High Court · 2008

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 28.02.2008CORAM:THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVANWrit Petition Nos.193, 572 to 575, 586 to 588, 780 to 784, 1883, 2105,2200, 2272 and 2677 of 2008 andM.P.Nos.1 of 2008M.Anandhi .. Petitioner in WP.193/08V.Sagunthala.. Petitioner in WP.572/08Y.R.Aswathamma.. Petitioner in WP.573/08M.Manjula.. Petitioner in WP.574/08K.Shoba.. Petitioner in WP.575/08R.Meenakshi.. Petitioner in WP.586/08R.Seetha.. Petitioner in WP.587/08S.Lakshmi Devi.. Petitioner in WP.588/08G.Lakshmi.. Petitioner in WP.780/08V.Bharathi.. Petitioner in WP.781/08R.Manjula.. Petitioner in WP.782/08A.Manju.. Petitioner in WP.783/08Muthamma.. Petitioner in WP.784/08M.Vasundhara Devi.. Petitioner in WP.1883/08R.Jyothi.. Petitioner in WP.2105/08S.Kavitha.. Petitioner in WP.2200/08S.Sujatha.. Petitioner in WP.2272/08G.Dhanalakshmi.. Petitioner in WP.2677/08-Vs-The Collector,Krishnagiri, Krishnagiri District...1st Respondents in all the petitionsThe District Programme Officer,Integrated Child Development Schemes,Krishnagiri,Krishnagiri District... 2nd Respondent in WP.193, 572 to 575, 586 to 588, 2200/08, 780 to 784 & 1883/08, 2272/08The District Planning Officer,Krishnagiri District, Krishnagiri...2nd Respondent in WP.2105/08 https://hcservices.ecourts.gov.in/hcservices/ Children Development Programme Officer,Thottadhimmannahalli Anganvadi Centre,Kelamangalam, Krishnagiri District... 2nd Respondent in WP.2677/08PRAYER.: Petitions filed under Article 226 of the Constitution of Indiafor the issuance of a writ of Certiorarified Mandamus to call for therecords relating to the impugned order of the first respondent inNa.Ka.No.156/A1/2006 dated 12.12.2007 and quash the same and direct therespondents to reinstate the petitioner in service with all attendantbenefits. WP.Nos.193, 572 to 575, 586 to 588, 780 to 784, 1883, 2105,2200, 2272 of 2008.WP.2677/08 :Petition presented to this Court to issue a Writ of CertiorarifiedMandamus to call for the records from the file of the 1st respondentherein in Na.Ka.No.156/A1-2006 dated 12.12.2007 quash the same and for aMandamus directing the respondents to permit the petitioner to continueas an Anganvadi Thottadhimmanahalli, Denganikottai Taluk, KrishnagiriDistrict.For Petitioner : Mr.P.Rajendran in WP.193, 572 to 575, 586 to 588, 780 to 784, 1883/08, 2200, 2272/08For Respondents : Mr.T.Seenivasan, AGP in all Writ petitionsFor Petitioner : R.Karthikeyan in WP.2105/08For Petitioner: H.Balaji in WP.2677/08C O M M O N O R D E RAll these writ petitions are disposed of by consent by a commonorder.2. The petitioners were all aggrieved that by a cyclostyled orderstating that 1) interview for the posts of Anganwadi workers were notconducted 2) selection committee recommendation was not obtained 3)Government norms in eligibility, distance between centres have not beenadopted and 4) no concurrence of the District Collector, their serviceswere terminated. Since all the orders were obviously cyclostyled orders,it indicated non application of mind and therefore, interim stay wasgranted. Immediately after notice was taken by the learned Governmentpleader, the learned Government Pleader produced the files on07.02.2008,which showed that 54 Anganwadi workers had been appointedillegally by the District Welfare Officer and Programme Officer, against https://hcservices.ecourts.gov.in/hcservices/ whom disciplinary proceedings were also proposed to be initiated. Thelearned Government Pleader therefore submitted that stay shall not becontinued, since appointment itself is illegal. However, since theworkers were incharge of children and there would be vacancy until newAnganwadi workers are appointed, the status-quo was permitted tocontinue and all the writ petitions on the same issue were directed tobe listed and today the above writ petitions are listed.3. The files are produced and counter has also been filed. Therewas a direction to fill up the post of Anganwadi workers and AnganwadiHelpers blockwise. Thereafter, it was learnt that the posts of Anganwadiworkers and Anganwadi Helpers were filled up in total violation ofGovernment rules and norms and therefore, the District Collector by hisnote dated 12.09.2007 ordered to cancel the posting orders. Theappointment orders would show that each of the petitioner was appointedafter