P. Ganaselvaudayakumari v. The RegistrarTamil Nadu Administrative TribunalChennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 22.4.2008Coram:The Honourable Mr.Justice P.K. MISRAandThe Honourable Mr.Justice K.CHANDRUW. P. No. 8482 of 2003P. Ganaselvaudayakumari... Petitioner-vs- 1.The RegistrarTamil Nadu Administrative TribunalChennai2.The DirectorSocial Welfare DepartmentChepauk,Chennai3.The DirectorDirectorate for Rehabilitation of the DisabledMylapore,Chennai4.V. Gopal ... RespondentsPetition under Article 226 of the Constitution of India praying toissue a writ of Certiorarified Mandamus calling for the records of thefirst respondent relating to the order dated 22.01.2003 made in O.A. No.5603 of 1993 confirming the order passed by the second respondentappointing the fourth respondent as P.G. Assistant passed in hisproceedings Roc. No. 84921/H4 II-1/91 dated 24.12.1991 and quash thesame and direct the respondents 2 and 3 to promote the petitioner asP.G. Assistant (Political Science) with effect from 24.12.1991 with allconsequential service benefits and promotions granted to the fourthrespondent.For Petitioner : Mr. M. Veerendran for Mr. Ramesh KumarFor Respondents 2&3 : Mr. M. Dhandapani, Spl. GPFor Respondent 4: Mr. K. ThennanORDERK. CHANDRU, J.Heard the arguments of Mr. M. Veerendran, learned counsel https://hcservices.ecourts.gov.in/hcservices/ representing Mr. Ramesh Kumar, learned counsel appearing for thepetitioner, Mr. M. Dhandapani, learned Special Government Pleaderrepresenting the respondents 2 and 3 and Mr. K.Thennan, learned counselfor the fourth respondent and have perused the records.2.The petitioner was working as a Secondary Grade Teacher in theGovernment School for Blind, Sivaganga. Aggrieved by the proceedingsdated 24.12.1991 issued by the second respondent appointing the fourthrespondent as P.G. Assistant (Political Science), she filed originalApplication in O.A. No. 5603 of 1993 before the Tamil NaduAdministrative Tribunal [for short, 'Tribunal'].3.The grievance of the petitioner was that she joined the Schoolrun by the Social Welfare Department as a Secondary Grade Teacher in theyear 1984. She had also undergone the Diploma in Teaching for theBlind in the Government Teacher Training School at Poonamallee. Duringthe year 1991, a vacancy for the post of P.G. Assistant (PoliticalScience) arose and applications were called for by the secondrespondent. The post of P.G. Assistant (Political Science) was not apromotional post from the post of Secondary Grade Teacher. As per theapplication invited by the second respondent, it was stated that thecandidate must possess PG degree in Political Science with Graduation inEducation and also Diploma in Teaching for the Blind. The petitionerhad all the qualifications required for the post and she was the onlyqualified candidate available for the post.4.The application sent by the petitioner was forwarded by theHeadmaster and it was dated 12.12.1991. It was stated that the lastdate for receipt of the application was 15.12.1991. But thepetitioner's application was forwarded with a covering letter by theHeadmaster through the District Social Welfare Officer. It was to themisfortune of the petitioner, the District Social Welfare Officer didnot immediately forward the said application and sent the samebelatedly. The District Social Welfare officer, Sivaganga, forwarded theapplication with a covering letter dated 24.12.1991 and hence, it wasclaimed that the application was received by the Directorate long afterthe last date fixed for receipt of the application. The secondrespondent, therefore, selected the fourth respondent, who was notqualified to hold the said post. 5.The fourth respondent was working as an Assistant in theoffice of the second respondent Directorate. He did not have theDiploma in Teaching for the Blind. He also did not belong to teachingservice but belonged to the Tamil Nadu Ministerial Service and he nevertaught in any school even for a single day. The second respondent,unmindful of the qualification prescribed, appointed the fourthrespondent as a P.G. Assistant (Political Science) by invoking Rule 39(a)(1) of the Tamil Nadu State and Subordinate Service Rules and postedhim to work in the Government Higher Secondary School for Blind at https://hcservices.ecourts.gov.in/hcservices/ Poonamallee. He was given three more years to qualify himself bygetting Diploma in Teaching for the Blind. The petitioner protestedagainst the same and sent a representation dated 24.6.1992 to the secondrespondent. Thereafter, she filed the Original Application.6.The Tribunal, by its order dated 22.01.2003, rejected theclaim of the petitioner. The Tribunal held that the petitioner'sapplication was received belatedly and even though the fourth respondentwas not qualified at the time of his appointment, since no othercandidate was available, he was appointed. But at the time of hearingof the case, he got himself qualified. Therefore, the Tribunal