Madras High Court
Union Of India vs M.Gopalakrishnan on 28 September, 2021
1 W.A.No.1872 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.09.2021
Coram
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
W.A.No.1872 of 2018
and CMP.No.15003 of 2018
1.Union of India
through Secretary,
Ministry of Social Justice and Empowerment,
Government of India,
New Delhi.
2.National Institute for the Visually Handicapped,
116, Rajpur Road,
District Dehradun,
through its Director
3.National Institute for the Visually Handicapped,
Regional Centre, Rep. by its Regional Director,
Karaiyanchavadi,
Poonamalle,
Chennai ... Appellants
vs.
M.Gopalakrishnan ... Respondent
https://www.mhc.tn.gov.in/judis
2 W.A.No.1872 of 2018
Prayer: Writ appeal is filed under clause 15 of the Letter Patent praying to
set aside the order dated 02.11.2017 made in W.P.No.31810 of 2006.
For Appellants : Mr. V. Chandrasekeran
for 1st appellant
Mr. R. Priyakumar
for 2nd & 3rd appellants
For Respondent : Mr.B.Vijayakumar
JUDGMENT
(Judgement of the Court was made by S.VAIDYANATHAN, J.)
The present writ appeal has been preferred against the order dated
02.11.2017 in W.P.No.31810 of 2006.
2. According to the appellants, there was an advertisement in the
newspaper for one post of Vocational Training and Placement Officer reserved
for OBC and that the writ petitioner/respondent herein who is a visually
impaired person has been appointed as a 'Braille Shorthand Instructor'. While
so, he was asked to perform the additional duties of the Placement Officer,
therefore he has been sought to be regularised on the phase of the
notification. However, the writ petitioner does not fall under any of the
categories earmarked for OBC and that he has not participated in the direct
https://www.mhc.tn.gov.in/judis
recruitment for the said post to be considered for appointment. The learned
counsel for the appellants further submit that in the light of the fact that it is
reserved for OBC, the writ petitioner being a Scheduled Caste candidate
cannot be asked to be posted in a post as there cannot be any direct
recruitment for Scheduled Caste when the post is earmarked for OBC. Hence
the learned Single Judge ought not to have directed regularisation of the writ
petitioner services as Vocational Training and Placement Officer from the date
of his initial appointment with all other benefits. He would further submit that
now the writ petitioner/respondent herein has attained the age of
superannuation.
3. The learned counsel for the respondent/writ petitioner would contend
that he has joined the services in the year 1986 as stated by the appellants
herein but he was appointed at Dehradurn and thereafter transferred to
Chennai in the year 1994. Pursuant to an office order dated 26.08.1994, he was
asked to look after the Vocational Training aspects of the centre, apart from
the duties of the 'Braille Shorthand Instructor'. The learned Single Judge taking
note of the fact that the respondent's herein services have been utilised in
both the posts and that the respondent was in service for more than three
decades and that he has been discharging work of both the posts namely short
hand instructor and the Vocational Training and Placement Officer from the
https://www.mhc.tn.gov.in/judis
year 1994 has rightly directed the appellants to regularise the services of the
writ petitioner. Hence even though the post has been reserved for OBC the
fact that the writ petitioner/respondent herein has been discharging work for
nearly three decades shall not be disturbed from the present position was the
observation made by the learned Single Judge which need not be interfered
with.
4. Heard both parties and perused the materials available on record.
5. The facts that the writ petitioner joined the service in the year 1986 as
Braille Shorthand Instructor by the second appellant which organisation is
functioning under the control of the first appellant Ministry and transferred
from Dehradun to Chennai in the year 1988 and performing work of Shorthand
instructor apart from Vocational Training aspect in the centre from 01.09.1994
are not in dispute. From that date onwards he has been discharging the work
of both the posts and retired from service. While considering the notification
published in the newspaper dated 24.06.2006 the learned Single Judge has
observed as follows:-
“8. This Court after having considered the rival
submissions of the learned counsel for the parties and
perusing the documents and pleadings placed on record, is in
full agreement with the contentions putforth by the learned
https://www.mhc.tn.gov.in/judis
counsel for the petitioner. The petitioner having rendered the
services for more than 20 years in the post of Vocational
Training and Placement Officer, his services required for the
Institute in a larger public interest and for the benefit of the
students, who are studying in the Institute. Although this
Court is conscious of the fact that as per the notification, the
said post is reserved for OBC category, nevertheless this
Court has to consider the larger interest of the petitioner vis-
a-vis Institute and therefore, hold that the petitioner is
entitled to regularisation of his services as Vocational
Training and Placement Officer, in view of his long
uninterrupted service. According to the petitioner, he is fully
qualified for the post, which fact has not been disputed in the
counter affidavit. Moreover, by virtue of the admitted fact
that the petitioner has been continued for more than 20 years
in the same post, even assuming that there is any short
coming in the qualification, the same cannot be held against
the petitioner. Particularly, the Institute itself has extracted
the services of the petitioner in the same post for more than
20 years.
9.As regards the reservation to the post in the OBC
category is concerned, this Court is of the view that the
constitutional protection given to the Schedule Cast category
must prevail and preference to OBC category cannot result in
negation of the right of the persons belonging to SC category.
While holding so, this Court is of the view that the very
notification for the subject post is arbitrary, unreasonable and
https://www.mhc.tn.gov.in/judis
irrational since already the petitioner was available for being
regularly appointed and such being the case, the question of
notifying the vacancy for direct recruitment does not arise at
all. Therefore, this Court has no other option except to
conclude that the impugned notification in respect of the
subject post namely the Vocational training and placement
Officer calling for applications from open competition is liable
to the interfered with”.
10. In view of the above observation, it is very clear that the writ petitioner
was employed for more than two decades and after having extracted the work,
it cannot be contended that an advertisement has been made and that the writ
petitioner is not eligible to be appointed or regularised as the writ petitioner
has been asked to perform additional work cannot be accepted. The appellants
2 & 3 ought to have taken steps to regularise the services of the writ petitioner
who belongs to Scheduled Caste Community. Now that the writ petitioner has
already retired from service. Therefore, there will not be any embargo for
publishing fresh advertisement for the said post based on the rules available
and as the writ petitioner has discharged both the works, he would be entitled
to get all the benefits as if he has discharged the service as the Vocational
Training and Placement Officer and the terminal benefits have got to be
released. In fact as per the pension rules, the last ten months drawn pay have
to be taken into account for the purpose of settling the pensionary and other
https://www.mhc.tn.gov.in/judis
benefits. In view of the same, we are of the view that there is no reason to
interfere with the order of the learned Single Judge and the writ appeal is
dismissed. No costs. Consequently connected miscellaneous petition is also
closed.
(S.V.N.J.,) (A.A.N.J.,)
28.09.2021
dpq
Speaking order/Non-speaking order
Index: Yes/No
Internet: Yes/No
https://www.mhc.tn.gov.in/judis
S.VAIDYANATHAN, J.
and
A.A.NAKKIRAN, J.
dpq
To
1. The Secretary,
Union of India,
Ministry of Social Justice and Empowerment,
Government of India,
New Delhi.
2. The Director
National Institute for the Visually Handicapped,
116, Rajpur Road,
District Dehradun,
3. The Regional Director,
National Institute for the Visually Handicapped,
Regional Centre, Karaiyanchavadi,
Poonamalle, Chennai
W.A.No.1872 of 2018
and CMP.No.15003 of 2018
28.09.2021
https://www.mhc.tn.gov.in/judis