being selected by selection committee and after obtaining theapproval of the Collector. This is seen from ref. No.4 of theappointment letter which reads as follows:-"m';fd;tho gzpahsh; njh;t[g;gl;oay; kw;Wk;fpUc&;zfphp khthl;l Ml;rpj;jiyth; mth;fspd; mYtyf Fwpg;g[ xg;g[jy; ehs; 27.7.2007".and the statement in the body of the order, reads as follows: "ghh;it 2 kw;Wk; 3y; fhWk; murhizfspd;go fpUc&;zfphpkhtl;lj;jpy; xU';fpize;j FHe;ijfs; tsh;r;rpg; gzpfs;jpl;lj;jpd; fPH; bray;gLk; FHe;ijfs; ika (m';fd;tho) fhypm';fd;tho gzpahsh; gzpapl';fSf;F jFjpahdth;fis njh;t[f;FG K:yk; njh;e;bjLf;fg;gl;gth;fspy; fPH;Fwpg;gpl;Ls;s egiumthpd; bgaUf;bfjpnu Fwpj;Js;s FHe;ijfs; ikaj;jpw;Fm';fd;tho gzpahsuhf Kw;wpYk; jw;fhypf mog;gilapy; gzpepakdk; bra;J Miz tH';fg;gLfpwJ"4. Therefore, it was vehemently urged on behalf of the petitionersthat if there was any irregularity or infirmity in the appointmentorders, the petitioners were not aware of the same and that when theCollector had given his approval for the appointment, it is now not opento the first respondent to cancel the appointment on the basis ofcertain allegations, for which even notice was not issued to thepetitioners. It was submitted on behalf of the petitioners that thepetitioners should have had an opportunity before their services wereterminated. https://hcservices.ecourts.gov.in/hcservices/

5. I have perused the file to see whether any opportunity shouldhave been given and if such an opportunity was given, would thepetitioners position have been improved. On 02.11.2007, the firstrespondent in D.O.Roc.55/Camp Office/2007 had stated as follows:-"The Government in G.O.Ms.No.4, Social Welfareand Nutritious Meal Programme, Dated 5.1.2007 hasordered to fill up 72 Anganwadi Workers and 157Anganwadi Helpers posts in Krishnagiri District. Asper the above orders, necessary applications werecalled for, interviews were conducted and postingswere issued to eligible 70 Anganwadi workers and 157Anganwadi helpers in this office proceedings dated27.7.2007.After this, I have received lot of complaintsagainst Tmt.Grace Anna Backiyam, District SocialWelfare Officer and Project Officer (ICDS) (i/c)Krishnagiri that she on her own without obtaining theapproval of the District Collector on file was fillingthe remaining vacant posts thus violating theguidelines fixed by the Government for selection ofposts like Anganwadi workers and Anganwadi helpers.Hence, a Committee consisting of officials was formedto enquire into the allegations. The Committee hassubmitted its report and has stated that 29 Anganwadiworkers and 20 Anganwadi helpers posts have beenfilled up by the PO (ICDS) (i/c) with the followingviolations:1) Interview for the above posts were not beenconducted.2) Selection Committee's recommendation has notbeen obtained.3) Government norms in eligibility, distancebetween centres have not been adopted.4) These orders have been issued without theconcurrence of the District Collector".6. Subsequently, on 09.11.2007, the second respondent inNa.Ka.No.156/2006/m1 has stated as follows:-" ,g;bghUs; bjhlh;ghf. fPH; fz;l tptu';fis khtl;lMl;rpj;jiyth; mth;fspd; fdpthd ghh;itf;Frkh;g;gpf;fg;gLtJod;. Nkw;go epakd';fs; nkw;bfhz;ljw;Fgpd;ndw;ghiz tH';fp xg;g[jy; tH';f nfhhp gzpt[ld;nfl;Lf;bfhs;fpnwd;" https://hcservices.ecourts.gov.in/hcservices/ .....,e;j fhuz';fis fUj;jpy; bfhz;Ljpl;lg;gzpdhs; jilapd;wp brk;ikahf eilbgwntz;Lk; vd;wnehf;fj;jpy; Fwpg;gpl;l fhypg;gzpapl';fspd; ika';fis rhh;e;jVw;fdnt elj;jg;gl;l neh;fhzy; njh;tpy; fye;Jbfhz;l njh;t[ bra;ag;glhj tpz;zg;gjhuh;fisf; bfhz;L m';fd;thogzpahsh; kw;Wk; cjtpahsh; fhypg;gzpapl';fs; gl;oaypy;fz;Ls;sthW jsp tl;lhuj;jpy; 16 m';fd;tho gzpahsh;gzpapl';fSk; bfyk';fyk; tl;lhuj;jpy; 3 m';fd;tho gzpahsh;kw;Wk; 3 cjtpahsh; ;gzpapl';fSk; tl;lhu FHe;ijfs; tsh;r;rpjpl;;l mYtyh;fspd; ghpe;Jiufspd; mog;gilapYk;tpz;zg;gjhuhfspd; fy;;tp jFjp taJ tUkhd tuk;g[ rK:f epiyMfpa jFjpfspd; mog;gilapYk csSh; gpuKfh;fspd;ghpe;Jiufspd;go epuggglld".;7. So, it is seen from this that the Collector's permission was notobtained and only exposed facto approval was sought for. The recordwhich shows that the Collector's approval was obtained which is signedby the second respondent is proved false by her own letter dated09.11.2006. It is also seen that the vacancy had been filled up on thebasis of applicants who had failed in the interview, that had beenconducted earlier. Of course, the second respondent had stated that thereason for this action is because she wanted the work of Anganwadiworkers to proceed without any hitch. But however this shows that shehad not obtained the approval of the Collector and there was nointerview. Infact, she had chosen persons who have had not beenselected in the interview that had been conducted earlier. 