THE HON’BLE MR v. The Director of Elementary Education, Office of the Directorate of Elementary Education

respondent in Na.Ka. No.8421/2008/A3 dated 17-06-2008 orderpassed by this Honourable court in W.P.NO. 3701 of 2008 dated 09-04-2008 and the consequent restoration of petitioner's name inthe Live Register maintained by the Employment exchange Erode.(in W.P.30131/08)14.directing the respondents to give appointment to thepetitioner as Secondary Grade Teacher from the date on which thepersons who participated along with the petitioner forcertificate verification and given appointment as Secondary GradeTeacher(in W.P.30219 /08)Writ of certiorarified mandamus:- calling for the recordsrelating to Na.Ka.No.7360/L3/09 dt.24.4.2009 passed by the FirstRespondent and quash the same and direct the First respondent toappoint the petitioner in the post of Secondary Grade Teacherwith effect from 28.2.2008 on par with the petitioner's juniorsS.Rajalakshmi and P.Sudha with all consequential benefits.(W.P.14056/09) For Petitioners : W.P.Nos.26650,26651,29354 29449 & 30131 of 2008 W.P.Nos.1144,1145 of 2009 : Mr.S.Ganesh W.P.Nos.26621 to 26626 of 2008W.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 M/s. P.V.S.Giridhar AssociatesFor Respondents:Mr.A.C.Manibharathi,G.A. for the stateC O M M O N O R D E RHeard both sides. Since the issue involved in all these writpetitions are common, all the writ petitions were heard togetherand a common order is passed.2. In all these writ petitions, the names of the petitionerswere sponsored to the post of Secondary Grade Teacher by the https://hcservices.ecourts.gov.in/hcservices/ respective district Employment Exchange for selection held forthe year 2007-2008. In some of the cases, the petitioners'certificates which were already verified were sent for furtherverification since they had migrated from one Employment Exchangeto another Employment Exchange. The Government had directedverification of such certificates in case there was anysuspicion. But in no case, an appointment order was given infavour of the petitioners. In some of the cases, after thecertificate verification, though the certificate of migrationgiven by the petitioners was also found to be genuine, but therewas still some dispute. When the petitioners were about to begiven their appointment orders, the writ appeal in W.A.No.119 of2008 filed by the Unemployed Secondary Grade Teachers WelfareAssociation, Society Reg.No.48.2007 v. The State of Tamil Nadu,rep by its Secretary came to be heard by a Division Benchpresided by P.K.Misra,J.(as he then was) before Madurai Bench. 3. The contention of the said Association made before thesingle Judge as well as before the Division Bench was that theorder of the State Government made in G.O.Ms.No.447 EducationScience and Technology Department dated 16.07.1996 in so far asit restricts the selection and appointment to the post ofSecondary Grade Teachers on the basis of District Wise Senioritymaintained by the Employment Exchange was ultra vires andunconstitutional. The appeal was allowed by the Division Benchvide its judgment dated 14.05.2008. The said judgment wassubsequently reported in 2008 Writ L.R. 747. 4. The Division Bench found fault with the action of theState Government and it was held that selection of candidates byrestricting the choice to various district Employment Exchangebased on their residential qualification was violative ofArticles 16(2), 14 and 19(1) of the Constitution. The DivisionBench in Paragraphs 34 and 35 held as follows:34. As a matter of fact the decision of theSupreme Court in (2002) 6 SCC 562 (cited supra)is a complete answer to such imaginary excusesputforth by the State. In a very recent decision,the Supreme Court has expressed its grave concernrelating to possible balkanization of the countrybecause of the spread of non-tolerance displayedin some parts of the country. The submissionswhich are now being made by the learnedAdditional Advocate General or the counsel forthe Interveners bring only to fore the aboveunwelcome trend. We do not think that such acourse can ever be countenanced. As a citizen ofIndia one has to imbibe the spirit of theConstitution and follow the adage made famous byno less a personality than Justice Krishna Iyerthat "Kashmir to Kanyakumari, India is one". https://hcservices.ecourts.gov.in/hcservices/ However, a reading of the counter filed by theState Government and the stand so painstakinglypuforth by the learned Addl.Advocate General,though more in desperation rather than with anyconviction, one gets the feeling that even thoughKashmir to Kanyakumari – India may be one,Dharmapuri to Kanyakumari – Tamil Nadu is notone. The net result of the policy hithertofollowed by some curious logic is that a dulyqualified person, who is born in one part of theTamil nadu and gets himself registered in thedistrict of his residence, cannot seek employmentunder the Government in another district of thevery same State. If this does not amount