A.Senthilkumar v. The Commissioner, Madurai Corporation, Madurai

4. According to the learned counsel for the petitioner, when thereis no provision under the Statutory Rules to fill up the vacancies inpost of Assistant Engineer by promotion, the promotion orders dated28.01.2009 issued are contrary to the Rules. Apart from this, accordingto the learned counsel for the petitioner, 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. Considering as above, the learned counselfor the petitioner has prayed for allowing of the Writ petition. 5. The learned counsel also submitted that very same impugned orderwas set aside by the Division Bench of this Court in W.A.(MD)No.1 of 2011by order dated 08.03.2011. 6. Heard the learned counsel appearing for the respondent. 7. In paragraph 3 to 16 of the Division Bench Judge dated08.03.2011 in W.A.(MD)No.1 of 2011, it is held as follows: “3.

According to the learned counsel for theappellant, as far as the post of Assistant Engineer isconcerned, the method of filling up the vacancies isgoverned by the Statutory Rules, viz., Tamil Nadu MunicipalCorporation Service Rules, 1996, [hereinafter referred to as"the Rules"] and the post of Assistant Engineer comes undercategory 1 of group II of class II. As far as the method ofrecruitment is concerned, the same is dealt with under Rule5 of the Rules. As per the Rules, the vacancies in the postof Assistant Engineer have to be filled up only by way ofdirect recruitment. According to the learned counsel for theappellant, in the Rules, there is no provision to fill upthe post of Assistant Engineer by way of promotion. However, after calling for the candidates and after conductinginterview, for the reasons best known to the second https://hcservices.ecourts.gov.in/hcservices/ 3respondent Corporation, by order dated 28.01.2009, promotionorders were issued to the private respondents.

4. According to the learned counsel for the appellant, when there is no provision under the Statutory Rules to fillup the vacancies in post of Assistant Engineer by promotion, the promotion orders issued to the private respondents arecontrary to the Rules. Apart from this, according to thelearned counsel for the appellant, having called for thecandidates for selection and appointment to the post of Assistant Engineer by direct recruitment, there is nonecessity to fill up the vacancies by way of promotion. However, the learned Single Judge dismissed the WritPetition on the ground that what was under challenge in the Writ Petition was only a communication sent to the appellantand not the promotion orders issued to the privaterespondents. Basing on the above, the learned counsel forthe appellant has prayed for allowing of the Writ Appeal. 5. According to the learned counsel appearing for theprivate respondents, as far as the promotion of the privaterespondents is concerned, it is only by way of temporarypromotion and Rule 7 of the said Rules authorizes temporarypromotion.

Yet another stand taken by the learned counselfor the private respondents is that by way of a GovernmentOrder issued in G.O.Ms.No.416, Municipal Administration and Water Supply Department, dated 15.09.1999, permission hasbeen granted to fill up the vacancies by qualifiedcandidates, who are working in the lower categories, consequently, as per the said Government Order, thepromotion given to the private respondents is in accordancewith the said Government Order. 6. Yet another stand taken by the learned counsel forthe private respondents is that the said Government Orderwas not under challenge in the Writ Petition. Besides, aftergiving such promotion, the same has been sent forratification and till such ratification is obtained, itshould be construed as temporary promotion. When Rule 7authorizes temporary promotion, question of illegality inthe said promotion does not arise. Apart from this, the mainargument advanced by the learned counsel for the privaterespondents is that as far as the appellant is concerned, ason date, he is not an employee of the second respondentCorporation, and therefore, he has no locus standi tochallenge the promotion orders given to the private https://hcservices.ecourts.gov.in/hcservices/ 4respondents.

Mere attending the interview will not conferany right to the appellant to challenge the promotion ordersgiven to the private respondents. In support of hiscontention, the learned counsel for the private respondentshas relied on the following Judgments:-(i). Ludhiana Central Coop. Bank Ltd v. Amrik Singhreported in 2003 (10) SCC 136, Paragraph No.8;-"8. We have carefully considered thesubmissions on behalf of the parties on either side, in the light of the materials placed on record. Theconclusion that the functioning of the then ManagingDirector of the appellant Bank is neitherappreciable nor can the so-called selections begiven any credence of real/proper selections or canbe said to have been made in accordance with law, becomes irresistible. The whole process appears tohave been not only perfunctory but really a farce ofselection vitiated by award of indiscriminate marksto boost up the candidates of choice andunreasonably put down others in utter disregard andderogation of the binding guidelines.

