli in July 2001 for renewal of his registration, he cameto know that in view of his selection as Forest Guard by the ForestDepartment his registration could not be renewed. The petitioner thereafter approached the 1st respondent forappointment, but he was not given appointment on the ground thatintimation of his selection was sent by registered post withacknowledgment due, but it was returned “unserved”.5.The petitioner approached the Army Authorities, and a D.Oletter was written by the Army Authorities, pointing out the reasonfor non receipt of the letter by the petitioner. A request was alsomade to consider the case of the petitioner for appointment. The D.OLetter dated 13th September 2001 reads as follows:SKM/DO/PERS13 Sept 2001Dear Mrs Jayanthi, https://hcservices.ecourts.gov.in/hcservices/ APPOINTMENT OF FOREST GUARD – REGARDINGI am writing this DO letter to seek yourkind help on the subject for a serving soldier of117 Infantry Battalion (TA) THE GUARDS.2. No.10452630A Nk K. Subramanian was calledfor interview of a forest guard vide DistrictEmployment Office, Tiruchirapalli letter No.A.A267/99, 268/99, 269/99, 276/99 dated 26 Nov 99.He attended the interview on 30 Nov 99 and wentto serve in Kashmir Valley with his unit. Nointimation was received by him of his selection.It was only when he went in July 2001 toemployment exchange office for the renewal of hiscard that he was told of his selection by theforest department.3. He immediately reported to the Office ofthe DFO, Trichy and was told that letter ofappointment was sent to him by post which he hasnot received till date. A letter to that effectfrom the Post Master of his village is enclosedfor your reference.4. The boy has just returned after servingin the Kashmir Valley for one year. May I requestyou to please help him out to get the appointmentwhich he has missed without any fault of his.Thanking you in anticipation.With regards,Yours sincerely ...Shri K. ChidambaramConservator of Forest DepartmentO/o District ForestTiruchirapalli https://hcservices.ecourts.gov.in/hcservices/ Copy to:Mrs.Jayanthi MurahDistrict Forest OfficerTiruchirapalliFor your info and necessary action please.6.It is not disputed by the respondent that this letter wasreceived from the Army Authorities, but no action on it was beentaken for the reason, that on account of non-joining of thepetitioner, the list of sponsored candidates was sent back toDistrict Employment Exchange. The respondents were also of the viewthat unfilled posts can be filled up by way of fresh selection.Though on the file this decision was taken, but no order was servedon the petitioner, nor the post was advertised.7.The petitioner approached the Tamil Nadu AdministrativeTribunal in the year 2001 after filing representation with therespondent seeking appointment in pursuant to selection, as thepersons lower in merit than petitioner were given appointment,whereas the petitioner was not given appointment only for want ofservice of letter of appointment. The learned counsel for the petitioner contended that the actionof the respondent in refusing to appoint the petitioner, whileappointing the other selected candidates is arbitrary anddiscrematory thus is hit by Article 14 and 16 of Constitution ofIndia.8.The learned counsel for the petitioner, on instructionsfrom the petitioner, fairly conceded, that in view of the fact thatthe petitioner has been doing some part time job during this period,he would not claim any salary from the date of his selection tillappointment, on the ground of “No work no pay” but he may be givenappointment from the date when the persons junior to the petitionerwere appointed with other consequential benefit except monetarybenefit. https://hcservices.ecourts.gov.in/hcservices/

9.The writ petition is opposed by the respondents, bysubmitting that the petitioner cannot be given appointment at thisstage for want of vacancy. The contention of the learned counsel for the respondents isthat the appointment letter was sent to the petitioner at the lastknown address and it was the petitioner who did not join the postinspite of offer of appointment, therefore, has no locus-standi tofile this writ at this stage.10.On consideration, I find that the writ petition deserves tosucceed. Though normally this Court does not issue direction forappointment of a candidate on his failure to join duty, as theunfilled vacancy is required to be offered to the person next in themerit list or filled up in accordance with law, but in this case, itis admitted that the post against which the petitioner was selectedwas not offered to the person next on merit, but was left vacant tobe filled up later. It is also not disputed that a letter was received from theArmy Authorities disclosing the reasons for non receipt of theletter by the petitioner since he was deputed to Jammu and Kashmir inthe interest of nation.11.It is also not in dispute that immediately on return fromJammu and Kashmir, the petitioner approached the respondents forappointment and to join the duty, but his request was refusedwithout passing any written order. 12.The petitioner is fair in foregoing his claim of backwages, therefore, in view of the peculiar circumstances of this caseand keeping in view that the petitioner inspite of being dulyselected for the post could not join the duty due to the call of theNation, the writ petition is allowed. A Writ in the nature ofMandamus is issued, directing the first respondent to giveappointment to the petitioner as Forest Guard pursuant to hisselection with effect from the date of his selection subject tocondition that the petitioner shall not be entitled any monetarybenefit on account of retrospective appointment. The firstrespondent is directed to issue appointment letter as stated above https://hcservices.ecourts.gov.in/hcservices/ to the petitioner within four weeks of the date of receipt ofcertified copy of this order. No costs. Consequently, the connectedMps are closed.Sd/Assistant Registrar /True Copy/Sub Assistant Registrar srTo1. The District Forest Officer, Tiruchirapalli2. The Assistant Director O/o District Employment Exchange, Tiruchirapalli+1cc to Special Government Pleader (F), Sr.No.35045+1cc to Mr.Mr.M. Ravi, Advocate, Sr.No.35267 W.P.No.4974 of 2007JP(CO)MS:08/08/2012