8. Under such circumstances, the request of the petitioners thatthey should be given opportunity is of no avail. The person who hassigned in the appointment order has herself stated in the interdepartmental communication that these appointments were made ofcandidates who had failed in the interview and the appointment waswithout approval. 9. In the case of Aligarh Muslim University and Others vs. MansoorAli Khan reported in 2000 (7) SCC 529, the Supreme Court considered theprinciple where breach of natural justice is in itself a prejudice willnot apply."21. As pointed recently in M.C.Mehtav vs. Unionof India, (1999) 6 SCC 237: 1999 AIR SCW 2754: (AIR1999 SC 2583), there can be certain situations inwhich an order passed in violation of natural justice https://hcservices.ecourts.gov.in/hcservices/ need not be set aside under Article 226 of theConstitution of India. For example where noprejudice is caused to the person concerned,interference under Article 226 is not necessary.Similarly, if the quashing of the order which is inbreach of natural justice is likely to result inrevival of another order which is in itself illegalas in Gadde Venkateswara Rao vs. Government of AndhraPradesh, (1965) 2 SCR 172 : (AIR 1966 SC 828), it isnot necessary to quash the order merely because ofviolation of principles of natural justice"22.....23. Chinnappa Reddy,J in S.I.Kapoor's case (AIR1981 SC 136), laid two exceptions (at p.395 of SCC):(at pp.147 and 148 of AIR) namely, "if upon admittedto indisputable facts only one conclusion waspossible", then in such case, the principle thatbreach of natural justice was in itself prejudice,would not apply. In other words, if no otherconclusion was possible on admitted or indisputablefacts, it is not necessary to quash the order whichwas passed in violation of natural justice. Ofcourse, this being an exception, great care must betaken in applying this exception".24....25....26. It will be sufficient, for the purpose ofthe case of Mr.Mansoor Ali Khan to show that his casewill fall within the exceptions stated by ChinnappaReddy, J, in S.L.Kapoor vs. Jagmohan, AIR 1981 SC136,namely, that on the admitted or indisputablefacts – only one view is possible. In that event noprejudice can be said to have been caused toMr.Mansoor Ali Khan though notice has not beenissued".In the present cases, on the admitted facts, there can be only onconclusion. So, giving opportunity would also be a 'useless formality'. In this case, the appointments are not just irregular, they areillegal appointments. If the termination order is quashed, then itwould revive the illegal order of appointment. Article 226 shall not beinvoked. In the facts of the case, even if opportunity is given, theorder of appointment can only be quashed because it is illegal. So,again, Article 226 shall not be invoked. https://hcservices.ecourts.gov.in/hcservices/

10. The Supreme Court in the case of Secretary, State of Karnatakaand Others vs. Umadevi (3) and others reported in 2006 (4) SCC 1 , inparagraphs 13 and 56, has held as follows:-"13. In A.Umarani vs. Registrar, Co.op.Societies a three Judge Bench made a survey of theauthorities and held that when appointments were madein contravention of mandatory provisions of the Actand statutory rules framed thereunder and by ignoringessential qualifications, the appointments would beillegal and cannot be regularised by the State. TheState could not invoke its power under Article 162 ofthe Constitution to regularise such appointments"56. ....These appointments or engagements werealso made in the teeth of directions of theGovernment not to make such appointments and it isimpermissible to recognise such appointments made inthe teeth of directions issued by the Government inthat regard. We have also held that they are notlegally entitled to any such relief. Granting ofthe relief claimed would mean paying a premium fordefiance and insubordination by those concerned whoengaged these