Indisputably, the power to appoint is vested in the Board of Directors of the appellant Bank under the bye-lawsand the constitution of a committee for theselection of candidates by conducting tests andinterviews cannot clothe the said Committee withpowers also to finalise the same without theapproval of the Board and/or either declare theresults of selection on its own or appoint personspursuant to such selections without reference to the Board. There is a serious claim by the appellantBank, that the assessment of candidates appears tobe in gross violation of the binding circular ordersof the Registrar of Cooperative Societies dated 31-12-1991. The High Court while passing the order on22-10-1997 allowing the writ petition, could nothave ignored the directions of the Registrar on 9-1-1997 and 21-1-1997, the ban orders of the Governmentissued on 10-2-1997 and the final directions issuedon 3-4-1997 by the Registrar as to what should bedone in all pending as well as fresh matters toensure transparency as well as to mete out real andeffective justice to all the aspirants for the jobsin question, by finding a solution of its ownwithout even looking into the records relating to https://hcservices.ecourts.gov.in/hcservices/ 5the selection to satisfy itself as to the legality, propriety, regularity and reasonableness of the so-called selections and the process adopted by the Committee before directing action to be taken inimplementation thereof.

Even otherwise, it is wellsettled by now that a person whose name is said tofind place in a select panel has no vested right toget appointed to the post in spite of vacanciesexisting. The appointing authority cannot afford toignore individual claims at its whim or fancy, inoperating such a panel or making appointments on thebasis of the panel, by merely “pick and choose” ofcandidates. The High Court could not have directedthe publication of results or to accord appointmentsas per such results, all the more in this case, inthe teeth of and in derogation of the circularorders of the Registrar of Cooperative Societiesdated 3-4-1997 which decision seems to have beentaken as a matter of policy and for uniformapplication to all cases pending finalisation aswell as for any new proposals for recruitment ofstaff relating to all cooperative banks in the State. The High Court ought to have, at any rate, gone into all these relevant and vital aspects atleast when serious irregularities have been broughtto notice by filing a review petition, by callingfor production of the relevant records.

The cavalierfashion in which it seems to have been rejectedcannot meet with our approval, at any rate on thepeculiar facts and circumstances highlighted in thiscase. "(ii). State of Orissa v. Bhikari CharanKhuntia reported in 2003 10 SCC 144, Paragraph Nos.8and 9;-"8. As was observed by this Court in Govt.of Orissa v. Haraprasad Das whether to fill up ornot to fill up a post, is a policy decision andunless it is arbitrary, the High Court or the Tribunal has no jurisdiction to interfere with suchdecision of the Government and direct it to makefurther appointments. In the present case, noselection was made and not even any select list wasin existence. Even if there had been any suchselection or inclusion of any of the names in theselect list, the same could not have given anyright. Therefore, mere sending of names by the https://hcservices.ecourts.gov.in/hcservices/ 6employment exchange could not have, and in fact, hasnot conferred any right.

The writ applications werethoroughly misconceived, and the Court misdirecteditself as to the nature of relief to be granted.9. It cannot be lost sight of that becauseof certain circumstances and policy decision whichwere also brought to the notice of the High Court, appointments could not be made. The reasons whichpersuaded the Government to absorb those who wererendered surplus on account of abolition of octroiand the decision taken to abolish a substantialnumber of posts to minimize expenditure cannot besaid to be either extraneous or irrelevant for thepurpose, to be ignored by the Court in accordingrelief to the writ petitioners. But the High Courtnotwithstanding chose to give directions as quotedabove. The appointments made in respect of some whogot empanelled on regular selections made by the Recruitment Board pursuant to the selection processundertaken does not give any sustenance to the writpetitioners to claim parity of treatment when theirclaims cannot be equated to those of such empanelledcandidates.

"(iii). State of UP v. Bibhakar Dwivedi reported in2003 12 SCC 62, Paragraph No.11;-"11. The general principle of law as has beenestablished and followed repeatedly by this Court isthat even those candidates whose names are includedin the merit list do not have a vested right to beappointed. (See Shankarsan Dash v. Union of India.)The decision relied upon by the High Court and whichhas been cited before us, namely, Jai Narain Ram v.State of U.P. had been rendered in connection withthe case of Scheduled Caste candidates. It was heldin that case that Scheduled Caste candidates whowere in the waiting list could be directed to beappointed against the reserved category whenvacancies were created in such reserved category byreason of the successful candidates not joining thepost. The reasoning is based upon Article 14 readwith Articles 16(1) and (4) of the Constitution. TheCourt held in paragraph 7 of the Report that giventhese constitutional rights.

