Madras High Court
/ vs Selvi ...1St on 24 July, 2023
2023/MHC/3451
W.A.(MD)Nos.1044 and 1045 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.07.2023
CORAM:
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
AND
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.A.(MD)Nos.1044 and 1045 of 2012
and
M.P.(MD)No.1 & 3 of 2012
1.M.Ravi
2.K.Jeganathan
3.D.Rathinanirmalarani
4.M.Jalaludheen
5.S.Ramasamy
6.K.Rengasamy
7.D.Suresh
8.N.Chelladurai
9.T.Damodharan
10.C.K.Subramanian
11.T.Vadivelu
12.M.Karuppiah
13.P.Arumugam
14.S.Marikannu
15.A.Periyanayaki
16.R.Punithavalli
17.R.Cihtradevi
18.S.Vijayakumar
19.P.Santhi
20.A.Dhanalakshmi
21.N.Ravikumar
1/12
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1044 and 1045 of 2012
22.K.Rakammal
23.T.Dhandapani
24.P.Manimegalai
25.A.Mariyammal
26.C.Meenatshi
27.K.Sankar
28.R.Arankulavan
29.R.Sekar
30.P.Paulraj
31.S.Selvaraj
32.V.Sathishkumar
33.S.Santhi ...Appellants in WA(MD)No.1044 of 2012
/Vs./
1.Selvi ...1st Respondent in WA(MD)No.1044 of 2012
...Sole Respondent in WA(MD)No.1045 of 2012
2.The Regional Joint Director,
Animal Husbandry Department,
Pudukottai, Pudukottai District.
3.The Assistant Director,
Animal Husbandry Department,
Pudukottai, Pudukottai District.
4.The District Employment Officer,
District Employment Office,
Pudukottai,
Pudukottai District. ...Respondents 2 to 4 in WA(MD)No.1044 of 2012
...Appellants in WA(MD)No.1045 of 2012
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1044 and 1045 of 2012
COMMON PRAYER:- Writ Appeals - filed under Clause XV of Letters
Patent Act, to set aside the order dated 31.10.2012 passed in W.P.
(MD)No.13194 of 2012 and allow the writ appeals.
Appearance in WP(MD)No.1044 of 2012:
For Appellants : Mr.V.Panneer Selvam
For Respondents : No appearance (R1)
Mr.Veera Kathiravan (R2 to R4)
Additional Advocate General
Assisted by Mr.S.Shaji Bino,
Special Government Pleader.
Appearance in WP(MD)No.1045 of 2012:
For Appellants : Mr.Veera Kathiravan
Additional Advocate General
Assisted by Mr.S.Shaji Bino,
Special Government Pleader.
For Respondent : No appearance
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1044 and 1045 of 2012
COMMON JUDGMENT
(Judgment of the Court was made by DR.ANITA SUMANTH, J.)
W.P.(MD)No.13194 of 2012 had been filed by one Selvi,
seeking a mandamus directing the officials of the Animal Husbandry
Department in Pudukkottai to cancel the selection process pertaining to
filling up of vacancies for the posts of Animal Husbandry Assistant,
directing them to follow the constitutional mandate by advertising posts
in newspapers, media and thereafter call for names from the District
Employment Office for selection.
2. The writ petitioner had been successful in securing order
dated 31.10.2012 from the Writ Court allowing her writ petition. The
defence taken by the respondents in the writ petition was to the effect
that G.O.Ms.No.1527, Agriculture (A.H.VII) Department, dated
28.08.1985 had stipulated a specific service rule to be followed in the
case of recruitment to the Animal Husbandry Department.
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W.A.(MD)Nos.1044 and 1045 of 2012
3. That rule, at Clause (3), sets out the procedure for
appointment to the posts of Animal Husbandry Assistant stating that the
appointment shall be made from among the holders of the said post, who
had been paid from contingencies, and who had put in service of not less
than five years. In the absence of any person eligible on the aforesaid
counts, recruitment shall be made directly through the Employment
Exchange.
4. Thus, according to the respondents, there was a specific
procedure set out for recruitment through the Employment Exchange,
which had been clearly followed. This submission did not appeal to the
Writ Court that applied the ratio of the judgment of the Hon'ble Apex
Court, in the case of State of Orissa v. Mamata Mohanty (2011 (3) SCC
436), to the effect that, notwithstanding any other mode of appointment,
it was incumbent upon the State Departments to advertise such posts in
newspapers and other public media.
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W.A.(MD)Nos.1044 and 1045 of 2012
5. Yet another defence that had been taken by the respondents,
albeit unsuccessfully, was that the writ petitioner had, infact, been
sponsored by the Employment Exchange and a call letter had been issued
to her, which she had chosen to ignore.
6. In fine, Writ Court directed the respondents to proceed with
the process of selection after advertising the post laying down the
eligibility criteria and make a selection on merits and in accordance with
law. That order of the Writ Court was stayed by the Division Bench of
this Court on 30.11.2012 and 07.12.2012 in the respective writ appeals.
7. The persons who had been selected at the original instance,
have not been arrayed as respondents in the writ petition. Hence, they
had filed third party writ appeals challenging order dated 31.10.2012,
after obtaining appropriate leave.
8. Before us, the writ petitioner is not present, as private notice
directed to her has been returned with the endorsement 'insufficient
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W.A.(MD)Nos.1044 and 1045 of 2012
address' and hence, we proceed to hear learned Additional Advocate
General, Mr.Veera Kathiravan, for the State and Mr.V.Panneerselvam,
learned counsel for the successful appointees.
