R.Rajaseeli v. The Secretary, Municipal Administration and Water Supply Department, Fort.St.George, Chennai 9. & Ors.

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 08.03.2011CORAM:THE HONOURABLE MS.JUSTICE K.SUGUNAANDTHE HONOURABLE MR.JUSTICE A.ARUMUGHASWAMYW.A.(MD).No.1 of 2011and M.P.No.1 of 2011R.Rajaseeli : AppellantVs.1.The Secretary, Municipal Administration and Water Supply Department, Fort.St.George, Chennai 9.2.The Commissioner, Corporation of Madurai, Madurai.3.S.Babu4.P.Mani5.V.S.Manian6.D.Thiagarajan7.S.Arulsahaya Xavier8.T.Santhanam : RespondentsPRAYER: Writ Appeal is filed under Clause 15 of the Letters Patentagainst the Order dated 26.11.2010 made in W.P.(MD).No.2318 of 2009 onthe file of this Court. Prayer :Writ petition filed under Article 226 of the constitution ofIndia for issuance of a writ of certiorarified mandamus calling for therecords relating to the impugned order passed by the Second Respondent inhis proceedings Ref.No.MA Ne1/5948/2007 dated 13.03.2009 and quash thesame as illegal and consequently direct the Second Respondent to appointthe petitioner as Assistant Engineer in the Second respondent Corporation.For Appellant: Mr.B.SaravananFor Respondent 1: Mr.M.RajarajanGovernment AdvocateFor Respondent 2: Mr.M.RavishankarStanding CounselFor Respondents3to8: Mr.Veera.Kathiravan https://hcservices.ecourts.gov.in/hcservices/ 2JUDGMENT [Judgment of the Court was delivered BY K.SUGUNA, J]This Writ Appeal is directed against the order dated 26.11.2010 madein W.P.(MD).No.2318 of 2009, wherein the Writ Petition filed by theappellant herein challenging the order dated 13.03.2009 passed by thesecond respondent herein and for a direction to the second respondent toappoint the appellant as an Assistant Engineer in the second respondentCorporation was dismissed. 2. The facts leading to the filing of the present Writ Appeal are asfollows:-(i). In response to the call letter dated 19.02.2008 issued to theappellant, she attended the interview conducted for selection andappointment to the post of Assistant Engineer. However, the results werenot published. Meanwhile, by order dated 28.01.2009, promotion orderswere issued to the private respondents herein. Without knowing the same,the appellant made a representation under the Right to Information Act,2005, seeking the results of the interview conducted for selection andappointment to the post of Assistant Engineer.(ii). By order dated 13.09.2009, the appellant herein was informedthat by promotion, the vacancies in the post of Assistant Engineer havebeen filled up. Challenging the said order dated 13.09.2009, theappellant filed W.P.(MD).No.2318 of 2009.(iii). A learned Single Judge of this Court, by order dated26.11.2010, dismissed the said Writ Petition. Challenging the same, theappellant has filed the present Writ Appeal.3. According to the learned counsel for the appellant, as far as thepost of Assistant Engineer is concerned, the method of filling up thevacancies is governed by the Statutory Rules, viz., Tamil Nadu MunicipalCorporation Service Rules, 1996, [hereinafter referred to as "the Rules"]and the post of Assistant Engineer comes under category 1 of group II ofclass II. As far as the method of recruitment is concerned, the same isdealt with under Rule 5 of the Rules. As per the Rules, the vacancies inthe post of Assistant Engineer have to be filled up only by way of directrecruitment. According to the learned counsel for the appellant, in theRules, there is no provision to fill up the post of Assistant Engineer byway of promotion. However, after calling for the candidates and afterconducting interview, for the reasons best known to the second respondentCorporation, by order dated 28.01.2009, promotion orders were issued tothe private respondents. 4. According to the learned counsel for the appellant, when there isno provision under the Statutory Rules to fill up the vacancies in postof Assistant Engineer by promotion, the promotion orders issued to theprivate respondents are contrary to the Rules. Apart from this, accordingto the learned counsel for the appellant, having called for thecandidates for selection and appointment to the post of AssistantEngineer by direct recruitment, there is no necessity to fill up thevacancies by way of promotion. However, the learned Single Judgedismissed the Writ Petition on the ground that what was under challengein the Writ Petition was only a communication sent to the appellant andnot the promotion orders issued to the private respondents. Basing on theabove, the learned counsel for the appellant has prayed for allowing ofthe Writ Appeal. https://hcservices.ecourts.gov.in/hcservices/