todenial of right to equality under Article 14 andmore particularly Article 16(2) and the rightunder Article 19(1), we fail to imagine what elsecan be the denial of such fundamental rights.35. In view of the above discussion, in ourconsidered opinion, confining the question ofselection to the candidates sponsored by theEmployment Exchange of a particular districtwithout considering the willingness, availabilityand suitability of similar candidates who havebeen registered in the other district employmentexchanges, is clearly violative of fundamentalrights and, therefore, cannot be countenanced.The impugned G.O.Ms.No.447, dated 16.07.1996 isliable to be quahsed. Accordingly, a directionis issued to consider the question of selectionof eligible candidates, even though suchcandidates' names have been registered in otherDistrict Employment Exchanges. For the aforesaidpurpose, obviously intimation is required to begiven to all the District Employment Exchangesand public advertisement throughout the State isrequired to be made so that any willing candidateeven though registered in a different districtcan offer his candidature."(Emphasis added)5. Before the Division Bench, it was also pointed out thatat the time of hearing of the writ petitions and writ appeals,several appointments were already been granted based upon theseniority in the district Employment Exchanges and therefore,their appointments should not be disturbed.6. The Division Bench after holding that the selection basedupon the seniority in the District Employment Exchanges was ultravires and unconstitutional, in paragraph 36, held as follows:"36.The next question is regarding the selectionalready made. When the matter was entertained by thelearned single Judge, an order of interim stay had https://hcservices.ecourts.gov.in/hcservices/ been granted. Subsequently, however, when the writpetitions were dismissed and the Division Bench didnot pass any order of interim stay but only observedthat any selection made shall be subject to theresult of the writ appeals, many such appointmentshave been made. Even though we do not appreciate thealacrity with which such appointments have been madein the interregnum by taking advantage of the factthat no specific order of stay was granted, we feelin the peculiar factual situation and particularlykeeping in view the fact that hitherto suchselections have been made for number of years, thequestion of termination of the persons alreadyappointed is left to the discretion of the StateGovernment. However, in respect of the vacancies yetto be filled up, the State Government as well asother authorities are required to make the selectiononly after inviting applications from all over theState."(Emphasis added)7. In so far as the petitioners case are concerned, theywere not given with any appointment order. In some cases,verification process was continued. In some other cases, afterverification, candidates were awaiting for appropriateappointment orders. Hence, they sent representations to therespondents seeking for grant of appointment orders. When thesame was not forthcoming, they have filed the present writpetitions seeking for a writ of mandamus or any other appropriatewrit before this Court to the respondents to give appointments tothe petitioners as Secondary Grade Teachers from the date onwhich persons who had participated along with the petitioners forcertificate verification and got their appointment as SecondaryGrade Teachers. 8.On notice from this Court, in some of the writ petitions,the third respondent has filed a counter affidavit. In thecounter affidavit, the stand taken by the respondent was thatsince this Court had declared the selection based upon theEmployment Exchange seniority of a particular revenue districtwas unconstitutional and the Supreme Court not having grantedstay order, the question of grant of any appointment to thepetitioners may not arise. It is also brought to the notice ofthis Court as against the Division Bench order in UnemployedSecondary Grade Teachers Welfare Association, Society's case(cited supra) the State Government of Tamilnadu went on appeal inSpecial Leave to Appeal (Civil) Nos.18227 and 18228 of 2008. 9.The Supreme Court on 20.10.2008 passed an interim orderwith the following effect:-Leave granted.In so far as the applications for impleadment, theyshall be brought up along with the main matters.Having regard to the fact that a large number of https://hcservices.ecourts.gov.in/hcservices/ vacancies in the State have remained unfilled, theState Government sought leave to fill the posts. Onthe submissions made, we make the following interimorder, accepting the State's proposal: Appointment tothe post of Secondary Grade Teachers may be made bythe State Government, by calling the list of eligiblepersons from all the District Employment Exchangesand by newspaper Public Advertisements throughout theState so that any willing candidate even thoughregistered in different Districts can participate inthe selection. It shall be made clear in the PublicAdvertisement that the selection would be based onthe Employment Exchange seniority. It shall also bemade clear that any person selected and appointed ina particular School within a District cannot aspirefor or seek transfer to another School outside theDistrict."This aforesaid arrangement will apply for anyrecruitment to be made pending disposal of theseappeals".