persons against the interdict in thatbehalf. Thus, on the whole, the appellants in theseappeals are found to be not entitled to any relief" 11. In the case of State of U.P. and others vs. Desh Raj reportedin 2007 1 SCC 257 in paragraphs 10 and 11, the Supreme Court has held asfollows:-"10.The observations made in the said paragraphmust be read in the light of the observations made inparas 15 and 16 of the judgment. The ConstitutionBench referred to the decisions of this Court in Stateof Mysore vs. S.V.Narayanappa, R.N.Nanjundappa vs.T.Thimmiah and B.N.Nagarajan vs. State of Karnataka.B.N.Nagarajan is a decision rendered by a three JudgeBench of this Court in which it has clearly been heldthat the regularisation does not mean permanence. Adistinction has clearly been made in those decisionsbetween "irregularity" and "illegality". Anappointment which was made throwing all constitutionalobligations and statutory rules to the winds wouldrender the same illegal whereas irregularitypresupposes substantial compliance with the rules. https://hcservices.ecourts.gov.in/hcservices/

11. Distinction between irregularity andillegality is explicit. It has been so pointed out inNational Fertilizers Ltd. vs. Somvir Singh in thefollowing terms: (SCC pp. 500-01, paras 23-25)"23. The contention of the learned counselappearing on behalf of the respondents that theappointments were irregular and not illegal, cannot beaccepted for more than one reason. They wereappointed only on the basis of their applications. TheRecruitment Rules were not followed. Even theSelection Committee had not been properly constituted.In view of the ban on employment, no recruitment waspermissible in law. The reservation policy adopted bythe appellant had not been maintained. Even cases ofminorities had not been given due consideration.24. The Constitution Bench thought of directingregularistion of the services only of those employeeswhose appointments were irregular as explained inState of Mysore vs. S.V.Narayanappa, R.N.Nanjundappavs. T.Thimmiah and B.N.Nagarajan vs. State ofKarnataka wherein this Court observed: (Umadevi (3)case, SCC p.24, para 16)"16. In B.N.Nagarajan vs. State of Karnataka thisCourt clearly held that the words "regular" or"regularisation" do not connote permanence and cannotbe construed so as to convey an idea of the nature oftenure of appointments. They are terms calculated tocondone any procedural irregularities and are meant tocure only such defects as are attributable tomethodology followed in making the appointments".12. In the light of the decision and on the facts of the cases, theprayer of the petitioners to quash the termination orders cannot begranted. However, the counsel for the petitioners make one request,which appears to be reasonable and which is also in the interest of thechildren whom the petitioners are incharge. Until the respondents callfor applications and select persons in accordance with the rules, forappointment to the posts of Anganwadi workers and helpers, thepetitioners can continue. When such applications are called for, it isopen to the petitioners to apply for the same. The petitioners will nothave any weightage merely on account of having served pursuant to theillegal appointment. However, the petitioners shall also not to be https://hcservices.ecourts.gov.in/hcservices/ discriminated against merely because they had filed these writpetitions. They should be treated on par with the other applicants.Further, for the work done, the respondents, may consider payment ofsalary. In other respects, the writ petitions are dismissed. No costs.Consequently, connected miscellaneous petitions are also dismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarrgTo1. The District Collector,Krishnagiri,Krishnagiri District.2. The District Programme Officer,Integrated Child Development SchemeKrishnagiri, Krishnagiri District.3. The District Planning Officer,Krishnagiri, Krishnagiri District.4. The Children Development Programme Officer,Tholladhimmannahalli Anganvadi Centre,Kelamangalam, Krishnagiri District.1 cc To Mr.P.Rajendran, Advocate, SR.11393.1 cc To Mr.R.Karthikeyan, Advocate, SR.11144.1 cc To Mr.H.Balaji, Advocate, SR.11234.2 cc To The Government Pleader, SR.11322.Writ Petition Nos.193, 572 to 575, 586 to 588, 780 to 784, 1883, 2105, 2200, 2272 and 2677 of 2008 BV(CO)RVL 19.03.2008