"(iv). State of Orissa v. Rajkishore Nanda reportedin 2010 (5) MLJ 944 Paragraph Nos.13 and 14;- https://hcservices.ecourts.gov.in/hcservices/ 7"13. A person whose name appears in theselect list does not acquire any indefeasible rightof appointment. Empanelment at the best is acondition of eligibility for the purpose ofappointment and by itself does not amount toselection or create a vested right to be appointed. The vacancies have to be filled up as per thestatutory rules and in conformity with theconstitutional mandate.14. A Constitution Bench of this Court in Shankarsan Dash v. Union of India AIR 1991 SC 1612 :1991 (3) SCC 47 : 1992 II LLJ 18, held thatappearance of the name of a candidate in the selectlist does not give him a right of appointment. Mereinclusion of the candidate’s name in the select listdoes not confer any right to be selected, even ifsome of the vacancies remain unfilled. The candidateconcerned cannot claim that he has been given ahostile discrimination.

(See also Asha Kaul v. Stateof J&K 1993 (2) SCC 573, Union of India v. S.S.Uppal AIR 1996 SC 2340, Bihar Public ServiceCommission v. State of Bihar AIR 1997 SC 2280,Simanchal Panda v. State of Orissa and others AIR2002 SC 2444 : @002 (2) SCC 669, Punjab SEB v.Malkiat Singh AIR 2004 SC 5061, Union of India v.Kali Dass Batish and another AIR 2006 SC 789 : 2006(1) SCC 779 : 2006 (1) MLJ 194, Divisional ForestOfficer v. M. Ramalinga Reddy AIR 2007 SC 2226,Subha B. Nair v. State of Kerala and others 2008 7SCC 210, Mukul Saikia v. State of Assam (supra) andS.S. Balu v. State of Kerala 2009 (2) SCC 479 : 2009(6) MLJ 966.)"(v). and State of M.P.v. Sanjay Kumar Pathakreported in 2008 (1) SCC 456 Paragraph No.18. "18. The Tribunal as also the High Court didnot call for the documents pertaining to theselection process. No finding of fact has beenarrived at that the respondents herein were bound tobe selected and consequently appointed.

Whether allof them had fared better than the other candidateswho had not approached the Tribunal had not beenfound. As the selection process itself was notcomplete, there was nothing before the Tribunal asalso the High Court to indicate that they hadacquired legal right of any kind whatsoever. Even https://hcservices.ecourts.gov.in/hcservices/ 8where, it is trite, the names of the personsappeared in the select list, the same by itselfwould not give rise to a legal right unless theaction on the part of the State is found to beunfair, unreasonable or mala fide. The State, thus, subject to acting bona fide as also complying withthe principles laid down in Articles 14 and 16 ofthe Constitution of India, is entitled to take adecision not to employ any selected (sic candidate)even from amongst the select list. Furthermore, wehave noticed hereinbefore, that selections were madein four phases. It is not the contention of therespondents that the State Government acted malafide.

The dispute, as noticed hereinbefore relatedto appointment in Phase 3 and Phase 4 only. "7. Relying on the above Judgments, the learned counselfor the private respondents has submitted that when theappellant does not have any locus standi to challenge thepromotion orders given to the private respondents, questionof giving appointment order to her does not arise, consequently, according to the learned counsel for theprivate respondents, there is no infirmity in the ordergiving promotion to the private respondents. That apart, according to the learned counsel for the private respondents, by appointing the private respondents as Assistant Engineersbasing on G.O.Ms.No.416, Municipal Administration and WaterSupply Department, dated 15.09.1999, nothing had been donecontrary to the Statutory Rules, since the said GovernmentOrder, though it is in the form of executive instructions, the gaps can be filled up by way of executive instructions.

The Executive instructions issued, which enable the secondrespondent Corporation to promote the incumbents of the lowercategories as Assistant Engineers, is only supplementing the Statutory Rules and not supplanting the Statutory Rules. Basing on the above, the learned counsel for the privaterespondents has prayed for dismissal of the Writ Appeal. 8. According to the learned Standing Counsel for thesecond respondent Corporation, G.O.Ms.No.416, MunicipalAdministration and Water Supply Department, dated 15.09.1999,gives power to the second respondent Corporation to givepromotion to the incumbents of the lower categories as Assistant Engineers. Basing on the above Government Order, the promotion orders have been issued to the privaterespondents. Apart from this, the promotion of the private https://hcservices.ecourts.gov.in/hcservices/ 9respondents has been sent for ratification and if noratification is obtained, the private respondents will bereverted back.

