K.Nehru v. The Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 28..11..2007Coram: The Hon'ble Mr. Justice K.CHANDRUW.P. Nos.27647 and 27847 of 2007andM.P. Nos. 1 and 2 of 2007 in W.P. No. 27647 of 2007andM.P. No. 1 of 2007 in W.P. No. 27847 of 2007K.Nehru.. Petitioner in both W.Ps.vs.

The Government of Tamil Nadu Rep. by Secretary to Government Labour and Employment DepartmentFort St. GeorgeChennai – 9 2. The Management of Tamil Nadu Pollution Control BoardRep. by its Member SecretaryNo. 76 Anna SalaiGuindy, Chennai .. Respondents in both W.Ps.Petitions filed under Article 226 of the Constitution of Indiaseeking for issuance of writ of Mandamus directing the secondrespondent to appoint the petitioner to the post of AssistantEngineer in the second respondent Board on the basis of the writtentest written by him on 11.3.2007 and for a declaration declaringthe selection of Assistant Engineers made by the second respondenton the basis of the interview held on 27.7.2007 by calling forcandidates from the Employment Exchange in the ratio of 1:1superceding the written test held on 11.3.2007 as violative of Articles 14 and 16 of the Constitution of India. For Petitioner: Mr. S. AyyathuraiFor Respondent 1: Mrs. Bhavani Subbarayan, AGPFor Respondent 2: Mr. RamanlalC O M M O N

O R D E RThe petitioner in both the writ petitions is the same personand in view of the inter-connectivity of both the writ petitions, https://hcservices.ecourts.gov.in/hcservices/ they are taken up together.

I have heard the arguments of Mr. S. Ayyathurai, learnedcounsel appearing for the petitioner, Mrs. Bhavani Subbarayan, learned Assistant Government Pleader representing the firstrespondent and Mr. Ramanlal, learned counsel appearing for thesecond respondent and have perused the records.

W.P. No. 27647 of 2007 has been filed seeking for adirection to the second respondent to appoint the petitioner in thepost of Assistant Engineer on the basis of the written test held on11.3.2007. W.P. No. 27847 of 2007 is filed seeking for adeclaration declaring the selection of Assistant Engineer in thesecond respondent Tamil Nadu Pollution Control Board [for short,'Board'] on the basis of the interview held on 27.7.2007 by callingfor candidates from the Employment Exchange in the ratio of 1:1 bysuperseding the written test held on 11.3.2007, as violative of Articles 14 and 16 of the Constitution of India.

The petitioner was an applicant for the post of AssistantEngineer called for by the second respondent and the applicantswere directed to take a written test at the College of AnnaUniversity on 11.3.2007. The petitioner's Registration No. wasB53 and he, accordingly, wrote the test on 11.3.2007.

The second respondent has filed a common counteraffidavit dated 24.9.2007 wherein it is stated that when the Boarddecided to recruit 25 Assistant Engineers, a requisition was madeto the Assistant Director / Professional Employment Exchange tosend a list of eligible candidates as per the roster. TheEmployment Exchange had sent a list of 501 candidates andintimation was sent to all of them and 256 candidates attended theexamination on 11.3.2007. The selection was to be based on thewritten test as well as oral interview to be held later. Beforethe second respondent Board call the candidates for interview, thefirst respondent had issued G.O. Ms. No. 86 Labour and EmploymentDepartment dated 12.5.2007 by which a revised procedure forrecruitment has been made by the Government. In terms of thesaid order, the employers were directed to invite candidates onlyon the ratio of 1:1 rather than the pre-existing ratio of 1:20. Thesecond respondent Board adopted the Government Order since thecategory of Assistant Engineer did not fall under either physicalor technical skill parameters. Therefore, a fresh requisition wascalled for from the Employment Exchange. Accordingly, the Assistant Director of Employment Exchange had sent a fresh list ofcandidates by keeping in mind the seniority and registration aswell as communal roster. It was based upon the new list, selectionwas conducted. Since the petitioner's name had not come forconsideration, the question of considering his name did not ariseand he had registered his name in the Employment Exchange under thecategory 'Scheduled Caste Community' (non-priority) only on https://hcservices.ecourts.gov.in/hcservices/

18.7.1989 as he had acquired B.E. Degree in Civil Engineering onlyduring April 1989. It was also stated by them that there was noulterior motive for the Board to call for fresh list. TheGovernment had reiterated by their letter dated 26.4.2007 that theguidelines issued in the earlier order dated 30.3.2007 should bestrictly followed in cases where the appointment order had not beenissued. In the present case, the petitioner had only written thewritten test and was waiting for the interview. Therefore, theselection process was not complete.

