High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDated 06..11..2007Coram:The Hon'ble Mr. Justice K.CHANDRUW.P.Nos.12254, 13115, 13152, 13158 to 13160, 13350, 13353, 13790 to 13795, 14933 and 15693 of 2007andM.P. Nos.1 of 2007 in respective W.Ps.G.Shanmugaiah..Petitioner in W.P. No. 12254 of 2007R.Murugan..Petitioner in W.P. No. 13115 of 2007J.Punitha..Petitioner in W.P. No. 13152 of 2007T.Ramasubramanian..Petitioner in W.P. No. 13158 of 2007D.Gunaseelan..Petitioner in W.P. No. 13159 of 2007R.Sasikumar..Petitioner in W.P. No. 13160 of 2007K.Samraj..Petitioner in W.P. No. 13350 of 2007L.Maria Sorna Revathy..Petitioner in W.P. No. 13353 of 2007Mary Jaya..Petitioner in W.P. No. 13790 of 2007I.Ruban..Petitioner in W.P. No. 13791 of 2007C.Mary Latha..Petitioner in W.P. No. 13792 of 2007A. Anitha..Petitioner in W.P. No. 13793 of 2007R.Lakshmi Devi..Petitioner in W.P. No. 13794 of 2007R.Rajmohan ..Petitioner in W.P. No. 13795 of 2007S.Rajendran..Petitioner in W.P. No. 15693 of 2007Vs.1.The District CollectorKancheepuram District2.District Revenue OfficerKancheepuram District3.Tahsildar (Relief and Rehabilitation)Kancheepuram District4.TahsildarTambaramKancheepuram District5.District Elementary Educational OfficerKancheepuram District.. Respondents in all W.Ps. https://hcservices.ecourts.gov.in/hcservices/ Petitions are filed for issuance of writ of Certiorarified Mandamuscalling for the concerned records from the second respondent andquash the order of the second respondent bearing Na.Ka. 31179 /2006-46, 36, 23,16,7,48, 43, 40, 17, 39, 33, 43, 14 and 19rspectively X.1 dated 09.02.2007 and consequently direct the fifthrespondent to consider the petitioner for appointment to the postof Secondary Grade Teacher pursuant to the notice dated 14.9.2006bearing Na.Ka. No. 3720/A5/06 and verification of records on26.10.2006.W.P. No. 14933 of 2007D.Judson Patturaj..Petitioner Vs.1.The District Elementary Educational OfficerKancheepuram District2.District Revenue Divisional OfficerKancheepuram, Kancheepuram District.. Respondents Petition filed for issuance of writ of a Mandamus directingthe first respondent to consider the petitioner for appointment tothe post of Secondary Grade Teacher pursuant to the notice dated14.9.2006 bearing Na.Ka. No. 3720/A5/06 and verification of recordson 26.10.2006.For Petitioner inall the WPS : Mr. Balan HaridasFor Respondents : Mrs.Bhavani Subbarayan, AGPin all the WPSORDERI have heard Mr.Balan Haridas, learned counsel appearing forthe petitioners and Mrs. Bhavani Subbarayan, learned AssistantGovernment Pleader representing the respondents and have perused therecords. 2.Excepting W.P. No. 14933 of 2007, all other writ petitionsare identical inasmuch as the challenge is to the order passed bythe second respondent District Revenue Officer, KancheepuramDistrict.3.In W.P. No. 14933 of 2007, the prayer is for a directionto the first respondent District Elementary Educational officer toconsider the petitioner's appointment for the post of SecondaryGrade Teacher pursuant to the notification issued by them. https://hcservices.ecourts.gov.in/hcservices/

4.In W.P. No. 15693 of 2007, this Court granted an interimorder reserving one post to be kept vacant pending further orders inthe writ petition. In all these cases, the impugned order hasbeen passed by the second respondent District Revenue Officercancelling the Community Certificate, Migration Certificate andResidential Certificate issued in respect of the respectivepetitioners. The reason found in the order is that thecertificates were obtained by the petitioners only with a view tojustify their names in the District Employment Exchange and wronginformation have been given for obtaining the certificates. It wasalso stated that there was no record to show that the petitionershad resided in these places before they got themselves registered inthe Employment Exchange.5.In all these cases, the petitioners were all trainedteachers having eligibility for being appointed as Secondary GradeTeachers. Insofar as the recruitment of the Secondary GradeTeachers in respect of the Government and Municipal Schools in theState is concerned, the Revenue District is treated as an Unit andthe names are sponsored from the Employment Exchange and on thebasis of seniority, persons are being appointed. In view of theDistrict being kept as an Unit, there has been large scale migrationof candidates from one District to other Districts. Since severalcomplaints have been made about the migration from one District tothe other Districts, the Government have issued G.O. Ms. No. 66,Labour and Employment (N2) Department dated 15.7.2002. Paragraphs2 to 4 of the said G.O. are extracted below:“2.In order to prevent re-registration with bogusresidential certificates, the Director of Employmentand Training in his letter first read above has senta proposal for the discontinuance of the existingprocedure of obtaining residential certificate fromthe Tahsildar concerned in the new District and forobtaining a family migration certificate for re-registration from one District to another District.The Director has also requested the Government toissue orders that the new registrants should beallowed to register their names in the EmploymentExchanges only on production of Ration Card and forregistration for change of address within theDistrict, the registrants should produce the familymigration certificate.3.The Principal Commissioner and Commissioner forRevenue Administration, in his letter second readabove has accepted the proposal of the Director ofEmployment and Training for issue of family migrationcertificate instead of residential certificate by theTahsildars for re-registration of name from oneDistrict to another District subject to the conditionthat their names must be registered based on theRation Card. https://hcservices.ecourts.gov.in/hcservices/