(Emphasis added)10.Even before the Supreme Court, some of the candidatessought for impleadment and those applications were tagged onwith the main appeal. Therefore, in the context of the Statetaking umbrage under the order of the Division Bench (which wasnot stayed by the Supreme Court), the present petitioners havemade their contentions.11.On behalf of the petitioners arguments were addressed byMr.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 wererepresented by Mr.A.C.Manibharathi, learned Government Advocate.12.On behalf of the petitioners, it was contended that thisCourt can mould the relief in the light of the observations madeby the Division Bench in Paragraph 36 of the order extractedabove. It was stated that the Division Bench was aware that therewere candidates who were selected and candidates who were alsoappointed. The concept of selection and appointment were noted onan interchangeable basis. It was also stated that thepetitioners for no fault of them should not be denied theappointment only because, in some cases, the certificateverification was delayed by the authorities. It was also statedthat some of the persons who stood in queue along with thepetitioners have been given appointment. Therefore grantingappointment to one set of persons and denying the same to othersin the same class is violative of Article 14 of the Constitution.13.In support of his contention, Mr.P.V.S.Giridhar, learnedcounsel for some of the petitioners brought to the notice of thisCourt the following decisions of the Supreme Court, wherein, theCourt taking into account circumstances of such cases had grantedrelief. https://hcservices.ecourts.gov.in/hcservices/

1.Purushottam v. Chairman, M.S.E.B and another (1999) 6 SCC492.Bhupendra Singh v. Regional Joint Director of Educationand others (2006) 10 SCC 298.3.Sonia v. Oriental Insurance Co. Ltd and others (2007) 10SCC 62714.In the first case reported in (1999) 6 SCC 49, theSupreme Court held that the right of a person to be appointedagainst the post to which he was selected cannot be taken away onthe pretext that the said panel in the meantime had expired orthat the post had already been filled up by somebody else. Inthat case as against the selection of a candidate some othercandidate had been appointed. The Supreme Court in paragraph 4 ofthe said judgment held that usurpation of the post by somebodyelse is not on account of any defect on the part of theappellant, but on the erroneous decision of the employer himself.In that view of the matter as the appellant's right to beappointed to the post was illegally taken away by the employer,the impugned order was set aside and relief was granted. In thepresent cases, in the teeth of a decision of the Division bench(not stayed by the Supreme Court), the appointments or selectionsmade cannot be valid appointment. 15. The second decision reported in (2006) 10 SCC 298 aroseout of decline of approval by the authorities for appointmentmade to the post of Assistant Teacher. It was contended that theJoint Education Director refused to grant approval on the groundthat no approval was taken prior to the selection of theappellant. The Basic Shiksha Adhikarai (BSA) in that caseclarified the position by his letter dated 13.09.1999 to theJoint Education Director. It was contended that the appointmentwas made after following proper procedure and that BSA had takenthe decision with the approval of District Inspector of Schools(DIOS). In that context, the Supreme Court held that in theparticular facts of the case, since the recruitment process wasinitiated prior to the Government's order and since DIOS hadhimself referred the matter of selection to the post of AssistantTeacher to BSA and in view of the clarification given by BSA,relief was granted to the candidate in question. The saiddecision has no relevance to the case on hand.16.In the third decision reported in (2007) 10 SCC 627, thequestion arose in the context of a Schedule Caste candidateclaiming vacancy reserved for Scheduled Tribe post in terms ofthe promotional policy. Under the relevant time, the policypermitted conversion of a ST vacancy into SC vacancy. Butsubsequently, by an Office Memorandum the policy was reversed.It was noted that such an Office Memorandum cannot over ride theadvertisement dated 30.10.2003 inviting applications for thepost to the prejudice of the candidate who is midway through hisrecruitment process. Therefore, it was held that the candidate https://hcservices.ecourts.gov.in/hcservices/ who applies for a particular post will be governed by the Ruleprevailing on the date on which applications were invited and noretrospective effect can be given to the revised policy. 