35. According to the learned counsel appearing for the privaterespondents, as far as the promotion of the private respondents isconcerned, it is only by way of temporary promotion and Rule 7 of thesaid Rules authorizes temporary promotion. Yet another stand taken by thelearned counsel for the private respondents is that by way of aGovernment Order issued in G.O.Ms.No.416, Municipal Administration andWater Supply Department, dated 15.09.1999, permission has been granted tofill up the vacancies by qualified candidates, who are working in thelower categories, consequently, as per the said Government Order, thepromotion given to the private respondents is in accordance with the saidGovernment Order. 6. Yet another stand taken by the learned counsel for the privaterespondents is that the said Government Order was not under challenge inthe Writ Petition. Besides, after giving such promotion, the same hasbeen sent for ratification and till such ratification is obtained, itshould be construed as temporary promotion. When Rule 7 authorizestemporary promotion, question of illegality in the said promotion doesnot arise. Apart from this, the main argument advanced by the learnedcounsel for the private respondents is that as far as the appellant isconcerned, as on date, he is not an employee of the second respondentCorporation, and therefore, he has no locus standi to challenge thepromotion orders given to the private respondents. Mere attending theinterview will not confer any right to the appellant to challenge thepromotion orders given to the private respondents. In support of hiscontention, the learned counsel for the private respondents has relied onthe following Judgments:-(i). Ludhiana Central Coop. Bank Ltd v. Amrik Singh reported in 2003 (10)SCC 136, Paragraph No.8;-"8. We have carefully considered the submissions on behalfof the parties on either side, in the light of the materialsplaced on record. The conclusion that the functioning of thethen Managing Director of the appellant Bank is neitherappreciable nor can the so-called selections be given anycredence of real/proper selections or can be said to have beenmade in accordance with law, becomes irresistible. The wholeprocess appears to have been not only perfunctory but really afarce of selection vitiated by award of indiscriminate marks toboost up the candidates of choice and unreasonably put downothers in utter disregard and derogation of the bindingguidelines. Indisputably, the power to appoint is vested in theBoard of Directors of the appellant Bank under the bye-laws andthe constitution of a committee for the selection of candidatesby conducting tests and interviews cannot clothe the saidCommittee with powers also to finalise the same without theapproval of the Board and/or either declare the results ofselection on its own or appoint persons pursuant to suchselections without reference to the Board. There is a seriousclaim by the appellant Bank, that the assessment of candidatesappears to be in gross violation of the binding circular ordersof the Registrar of Cooperative Societies dated 31-12-1991. TheHigh Court while passing the order on 22-10-1997 allowing the https://hcservices.ecourts.gov.in/hcservices/ 4writ petition, could not have ignored the directions of theRegistrar on 9-1-1997 and 21-1-1997, the ban orders of theGovernment issued on 10-2-1997 and the final directions issuedon 3-4-1997 by the Registrar as to what should be done in allpending as well as fresh matters to ensure transparency as wellas to mete out real and effective justice to all the aspirantsfor the jobs in question, by finding a solution of its ownwithout even looking into the records relating to the selectionto satisfy itself as to the legality, propriety, regularity andreasonableness of the so-called selections and the processadopted by the Committee before directing action to be taken inimplementation thereof. Even otherwise, it is well settled bynow that a person whose name is said to find place in a selectpanel has no vested right to get appointed to the post in spiteof vacancies existing. The appointing authority cannot affordto ignore individual claims at its whim or fancy, in operatingsuch a panel or making appointments on the basis of the panel,by merely “pick and choose” of candidates. The High Court couldnot have directed the publication of results or to accordappointments as per such results, all the more in this case, inthe teeth of and in derogation of the circular orders of theRegistrar of Cooperative Societies dated 3-4-1997 whichdecision seems to have been taken as a matter of policy and foruniform application to all cases pending finalisation as wellas for any new proposals for recruitment of staff relating toall cooperative banks in the State. The High Court ought tohave, at any rate, gone into all these relevant and vitalaspects at least when serious irregularities have been broughtto notice by filing a review petition, by calling forproduction of the relevant records. The cavalier fashion inwhich it seems to have been rejected cannot meet with ourapproval, at any rate on the peculiar facts and circumstanceshighlighted in this case."