Mr. S. Ayyathurai, learned counsel for the petitionersubmitted that it cannot be said that the order in G.O. Ms. No. 65Labour and Employment Department dated 30.3.2007 is binding on thesecond respondent, which is an autonomous Board, and evenotherwise, the clarification issued by G.O. Ms. No.86 Labour and Employment Department dated 12.5.2007 does not prohibit the Boardfrom going ahead with the earlier selection method. In thiscontext, he referred to paragraph 2 of the impugned G.O. Ms. No. 86dated 12.5.2007 and the essence of the clarification is as follows: “If already vacancies were notified with the Employment Exchange and list has been receivedbefore 30.3.2007, then in order to avoid delay infilling up the vacancy, the Establishment cancontinue with the earlier list and not to followG.O. Ms. No. 65 Labour and Employment Departmentdated 30.3.2007. In all other respects, G.O. Ms.No. 65 prescribing the ratio of 1:1 shall bescrupulously followed by the Employment Exchange. But, whenever any post requires physical skill ortechnical skill parameters, in respect of thoseposts, the ratio of 1:1 cannot be followed. Then theestablishments can go by the requisition made as itis prevalent before G.O. Ms. No. 65 dated30.3.2007.“ It is only because the learned counsel found this clarification wasagainst him, he has chosen to file the second writ petition, viz.,W.P. No. 24847 of 2007 challenging the vires of the said order asbeing allegedly violative of Articles 14 and 16 of the Constitutionof India.

In the present case, the respondents have taken acategorical stand that the original selection process had not gonethrough since interview was not conducted and when the revisedGovernment Order was considered by the Board as to have beenmandatorily followed by them, there was nothing wrong in the Boardadopting the said Government Order and make a requisition for a newlist in terms of the revised Government Order. No right of thepetitioner is affected and the Board has rightly considered thatthe post of Assistant Engineer is only an entry level post and it https://hcservices.ecourts.gov.in/hcservices/ does not require any physical skill or technical parameter. Itis also significant to note that the petitioner himself has got hisname registered in the Employment Exchange only during April 1989.He wants to compete with the people who are in queue even earlierto him. Since the petitioner has not been given any offer ofemployment, his attitude to seek for the direction to post him asan Assistant Engineer in terms of the written test held on11.3.2007 as claimed in W.P. No. 27647 of 2007 is misconceived andaccordingly, it is dismissed.

With reference to the challenge to G.O. Ms. No. 86 dated12.5.2007, the said order is of a general nature applicable to allGovernment Departments including statutory Boards and there was noillegality or unconstitutionality about the said direction. Infact, it is a demand of the various service organisations that theratio of 1:20 gives scope for manipulation by the recruitingauthorities. Therefore, the zone of consideration should be keptlow so that the scope for manipulation may not arise. In fact, the ratio was prescribed by G.O. Ms. No. 65 Labour and EmploymentDepartment dated 30.3.2007 and that is not under change in thiswrit petition.

The petitioner is not seeking to challenge even theclarification dated 12.5.2007. But, on the contrary, he seeks fora general declaration to declare the selection of AssistantEngineer on the basis of the interview held on 27.7.2007 asunconstitutional. The Board is bound to go by the Governmentguidelines in the matter of recruitment and prescription of ratioas 1:1 cannot be held to be either illegal or unconstitutional. The further order dated 12.5.2007 in G.O. Ms. No. 86 is only aclarification so that the employer can take a definite stand on theapplication. In the present case, the second respondent Boardhas taken a definite stand to go by 1:1 ratio in the matter ofrecruitment for the post of Assistant Engineer and the same cannotbe found faulted by this Court. The petitioner's only assertionthat he has taken a written test cannot be a ground to hold thatthe Government Order is invalid and the selection process adoptedby the second respondent is violative of Articles 14 and 16 of the Constitution of India. Therefore, W.P. No. 24847 of 2007 alsofails.

In view of the above, W.P. No. 27647 of 2007 ismisconceived and accordingly, it is dismissed. No costs. Thedirection made by this Court vide order dated 18.8.2007 to keep onepost of Assistant Engineer vacant, shall stand vacated. ConnectedMiscellaneous Petitions are closed. https://hcservices.ecourts.gov.in/hcservices/

W.P. No. 24847 of 2007 also fails and the same shallstand dismissed. However, there will be no order as to costs. Connected Miscellaneous Petition is closed. Sd/Asst. Registrar/true copy/Sub Asst. RegistrargriTo1.The Secretary to Government Government of Tamil Nadu Labour and Employment DepartmentFort St. GeorgeChennai – 9 2. The Member SecretaryTamil Nadu Pollution Control BoardNo. 76 Anna SalaiGuindy, Chennai +2ccs to Mr.S.Ayyathurai, Advocate Sr 70238 and 70237KS (CO)km/3.

W.P. Nos.27647 and 27847 of 2007