Apart from this, yet another stand taken bythe learned Standing Counsel for the second respondentCorporation is that though promotion orders have been givento the private respondents, the same have not been confirmedtill date, consequently, it has to be treated only astemporary promotion and not permanent promotion. According tothe learned Standing Counsel for the second respondentCorporation, as far as the appellant is concerned, she has nolocus standi to challenge the promotion orders issued to theprivate respondents. Yet another stand taken by the learnedStanding Counsel is that since certain candidates have filedWrit Petitions and sought for interim injunction restrainingthe official respondents from filling up the vacancies in thepost of Assistant Engineer by way of direct recruitment, theyhave filled up the vacancies to the post of AssistantEngineer by way of promotion. Basing on the above, thelearned Standing Counsel for the second respondentCorporation has prayed for dismissal of the Writ Appeal.

9. The learned Government Advocate appearing for theofficial respondent has submitted that when the matter ispending before the Government for ratification, the act ofthe second respondent in giving promotion to the privaterespondents is valid. Basing on this, the learned GovernmentAdvocate has sought for dismissal of the Writ Appeal. 10. We have considered the above submissions made bythe respective learned counsels. 11. Admittedly, as per Rule 5 of the Rules, vacanciesin the post of Assistant Engineers have to be filled up onlyby way of direct recruitment. The stand of the learnedStanding Counsel for the second respondent Corporation aswell as the learned counsel for the private respondents isthat it is only temporary promotion given to the privaterespondents. Even assuming that it is only temporarypromotion, the same cannot be granted contrary to the Rules. When a promotion order given to any employee of anyestablishment is not in accordance with law, it has to betermed as an illegal promotion/appointment.

Rule 7 of thesaid Rules deals with temporary promotion. As per Rule 7 ofthe Rules, the Appointing Authority shall promote any persontemporarily for a period not exceeding three months in orderto fill up a vacancy. However, in the case on hand, the https://hcservices.ecourts.gov.in/hcservices/ 10private respondents have been issued with promotion orders asearly as January 2009 itself and they have been allowed tooccupy the post of Assistant Engineers for more than oneyear. 12. The argument of the learned counsel for theprivate respondents that the appellant does not have anylocus standi to challenge the promotion orders given to theprivate respondents cannot be allowed to stand, for thereason that even if the appellant is not an employee of thesecond respondent Corporation, as rightly pointed out by thelearned counsel for the appellant, it is not in dispute thatthe name of the appellant was sponsored by the EmploymentExchange and she was also subjected to selection process andwithout announcing the results, the promotion orders havebeen issued to the private respondents, and thereby, theappellant is deprived of her chances of getting appointmentto the post of Assistant Engineer.

When the Rule specificallysays that the vacancies have to be filled up only by way ofdirect recruitment, filling up the same by way of promotionis contrary to the Rules, and thereby, the appellant isdeprived of her chances of getting appointment. Under suchcircumstances, the Judgments relied on by the learned counselfor the private respondents will not have any application tothe facts of the present case. 13. As per the Judgment of the Hon'ble Supreme Court, which is relied on by the learned counsel for the privaterespondents in Ludhiana Central Coop. Bank Ltd v. Amrik Singhreported in 2003 (10) SCC 136, Paragraph Nos.8 and 9, thevacancies have to be filled up only as per the Rules. Thesame has been again reiterated in the Judgment of the Hon'bleSupreme Court in State of Orissa v. Rajkishore Nanda reportedin 2010 (5) MLJ 944, Paragraph Nos.13 and 14. But, here iscase, where the vacancies in the post of Assistant Engineerhave been filed up by way of promotion, consequently, theargument advanced by the learned counsel for the privaterespondents in this regard will not hold good.

14. As far as the other argument advanced by thelearned counsel for the private respondents that theappellant has not challenged the promotion orders issued tothe private respondents is concerned, what was communicatedto the appellant is only the communication dated 13.03.2009,for the information sought for by the appellant under the Right to Information Act, 2005, whereby the appellant was https://hcservices.ecourts.gov.in/hcservices/ 11informed that the vacancies in the post of Assistant Engineerhave been filled up by way of promotion. Apart from this, when the Rule specifically says that the vacancies in thepost of Assistant Engineer have to be filled up only by wayof direct recruitment, the act of the second respondentCorporation in filling up the vacancies by way of promotionis contrary to the Statutory Rules. 15. As per the settled position of law, withoutbringing amendment to the Statutory Rules, no promotion canbe made basing on the executive instructions.