(ii). State of Orissa v. Bhikari Charan Khuntia reported in 2003 10 SCC144, Paragraph Nos.8 and 9;-"8. As was observed by this Court in Govt. of Orissa v.Haraprasad Das whether to fill up or not to fill up a post, isa policy decision and unless it is arbitrary, the High Court orthe Tribunal has no jurisdiction to interfere with suchdecision of the Government and direct it to make furtherappointments. In the present case, no selection was made andnot even any select list was in existence. Even if there hadbeen any such selection or inclusion of any of the names in theselect list, the same could not have given any right.Therefore, mere sending of names by the employment exchangecould not have, and in fact, has not conferred any right. Thewrit applications were thoroughly misconceived, and the Courtmisdirected itself as to the nature of relief to be granted.9. It cannot be lost sight of that because of certaincircumstances and policy decision which were also brought tothe notice of the High Court, appointments could not be made.The reasons which persuaded the Government to absorb those who https://hcservices.ecourts.gov.in/hcservices/ 5were rendered surplus on account of abolition of octroi and thedecision taken to abolish a substantial number of posts tominimize expenditure cannot be said to be either extraneous orirrelevant for the purpose, to be ignored by the Court inaccording relief to the writ petitioners. But the High Courtnotwithstanding chose to give directions as quoted above. Theappointments made in respect of some who got empanelled onregular selections made by the Recruitment Board pursuant tothe selection process undertaken does not give any sustenanceto the writ petitioners to claim parity of treatment when theirclaims cannot be equated to those of such empanelledcandidates."(iii). State of UP v. Bibhakar Dwivedi reported in 2003 12 SCC 62,Paragraph No.11;-"11.The general principle of law as has been establishedand followed repeatedly by this Court is that even thosecandidates whose names are included in the merit list do nothave a vested right to be appointed. (See Shankarsan Dash v.Union of India.) The decision relied upon by the High Court andwhich has been cited before us, namely, Jai Narain Ram v. Stateof U.P. had been rendered in connection with the case ofScheduled Caste candidates. It was held in that case thatScheduled Caste candidates who were in the waiting list couldbe directed to be appointed against the reserved category whenvacancies were created in such reserved category by reason ofthe successful candidates not joining the post. The reasoningis based upon Article 14 read with Articles 16(1) and (4) ofthe Constitution. The Court held in paragraph 7 of the Reportthat given these constitutional rights."(iv). State of Orissa v. Rajkishore Nanda reported in 2010 (5) MLJ 944Paragraph Nos.13 and 14;-"13. A person whose name appears in the select list doesnot acquire any indefeasible right of appointment. Empanelmentat the best is a condition of eligibility for the purpose ofappointment and by itself does not amount to selection orcreate a vested right to be appointed. The vacancies have to befilled up as per the statutory rules and in conformity with theconstitutional mandate.14. A Constitution Bench of this Court in Shankarsan Dashv. Union of India AIR 1991 SC 1612 : 1991 (3) SCC 47 : 1992 IILLJ 18, held that appearance of the name of a candidate in theselect list does not give him a right of appointment. Mereinclusion of the candidate’s name in the select list does notconfer any right to be selected, even if some of the vacanciesremain unfilled. The candidate concerned cannot claim that hehas been given a hostile discrimination. (See also Asha Kaul v.State of J&K 1993 (2) SCC 573, Union of India v. S.S. Uppal AIR1996 SC 2340, Bihar Public Service Commission v. State of BiharAIR 1997 SC 2280, Simanchal Panda v. State of Orissa and othersAIR 2002 SC 2444 : @002 (2) SCC 669, Punjab SEB v. Malkiat https://hcservices.ecourts.gov.in/hcservices/ 6Singh AIR 2004 SC 5061, Union of India v. Kali Dass Batish andanother AIR 2006 SC 789 : 2006 (1) SCC 779 : 2006 (1) MLJ 194,Divisional Forest Officer v. M. Ramalinga Reddy AIR 2007 SC2226, Subha B. Nair v. State of Kerala and others 2008 7 SCC210, Mukul Saikia v. State of Assam (supra) and S.S. Balu v.State of Kerala 2009 (2) SCC 479 : 2009 (6) MLJ 966.)"