4.The Government, after careful consideration,pass the following orders:-(i)New registrants should produce an attested copyof their Ration Card as proof of address.(ii)Registrants who seek re-registration from oneDistrict to another, should produce:-(a)family migration certificate issued by theTahsildar concerned in the new District inthe form enclosed with this G.O., and (b)an attested copy of the new Ration Cardshowing the new address.(iii)Registrants who seek change of address withinthe same District should produce an attestedcopy of their Ration Card showing the newaddress.”6.Therefore, as the Government itself envisages themigration of persons from one place to other places, there is noillegality about the said migration of the candidates including thepetitioners herein. Once the Government has issued orders forallowing either fresh registration of candidates from otherDistricts in the Employment Exchange or re-registration of suchcandidates in another District, then the role of the Revenueauthorities is only to see that bogus certificates are not created.In the guise of weeding out the bogus claims made by persons, therespondents cannot deny the case of genuine candidates beingmigrated from one District to other Districts. Ultimately,employment cannot be granted solely based upon the residentialrequirement and if such a criteria is made, that would offendArticle 16(2) of the Constitution of India. 7.In the present case, the certificates produced by thepetitioners are not disputed and in fact, in respect of theCommunity Certificate, Migration Certificate as well as ResidentialCertificate, all these have been issued only by Revenue authorities.Therefore, necessary care and caution must be taken by them at thetime of issuance of the certificates. Once these certificatesare found to be genuine and not fictitious, then there will be verylittle function by the second respondent in verifying thecertificates. It is not as if when the inspection was made by thesecond respondent, the petitioners were not residing in the addressgiven by them. On the contrary, the second respondent has taken acurious stand that these persons are coming from different Districtsand the present attempt for registering in the Employment Exchangewas only with a view to get an employment. Such a superficialstatement is not expected from the officers of the secondrespondent. In fact, the Government itself has recognised theattempt of the candidates to migrate from one place to other places.Insofar as the motive of the petitioners is concerned in migratingfrom one District to other Districts, even if they have an idea to https://hcservices.ecourts.gov.in/hcservices/ get employment as motive, such motive is so long as not illegal orunconstitutional, no exception can be taken about their intention.On the contrary, the Revenue authorities are only directed to findout the genuineness of the certificates produced by them and also tosee whether the petitioners are residing in the addresses given bythem or such addresses are given only for the purpose of getting aResidential Certificate. Even, there is no stipulation as to howlong the petitioners should stay a particular place. 8.In fact, this Court in a case relating to A.S. Santhalathav. District Collector, Thiruvarur and others reported in 2005W.L.R. 433 made a distinction between the Nativity Certificate andResidential Certificate. Paragraphs 6 to 8 of the said order maybe usefully extracted:Para 6:“On the other hand, the Circular No.22 of 1997relates to the issuance Residence Certificate. Thesaid circular does not stipulate any condition as tothe period of residence in a particular place for aperson to obtain such certificate. Moreover, thesaid circular refers to the right of a person movingfrom one district to another district for justifiablereasons to obtain such a certificate, moreparticularly, for the purpose of effecting change ofregistration in the employment exchange. In factthis guideline came up for consideration before thisCourt in W.P. No. 183 of 2001 and the translatedportion of the circular reads as under:-“Those persons who seek change of theirEmployment Registration from one District to anothermust make their application along with the copy ofcertificate of residence issued by an officer notbelow the rank of Tahsildar of the District to whichthe change of registration shall not be done in theevent of non-production of the certificate ofresidence issued by the said authority. The abovesaid certificate from the applicant, one to beretained in the office file of the EmploymentExchange effecting transfer and the other to beforwarded to the Employment Exchange to whichtransfer is sought for. The copy of the saidcertificate of residence received by the EmploymentExchange where the change of registration is soughtfor should be perused and should be placed in theconcerned file. A detailed note in this regardshould be mentioned in F.O.U. Column.”After observing the purport of the circular,this Court had directed the District Collector toconsider the case of the petitioner for issuance ofResidence Certificate. https://hcservices.ecourts.gov.in/hcservices/ Para 7:From the above,it is seen that a Certificate ofResidence is with reference to the place where aperson resides for justifiable reason and does notstipulate any condition for a minimum period of stayin a particular place. On the other hand, theNativity Certificate refers to the person's birth orhis residing in a particular place. In thiscontext, the Concise Oxford Dictionary Tenth EditionDefines “residence” as 1. the fact of residingsomewhere. 2. the place where a person resides; aperson's home. 3. the official house of agovernment minister or other official figure. Thesaid dictionary defines “nativity” as 1. theoccasion of a person's birth. 