merelyobserved that the petitioner may be considered for the next vacancy.Though the writ petition was admitted on 19.3.2003, but no interim orderwas granted.7.Mr. Veerendran, learned counsel appearing for the petitionercontended that the order appointing the fourth respondent was totallyillegal in as much as he was not qualified to hold the said post and helacked the basic qualification to get appointed. Under the Adhoc Rulesframed for the said post, by G.O. 511 Education dated 16.3.1959 it isstated as follows:"No person shall be eligible for the appointment tothe said posts of the School Assistants unless hepossesses the Government Certificate of the competency inteaching the blind, or the Senior Diploma in Teaching theBlind in addition to the qualification prescribed for theposts in the category 2 of Class II of the said service.Provided that if a suitable and qualified persons notavailable a person not possessing the certificate orSenior Diploma may be appointed but such person mustobtain the Senior Diploma in the teaching the Blind withina period of Four Years from the date of his appointment tothe said post."8.It is seen from the records that even before the details werecalled for by the second respondent for appointment to the post of P.G.Assistant, the petitioner had sent a representation dated 02.4.1990staking claim for the said post. She also further sent a replypursuant to the information sought for by the Directorate videcommunication dated 21.5.1990. Even in the circular dated 05.12.1991,it was only the Department Officers who were asked to send the detailsregarding qualified candidates working in the Department. To put itotherwise, the Department had the complete information about thepetitioner's qualification and the obligation to send the particularslay only with the subordinate officers. 9.Therefore, it may be possible that the fourth respondent, https://hcservices.ecourts.gov.in/hcservices/ working as an Assistant in the very same Directorate, after coming toknow of the petitioner's eligibility, might have successfully blockedthe petitioner's application reaching the Directorate. The allegationof mala fide was also alleged against the second respondent Departmentin paragraph 6 of the Original Application.It was not denied by theofficial respondents. The Special Rules clearly states that ifsuitable and qualified persons are not available, then only, a personwho is not having the Diploma in Teaching for the Blind, can beappointed. 10.In the present case, there was an undue haste by the secondrespondent to appoint the fourth respondent, who was not qualified. TheDepartment was well aware of the qualifications possessed by thepetitioner, which information was furnished to the Department vide herrepresentation dated 02.4.1990. The needle of suspicion points towardsthe fourth respondent's complicity in this matter, who was working inthe very same Directorate and who belonged to the Ministerial serviceand who had no teaching experience whatsoever before his appointment,was having an eye over the very same post.11.In this context, the learned counsel brought to the notice ofthis Court the judgment of the Supreme Court in U.P. Public ServiceCommission, v. Alpana [(1994) 2 SCC 723]. In paragraph 6 of thejudgment, it was held as follows:Para 16:".... The facts of this case reveal that the respondentwas not qualified to apply since the last date fixed forreceipt of applications was August 20, 1988. No rule orpractice is shown to have existed which permittedentertainment of her application. The Public ServiceCommission was, therefore, right in refusing to call herfor interview. The High Court in Writ Petition No. 1898 of1991 mandated the Public Service Commission to interviewher but directed to withhold the result until furtherorders. In obedience to the directive of the High Courtthe Public Service Commission interviewed her but herresult was kept in abeyance. Thereafter, the High Courtwhile disposing of the matter finally directed the PublicService Commission to declare her result and, ifsuccessful, to forward her name for appointment. The HighCourt even went to the length of ordering the creation ofa supernumerary post to accommodate her. This approach ofthe High Court cannot be supported on any rule orprevalent practice nor can it be supported on equitableconsiderations...." 12.Thereafter, he relied upon the decision of the Supreme Courtreported in (1995) Supp (4) SCC 706 [Harpal Kaur Chahal (Smt) v.Director, Punjab Instructions, Punjab and another] and referred to https://hcservices.ecourts.gov.in/hcservices/ paragraph 2 which reads as follows:Para 2:"It is contended for the appellant that since theappellant had been appointed by the duly constitutedDepartmental Selection Committee and as on the date ofinterview since the appellant had the qualification, herselection and appointment cannot be said to be illegal. Wefind no force in the contention. It is to be seen thatwhen the recruitment is sought to be made, the last datehas been fixed for receipt of the applications. Such ofthose candidates who possessed of all the qualificationsas on that date alone are eligible to apply for and to beconsidered for recruitment according to rules. Since theappellant had not possessed the Physical TrainingInstructor qualifications as on that date, her illegalconsideration by the Board and recommendation forappointment and the appointment made in furtherancethereof are illegal...." 