(v). and State of M.P.v. Sanjay Kumar Pathak reported in 2008 (1) SCC 456Paragraph No.18. "18. The Tribunal as also the High Court did not call forthe documents pertaining to the selection process. No findingof fact has been arrived at that the respondents herein werebound to be selected and consequently appointed. Whether all ofthem had fared better than the other candidates who had notapproached the Tribunal had not been found. As the selectionprocess itself was not complete, there was nothing before theTribunal as also the High Court to indicate that they hadacquired legal right of any kind whatsoever. Even where, it istrite, the names of the persons appeared in the select list,the same by itself would not give rise to a legal right unlessthe action on the part of the State is found to be unfair,unreasonable or mala fide. The State, thus, subject to actingbona fide as also complying with the principles laid down inArticles 14 and 16 of the Constitution of India, is entitled totake a decision not to employ any selected (sic candidate) evenfrom amongst the select list. Furthermore, we have noticedhereinbefore, that selections were made in four phases. It isnot the contention of the respondents that the State Governmentacted mala fide. The dispute, as noticed hereinbefore relatedto appointment in Phase 3 and Phase 4 only."7. Relying on the above Judgments, the learned counsel for theprivate respondents has submitted that when the appellant does not haveany locus standi to challenge the promotion orders given to the privaterespondents, question of giving appointment order to her does not arise,consequently, according to the learned counsel for the privaterespondents, there is no infirmity in the order giving promotion to theprivate respondents. That apart, according to the learned counsel for theprivate respondents, by appointing the private respondents as AssistantEngineers basing on G.O.Ms.No.416, Municipal Administration and WaterSupply Department, dated 15.09.1999, nothing had been done contrary tothe Statutory Rules, since the said Government Order, though it is in theform of executive instructions, the gaps can be filled up by way ofexecutive instructions. The Executive instructions issued, which enablethe second respondent Corporation to promote the incumbents of the lowercategories as Assistant Engineers, is only supplementing the StatutoryRules and not supplanting the Statutory Rules. Basing on the above, thelearned counsel for the private respondents has prayed for dismissal ofthe Writ Appeal. 8. According to the learned Standing Counsel for the secondrespondent Corporation, G.O.Ms.No.416, Municipal Administration and WaterSupply Department, dated 15.09.1999, gives power to the second respondentCorporation to give promotion to the incumbents of the lower categoriesas Assistant Engineers. Basing on the above Government Order, the https://hcservices.ecourts.gov.in/hcservices/ 7promotion orders have been issued to the private respondents. Apart fromthis, the promotion of the private respondents has been sent forratification and if no ratification is obtained, the private respondentswill be reverted back. Apart from this, yet another stand taken by thelearned Standing Counsel for the second respondent Corporation is thatthough promotion orders have been given to the private respondents, thesame have not been confirmed till date, consequently, it has to betreated only as temporary promotion and not permanent promotion.According to the learned Standing Counsel for the second respondentCorporation, as far as the appellant is concerned, she has no locusstandi to challenge the promotion orders issued to the privaterespondents. Yet another stand taken by the learned Standing Counsel isthat since certain candidates have filed Writ Petitions and sought forinterim injunction restraining the official respondents from filling upthe vacancies in the post of Assistant Engineer by way of directrecruitment, they have filled up the vacancies to the post of AssistantEngineer by way of promotion. Basing on the above, the learned StandingCounsel for the second respondent Corporation has prayed for dismissal ofthe Writ Appeal.9. The learned Government Advocate appearing for the officialrespondent has submitted that when the matter is pending before theGovernment for ratification, the act of the second respondent in givingpromotion to the private respondents is valid. Basing on this, thelearned Government Advocate has sought for dismissal of the Writ Appeal.10. We have considered the above submissions made by the respectivelearned counsels.11. Admittedly, as per Rule 5 of the Rules, vacancies in the post ofAssistant Engineers have to be filled up only by way of directrecruitment. The stand of the learned Standing Counsel for the secondrespondent Corporation as well as the learned