17. The question for consideration in the present cases isnot whether the petitioners have gone through the selectionprocess or not. If at all there is any selection, the selectionwas purely based upon Employment Exchange seniority. But the non-issuance of appointment orders cannot be raised in the teeth ofthe Division Bench judgment holding the field. 18.It must be noted that the Division Bench had held thepolicy of recruitment as per G.O.447, Education, dated 16.7.96itself was unconstitutional and violative of Article 16(2) of theConstitution. The Government was further directed to recruitcandidates on the basis of inviting applications all over theState. After holding that the selection process wasunconstitutional, the only relief granted in respect of personswho were appointed already by taking advantage of the fact thatno specific order of Stay was granted. In their cases, thedivision bench held that in the peculiar factual situation andkeeping in view of the fact that hitherto such selections havebeen made for number of years, the question of termination of theservices of persons already appointed was left to the discretionof the State. Therefore, even for persons who were alreadyselected, discretion is given to the State. Hence it can never besaid that the Bench had granted relief to candidates who werealready appointed. 19.The question arose before the division bench was whetherthe selection by considering the District wise seniority wasviolative of constitution or not. After holding that it isunconstitutional, the Bench held that in future, selectionsshould be made only by inviting applications from all over theState. Further the Supreme Court had refused to grant any interimstay of the judgment of the Division Bench. The attempt tocontend that the candidates were in the advanced stages ofselection or due to the administrative inaction of theauthorities by delaying the grant of appointment order that apetitioner had failed to get appointment cannot be urged beforethis court. It is necessary to state that there cannot beestoppel against a statute, more so against the constitution. 20. It is therefore necessary to refer to the judgment ofthe Supreme Court in Post Graduate Institute of Medical Education& Research, Chandigarh and others v. K.L.Narasimhan and anotherreported in (1997) 6 SCCC 283. The following passage found inparagraph 16 may be usefully extracted below:"16. ... This question was considered in G.S.Gillcase. Therein, the High Court has given direction todereserve the post and to throw open the same to thegeneral candidates. While considering the ratio in https://hcservices.ecourts.gov.in/hcservices/ CAG case and other decisions, this Court had pointedout that the Court cannot give mandamus to disobeythe Constitution and principle of reservationenshrined in Articles 15(4) and 16; nor is the Courtcompetent to direct the authorities to disobey theconstitutional mandate. It would, therefore, bemanifestly illegal to seek a mandamus or direction;"(Emphasis added)21. In the present case, this Court is of the view that theallegation of discrimination between two sets of persons amongthe same class does not stand to reason. In the case ofcandidates not getting appointment orders, the judgment squarelystares on the face of those candidates. In cases whereappointment orders were already granted, it is only left to thediscretion of the State Government to deal with theirtermination. Therefore, there can be no comparison between theappointed candidates and the candidates after selection was notissued with appointment orders. 22.It is also necessary to refer to the judgment of theSupreme Court in Divisional Forest Officer and others v.M.Ramalinga Reddy reported in (2007) 9 SCC 286, wherein it washeld that if an appointment was not made pursuant to anyselection if no offer of appointment was issued, the Court cannotgrant 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, theSupreme Court held that selected candidates do not have a legalright and the Court in the absence of any legal right cannot acton the basis of sympathy alone. In paragraphs 24 to 26, it wasobserved as follows:-"24.In Pitta Naveen Kumar v. Raja Narasaiah Zangitithis Court observed:(SCC p.273, para 32)"32. The legal position obtaining in this behalf isnot in dispute. A candidate does not have any legalright to be appointed. He in terms of Article 16 ofthe Constitution of India has only a right to beconsidered therefor. Consideration of the case of anindividual candidate although ordinarily is requiredto be made in terms of the extant rules but strictadherence thereto would be necessary in a case wherethe rules operate only to the disadvantage of thecandidates concerned and not otherwise."In a situation of this nature, no appointment couldbe made by the State in absence of the select list.The State could not substitute itself for theSelection Committee.25. Furthermore, ordinarily, the writ court shouldnot, in absence of any legal right, act on the basisof sympathy alone.26.In Ramakrishna Kamat v. State of Karnataka albeit https://hcservices.ecourts.gov.in/hcservices/ 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 learnedSingle Judge and looking to the very directionsgiven, a very sympathetic view was taken. We do notfind it either just or proper to show any furthersympathy in the given facts and circumstances of thecase. While being sympathetic to the persons whocome before the Court the Courts cannot at the sametime be unsympathetic to the large number ofeligible persons waiting for a long time in a longqueue seeking employment."