9. In one voice, both learned counsel would accede to the
position that appointments to public posts must be made after due
publication of the posts in public domain. The judgments of the Hon'ble
Supreme Court in Mamata Mohanty (supra) and of this Court in
Commissioner, Department of Employment and Training, Alandur Road,
Guindy, Chennai-600 032 vs. K.P.Jaganathan (2014 SCC Online Mad
1433) have settled this position.
10. The Division Bench of this Court referring to the judgment
in Mamata Mohanty states thus:-
“35. At one time this Court had been of the
view that calling the names from employment
exchange would curb to certain extent the menace of
nepotism and corruption in public employment. But,
later on, it came to the conclusion that some
appropriate method consistent with the requirements
of Article 16 should be followed. In other words there
must be a notice published in the appropriate manner
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W.A.(MD)Nos.1044 and 1045 of 2012
calling for applications and all those who apply in
response thereto should be considered fairly. Even if
the names of candidates are requisitioned from
employment exchange, in addition thereto it is
mandatory on the part of the employer to invite
applications from all eligible candidates from the
open market by advertising the vacancies in
newspapers having wide circulation or by
announcement in radio and television as merely
calling the names from the employment exchange does
not meet the requirement of the said article of the
Constitution. (Vide Delhi Development Horticulture
Employees# Union v. Delhi Admn., (AIR 1992 SC
789), State of Haryana v. Piara Singh AIR 1992 SC
2130), Excise Supdt. v. K.B.N. Visweshwara Rao
((1996) 6 SCC 216), Arun Tewari v. Zila Mansavi
Shikshak Sangh (AIR 1996 SC 331), Binod Kumar
Gupta v. Ram Ashray Mahoto (AIR 2005 SC 2103),
National Fertilizers Ltd. v. Somvir Singh (AIR 2006
SC 2319), Telecom District Manager v. Keshab Deb
((2008) 8 SCC 402), State of Bihar v. Upendra
Narayan Singh ((2009) 5 SCC 65) and State of M.P. v.
Mohd. Abrahim ((2009) 15 SCC 214)
36. Therefore, it is a settled legal
proposition that no person can be appointed even on a
temporary or ad hoc basis without inviting
applications from all eligible candidates. If any
appointment is made by merely inviting names from
the employment exchange or putting a note on the
noticeboard, etc. that will not meet the requirement of
Articles 14 and 16 of the Constitution. Such a course
violates the mandates of Articles 14 and 16 of the
Constitution of India as it deprives the candidates
who are eligible for the post, from being considered. A
person employed in violation of these provisions is not
entitled to any relief including salary. For a valid and
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W.A.(MD)Nos.1044 and 1045 of 2012
legal appointment mandatory compliance with the
said constitutional requirement is to be fulfilled. The
equality clause enshrined in Article 16 requires that
every such appointment be made by an open
advertisement as to enable all eligible persons to
compete on merit.”
11. The Division Bench, inter alia, refers to an earlier decision
in P.M.Malathi v. State of Tamil Nadu (2012 (3) MLJ 669) to the effect
that any rule imposed by the State that would restrict right of
consideration of eligible candidates for public appointments would be
unconstitutional, discriminative and violative of Articles 14 and 16 of
the Constitution of India.
12. Thus, reference to Employment Exchange (compulsory
notification) would not advance the case of the appellants, as there is
nothing therein that would commend the position that public
announcements of vacancies to public posts is not required. For these
reasons, we see no merit in these writ appeals.
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W.A.(MD)Nos.1044 and 1045 of 2012
13. Having said so, an alternative and mere guarded plea that
is made before us is that the appointments made to positions sponsored
by the Employment Exchange need not be disturbed at this distance of
time. For this purpose also, reference is made to the decision in
K.Jeganathan (supra), where a similar benefit was sought and obtained
by those respondents.
14. The appellant before us has admittedly been sponsored by
the Employment Exchange, but has chosen not to respond to the call
letter. This is an admitted position that flows from para 5 of the order of
the Writ Court. This position is also supported by her own averments in
the writ affidavit to the effect that she received the call letter after the
date of interview and hence was precluded from participating in the
interview process. That apart, the appellants in WA(MD)Nos.1044 of
2012 have been in service from 2012 onwards.
15. Thus, while dismissing the writ appeals, we direct that
continuance of service of the appellants in WA(MD)Nos.1044 of 2012,
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W.A.(MD)Nos.1044 and 1045 of 2012
holding the post of Animal Husbandry Assistants, need not be disturbed,
and they would be entitled to both continuity in service and all attendant,
service and monetary benefits. No costs. Consequently, connected
Miscellaneous Petitions are closed.
[A.S.M.J.,] & [R.V.J.,]
24.07.2023
NCC :Yes/No
Index :Yes/No
Internet :Yes
sm
TO:
1.The Regional Joint Director,
Animal Husbandry Department,
Pudukottai, Pudukottai District.
2.The Assistant Director,
Animal Husbandry Department,
Pudukottai, Pudukottai District.
3.The District Employment Officer,
District Employment Office,
Pudukottai,
Pudukottai District.
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1044 and 1045 of 2012
DR.ANITA SUMANTH, J.
AND
R.VIJAYAKUMAR, J.
sm
Common Judgment made in
W.A.(MD)Nos.1044 and 1045 of 2012
Dated:
24.07.2023
https://www.mhc.tn.gov.in/judis