2. the birth ofJesus Christ.Para 8:From the above discussions, the following two furtherissues arise for consideration. By the impugnedorder, the first respondent relied upon theGovernment letter which relates to the NativityCertificate. This, in our view, cannot beaccepted, as the petitioner has applied only for aResidence Certificate and not for a NativityCertificate. Secondly, when this Court had alreadydirected the District Collector to consider therequest of the petitioner for issuance of ResidenceCertificate with reference to the Circular No. 22 of1997, placing reliance on the Government letter dated16.6.1984 by completely ignoring the Circular No. 22of 1997 cannot also be sustained.”9.Even a Constitution Bench of the Supreme Court in itsrecent judgment in Kuldip Nayar v. Union of India reported in AIR2006 SC 3127 dealt with a question as to what is the term 'anordinarily resident' connotes in terms of law in paragraph 243 andthe same is reproduced below:Para 243:“Thus, residence is a concept that may also betransitory. Even when qualified by the word“ordinarily” the word “resident” would not result ina construction having the effect of a requirement ofthe person using a particular place for dwellingalways or on permanent uninterrupted basis. Thusunderstood, even the requirement of a person being“ordinarily resident” at a particular place isincapable of ensuring nexus between him and the placein question. 10.A Division Bench of this Court in its decision reported in1989 W.L.R. 420 [National Life Insurance Employees' Association andanother v. The Life Insurance Corporation of India, Madras] heldthat if preference is shown in terms of any residence, such a https://hcservices.ecourts.gov.in/hcservices/ preference is violative of Article 16(2) of the Constitution ofIndia and the relevant passage found in paragraph 8 of the saidorder is extracted below:Para 8:“The plea of the respondent that the nature of postsis such that those in and around the concernedbranches could be employed, will have no relevance,because even in respect of those posts, they aretransferable. Learned counsel for the respondent hadrelied on Air India v. Nergesh Meerza, M/s B.Y.Kshatriya Pvt.Ltd. v. S.A.T.R. Kangan Union and B.Y.Kshatriya Pvt. Ltd. v. Union of India, to show thatthere could be reasonable classification adopted toachieve certain objectives as found in theenactments, but in the instant case, when Regulationshad been framed under the Life Insurance CorporationAct relating to recruitments and appointments go bemade by it, the offending procedure, above referredto, should not have been adopted by it. It is,therefore, violative of Article 16(2).”11.Therefore, the statement of the District Revenue Officerthat the intention of the petitioners was only for the purpose ofgetting their names registered in the Employment Exchange and,therefore, the certificates obtained by them are sought to becancelled, is clearly illegal and contrary to the purpose behindwhich it was ordered.12.At the time of granting Community Certificate as well asMigration Certificate and Residential Certificate, necessary enquiryshould have been made by the Revenue authorities. In the presentcase, the petitioners were also in possession of Photo IdentityCard for having got their names registered in the Voters' List.When such an enquiry is made and appropriate Certificates areissued, it is not clear as to on what material, the secondrespondent District Revenue Officer has cancelled the certificatesof the petitioners by a one sentence order. In fact, his entireattempt proceeds on a wrong premises that it was illegal to migratefrom one place to other place and, therefore, if any suchregistration is made for the purpose of getting employment, thatitself is illegal. The attempt made by the District RevenueOfficer to start proceeding on a wrong notion is clearly notenvisaged in the Government Order extracted above. He has alsonot kept in mind the parameters under which any such decision ismade. 13.In fact, in paragraph 3 of the petitions, the petitionershave asserted that they have migrated permanently to Kancheepuram.In these cases, all the petitioners have gone for interview for thepost of Secondary Grade Teachers and if they are eligible and comingwithin the zone of consideration for seniority, there can be no https://hcservices.ecourts.gov.in/hcservices/ impediment for employment in any vacancy arising out of the Schoolssituated in Kancheepuram District. 14.In the light of the materials produced by the petitioners,the impugned order is clearly arbitrary and is not borne out byrecords. Under these circumstances, all the writ petitions shallstand allowed and the impugned orders stand quashed. Therespondents are directed to register the names of the petitioners inthe Employment Exchange with due seniority and also restore thecertificates, viz., Community Certificate, Migration Certificate andResidential Certificate, which were cancelled by the impugnedorders.15.Insofar as W.P. No. 14933 of 2007 is concerned, the prayeris only for a direction to consider the case of the petitioner inthe light of his registration in the Employment Exchange. Thispetition also stands disposed of with the above direction. However,there will be no order as to costs. Connected MiscellaneousPetitions are closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.griTo1.The District CollectorKancheepuram District2.District Revenue OfficerKancheepuram District3.Tahsildar (Relief and Rehabilitation)Kancheepuram District4.TahsildarTambaram, Kancheepuram District5.District Elementary Educational OfficerKancheepuram District15 ccs to Mr. Balan Haridoss, Advocate, Sr. 66781 to 667962 ccs to the Government Pleader, Sr. 66832 and 66855W.P. No.12254 of 2007, etc. batchVRK CO)kk 30/11