13.The learned counsel placed reliance on the judgment of theSupreme Court reported in 1997 (4) SCC 18 [Ashok Kumar Sharma and othersv. Chander Shekhar and another] and relied on the following passagefound in paragraph 6:Para 6:".... The proposition that where applications are calledfor prescribing a particular date as the last date forfiling the applications, the eligibility of the candidatesshall have to be judged with reference to that date andthat date alone, is a well-established one. A person whoacquires the prescribed qualification subsequent to suchprescribed date cannot be considered at all. Anadvertisement or notification issued/published calling forapplications constitutes a representation to the publicand the authority issuing it is bound by suchrepresentation. It cannot act contrary to it. One reasonbehind this proposition is that if it were known thatpersons who obtained the qualifications after theprescribed date but before the date of interview would beallowed to appear for the interview, other similarlyplaced persons could also have applied. Just because someof the persons had applied notwithstanding that they hadnot acquired the prescribed qualifications by theprescribed date, they could not have been treated on apreferential basis. Their applications ought to have beenrejected at the inception itself." 14.Further reliance was placed upon the decision in RajasthanPublic Service Commission v. Kaila Kumar Paliwal and another [2007(10) SCC 260] and paragraphs 20 and 21 read as follows:Para 20:"A person in order to be considered for promotion to a https://hcservices.ecourts.gov.in/hcservices/ higher post must possess the essential qualification. Ifhe does not do so, he cannot be considered therefor. Eventhe Selection Committee in absence of any express powerconferred upon it cannot relax such essentialqualification. [See J.C. Yadav v. State of Haryana andBhanu Prasad Panda (Dr.) v. Chancellor, SambalpurUniversity.]Para 21:Recruitment to a post must be made strictly in terms ofthe Rules operating in the field. Essential qualificationmust be possessed by a person as on the date of issuanceof the notification or as specified in the Rules and onlyin absence thereof, the qualification acquired till thelast date of filing of the application would be therelevant date. (See Ashok Kumar Sharma v. ChanderShekhar, U.P. Public Service Commission v. Alpana andHarpal Kaur Chahal v. Director, Punjab Instructions."15.In the present case, the second respondent ought to haverejected the claim made by the fourth respondent as he belonged toMinisterial service and hardly had any teaching experience in hiscareer. When he submitted his application for the post of P.G.Assistant, the same should have been rejected outrightly. Byexercising the power under Rule 39 and relaxing the essentialqualification, the second respondent had misused his official power onlywith a view to promote his own staff of the Directorate.16.In the present case, neither before the Tribunal nor beforethis Court, any repliy had been filed either by the official respondentsor by the private respondent and the allegations made by the petitionerboth in the O.A. as well as in the affidavit filed in support of thewrit petition, remain uncontroverted. 17.In the light of the above facts as well as the bindingprecedents of the Supreme Court referred to above, we have no hesitationin setting aside the order dated 22.01.2003 passed by the Tribunal inO.A. No. 5603 of 1993 as well as the order of the second respondentdated 24.12.1991 appointing the fourth respondent as P.G. Assistant(Political Science). 18.It is now brought to the notice of this Court that by virtueof his illegal appointment, the fourth respondent also had become theHeadmaster of the Higher Secondary School. Since such a promotion wasgiven only pursuant to the illegal appointment, the fourth respondenthas to be necessarily removed and the petitioner has to be appointed asP.G. Assistant (Political Science) with all the consequential benefits. https://hcservices.ecourts.gov.in/hcservices/

19.In the light of the above, the writ petition is allowed withthe above directions. However, there will be no order as to costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrargriTo1.The DirectorSocial Welfare DepartmentChepauk, Chennai2.The DirectorDirectorate for Rehabilitation of the DisabledMylapore,Chennai+1cc to Govt Pleader 23110+1cc Mr.S.RameshKumar 22892 W. P. No. 8482 of 2003 Delivered on 22.4.2008MRD(CO) 24/04rvr 30/04