counsel for the privaterespondents is that it is only temporary promotion given to the privaterespondents. Even assuming that it is only temporary promotion, the samecannot be granted contrary to the Rules. When a promotion order given toany employee of any establishment is not in accordance with law, it hasto be termed as an illegal promotion/appointment. Rule 7 of the saidRules deals with temporary promotion. As per Rule 7 of the Rules, theAppointing Authority shall promote any person temporarily for a periodnot exceeding three months in order to fill up a vacancy. However, in thecase on hand, the private respondents have been issued with promotionorders as early as January 2009 itself and they have been allowed tooccupy the post of Assistant Engineers for more than one year. 12. The argument of the learned counsel for the private respondentsthat the appellant does not have any locus standi to challenge thepromotion orders given to the private respondents cannot be allowed tostand, for the reason that even if the appellant is not an employee ofthe second respondent Corporation, as rightly pointed out by the learnedcounsel for the appellant, it is not in dispute that the name of theappellant was sponsored by the Employment Exchange and she was alsosubjected to selection process and without announcing the results, thepromotion orders have been issued to the private respondents, andthereby, the appellant is deprived of her chances of getting appointment https://hcservices.ecourts.gov.in/hcservices/ 8to the post of Assistant Engineer. When the Rule specifically says thatthe vacancies have to be filled up only by way of direct recruitment,filling up the same by way of promotion is contrary to the Rules, andthereby, the appellant is deprived of her chances of getting appointment.Under such circumstances, the Judgments relied on by the learned counselfor the private respondents will not have any application to the facts ofthe present case.13. As per the Judgment of the Hon'ble Supreme Court, which is reliedon by the learned counsel for the private respondents in Ludhiana CentralCoop. Bank Ltd v. Amrik Singh reported in 2003 (10) SCC 136, ParagraphNos.8 and 9, the vacancies have to be filled up only as per the Rules.The same has been again reiterated in the Judgment of the Hon'ble SupremeCourt in State of Orissa v. Rajkishore Nanda reported in 2010 (5) MLJ944, Paragraph Nos.13 and 14. But, here is case, where the vacancies inthe post of Assistant Engineer have been filed up by way of promotion,consequently, the argument advanced by the learned counsel for theprivate respondents in this regard will not hold good. 14. As far as the other argument advanced by the learned counsel forthe private respondents that the appellant has not challenged thepromotion orders issued to the private respondents is concerned, what wascommunicated to the appellant is only the communication dated 13.03.2009,for the information sought for by the appellant under the Right toInformation Act, 2005, whereby the appellant was informed that thevacancies in the post of Assistant Engineer have been filled up by way ofpromotion. Apart from this, when the Rule specifically says that thevacancies in the post of Assistant Engineer have to be filled up only byway of direct recruitment, the act of the second respondent Corporationin filling up the vacancies by way of promotion is contrary to theStatutory Rules. 15. As per the settled position of law, without bringing amendment tothe Statutory Rules, no promotion can be made basing on the executiveinstructions. The other argument advanced by the learned Standing Counselfor the second respondent Corporation that it is only supplementing theStatutory Rules and not supplanting the Statutory Rules cannot be allowedto stand, for the simple reason that giving promotion based on theexecutive instructions, contrary to the Statutory Rules, is, certainly,supplanting the Statutory Rules and not supplementing the StatutoryRules. 16. For the all the reasons stated above, the order dated 26.11.2010made in W.P.(MD).No.2318 of 2011 is set aside and the Writ Appeal isallowed. The second respondent Corporation is directed to fill up thepost of Assistant Engineer as per the Rules available. No costs.Consequently, connected Miscellaneous Petition is closed. Sd/-Assistant Registrar (CO)/True copy/Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 9To1.The Secretary, Municipal Administration and Water Supply Department, Fort.St.George, Chennai 9.2.The Commissioner, Corporation of Madurai, Madurai.+1CC TO THE SPECIAL GOVERNMENT PLEADER, SR.5654+1CC TO MR.M.RAVISHANKAR, ADVOCATE SR.5698+1CC TO MR.VEERA KATHIRAVAN, ADVOCATE SR.11708NBRPB : 19.04.2011 : 9p/6cJUDGMENT MADE INW.A.(MD).No.1 of 201108.03.2011