(See also Maruti Udyog Ltd. v. Ram Lal, State ofBihar v.Amrendra Kumar Mishra, Regional Manager, SBIv. Mahatma Mishra and State of Karnataka v.Ameerbi)"(Emphasis added)24.The same view was also re-itereated in the subsequentjudgment in Jitendra Kumar and others v. State of Haryana andanother reported in (2008) 2 SCC 161.In paragraph 41 it wasobserved as follows:"47. It is therefore, evident that whereas theselectee as such has no legal right, the superiorcourt in exercise of its judicial review would notordinarily direct issuance of any writ in absenceof any pleading and proof of mala fide orarbitrariness 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 aselection process hit by the vice of constitutional breach, noCourt especially a Court which was bound by an order of theDivision Bench can give a direction contrary to the spirit andthe terms of the Division Bench order which is in force. Evenassuming if a person's name is in the select list, there is noright for him to seek for a direction to appoint him throughCourt orders. This question has been answered by the SupremeCourt in more than one decision. 26.The Supreme Court vide its judgment in Aryavrat GraminBank v. Vijay Shankar Shukla reported in (2007) 12 SCC 413. hasheld that a candidate included in the panel has no right to get apost. Even if there are any improper appointments made, thatcannot 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 mereinclusion of a person's name in a rank list, there is no right toget appointment and it is open to the Government to fill up ornot to fill up such posts. In such cases, no mandamus will lieagainst the State for the grant of appointments. https://hcservices.ecourts.gov.in/hcservices/

28.Therefore, the contentions raised by the petitioners thatthis Court must mould the relief by giving directions to StateGovernment to grant appointment orders will be in direct conflictwith the dictum laid down by the Division Bench in UnemployedSecondary Grade Teachers Welfare Association, Society (citedsupra).29.In the light of the above, this Court is unable to grantany relief to the writ petitioners. However, it is open to thepetitioners to move the Hon'ble Supreme Court to get appropriatedirection, if any, in respect of hard facts pointed out by thembefore this Court. 30. Accordingly, all the writ petitions will standdismissed. However, there will be no order as to costs.Consequently, connected miscellaneous petitions are closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.svki/vvkTo1.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. 6. The DirectorTamilnadu School Education Chennai https://hcservices.ecourts.gov.in/hcservices/

7. The Assistant Director Employment ExchangeSalem District8. The Chief Educational Officer Salem Taluk, Salem District9. The District Elementary Education OfficerKarur District, Karur10. The District CollectorKarur District, Karur11. The Chief Educational OfficerKarur District, Karur12. The District Employment OfficerKarur District, Karur.13. The Cheif Education Officer Uthagamandalam, The Nilgris District.14. The District Elementary Educational Officer, Coonoor, The Nilgris District15. The District Education Officer, Salem, District Salem.16. The District Collector, Erode District Erode.17. The District Elementary Education Officer, District Elementary Education Office, Erode.18. The Chief Elementary Educational Officer, Erode.19. The Chief Education Officer, Erode, Erode District20. The District Education Officer, Erode, Erode District.21. The District Chief Education Officer, District Chief Education Office Kanchipuram. 631 501.22. The District Elementary Education Officer, District Elementary Education Office, Kancheepuram. https://hcservices.ecourts.gov.in/hcservices/

23. The Chief Elementary Education Officer, Karur.24. The Revenue Division Officer Erode District, Erode.25. The Chief Educational Officer, Dharmapuri.26. The District Elementary Educational Officer, Dharmapuri.+ 1 cc to M/s. PVS. Sridher Sai Associates(SR.NO.67066+ 1 cc to Mr.J. Ravindran, Advocate SR.66256+ 1 cc to Mr.S. Mani, Advocate SR.67161+ 1 cc to Government Pleader High Court Madras SR.67155.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 2008KLT (CO)kk,kn,rh,sra,ss,eu 21/12