Madras High Court
T.Chinnaraja vs The State Of Tamil Nadu on 1 February, 2024
Author: R.Vijayakumar
Bench: R.Vijayakumar
W.P.(MD).Nos.10081 of 2023 batch cases
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
ORDER RESERVED ON : 20.11.2023
ORDER PRONOUNCED ON : 01.02.2024
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.P.(MD).Nos.10081, 10082, 10083, 10084, 10085, 10087, 10418,
10419, 10420, 10421, 10422, 10423, 10424, 11621, 11644, 11647, 12861,
12862, 11865, 11680, 11528, 13845, 11859, 11495, 12650, 11847, 11848,
11849, 11850, 11851, 10308, 10309, 12848, 12849 and 10533 of 2023
and
W.M.P(MD).Nos.8852, 8853, 8856, 8867, 8868, 8869, 8860, 8864,
8865, 8870, 8871, 8873, 8857, 8858, 8859, 8861, 8862, 8866, 10892, 10893,
14086, 10895, 10897, 14088, 16376, 14083 16381, 14078, 14080, 14079,
9230, 9232, 9212, 9216, 9233, 9237, 9243, 9245, 9236, 9238, 9247, 9251,
9275, 9276, 17189, 17203, 17207, 16362, 16363, 16365, 16367, 10093,
16765, 10108, 16761, 10115, 10894, 10296, 10298, 16382, 10143, 10027,
10029, 16371, 11690, 23646, 16372, 10274, 10277, 16379, 9976, 9977,
14082, 10676, 10678, 17259, 10251, 10253, 10278, 10279, 10261, 10262,
10272, 10273, 10267, 10269, 16755, 14084, 14087,16380, 16763, 9159,
9160, 9167, 9169, 14062, 14055, 10876, 10877, 10880, 10881, 16377,
16375, 9358, 9360 and 16378 of 2023
W.P(MD).No.10081 of 2023
T.Chinnaraja ....Petitioner
Vs
1.The State of Tamil Nadu
Represented by its Principal Secretary to Government
Department of Animal Husbandry, Dairying, Fisheries,
Secretariat, Chennai
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1/17
W.P.(MD).Nos.10081 of 2023 batch cases
2.The Commissioner
The Department of Milk Production and Dairy Development
Chennai 51
3.The Managing Director (Aavin)
The Tamil Nadu Co-operative Milk Producer Federation
Chennai 35
4.The Deputy Registrar (Dairy)
Office of Deputy Registrar Office
District Co-operative Milk
Producer's Union Ltd.,
Madurai
Madurai District
5.The General Manager
Madurai District Co-operative Milk
Producer's Union Ltd.,
Madurai
Madurai District ....Respondents
Prayer in WP(MD).No.10081 of 2023: This Petition filed under Article 226
of the Constitution of India, to issue a Writ of Certiorarified Mandamus, to
call for the records relating to the impugned order passed by the second
respondent vide his proceedings in Na.Ka.No.1330/N3/2022-4 dated
28.12.2022 and consequential impugned order passed by the fifth respondent
vide his proceedings in Na.Ka.No.86/Tho.U/2023 dated 04.01.2023 and
quash the same as illegal and consequently direct the respondents to reinstate
the petitioner with all monetary benefits.
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W.P.(MD).Nos.10081 of 2023 batch cases
For Petitioner : Mr.Sricharan Rengarajan
Senior Counsel
For Mr.Ramsundar Vijayaraj
For Respondents : Mr.Veera.Kathiravan
Additional Advocate General
Assisted by
Mr.K.Prabhu
Standing Counsel for the respondents
COMMON ORDER
These writ petitions have been filed by various employees of Madurai
District Co-operative Milk Producers Union Limited challenging the order
passed by the Commissioner of Milk Production and Dairy Development
dated 28.12.2022 and the consequential order passed by the General
Manager, Madurai District Co-operative Milk Producers Union Limited on
04.01.2023 cancelling the appointment orders issued to the writ petitioners on
various grounds.
2.Since common issues are involved, these writ petitions are tagged
together and a common order is passed.
3.Facts leading to the filing of these present writ petitions are as
follows:
(i)An Employment Notification was issued by Madurai District
Co-operative Milk Producers Union in Advertisement Nos.1 of 2019 and 3 of
2019 dated 19.06.2019 for filling up various posts.
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W.P.(MD).Nos.10081 of 2023 batch cases
(ii)The petitioners are said to have appeared for written examination
and after passing through the said examination had appeared for an interview.
All the petitioners were appointed to their respective posts in the first week of
January 2021.
(iii)On the basis of the complaint received from the general public
relating to the alleged illegalities/irregularities in the recruitment process, the
Commissioner of Milk Production and Dairy Development Department had
ordered for an enquiry under Section 81 of the Tamil Nadu Co-operative
Societies Act and appointed the Deputy Registrar (Dairy) Development
Department, Madurai as an Enquiry Officer. After conducting enquiry, he
had submitted a report on 05.08.2022. In the said report, the Enquiry Officer
had found some irregularities/illegalities in the recruitment process.
Accepting the said report, the first respondent in the writ petition had
instructed the third respondent to initiate appropriate action by an order dated
28.12.2022. In compliance with the said order, the third respondent herein
had passed individual impugned orders on 04.01.2023 terminating the
services of all these writ petitioners on various grounds. Challenging these
two orders, the present writ petitions have been filed.
4.Contentions of the learned Senior Counsels appearing for the
writ petitioners are as follows:
(i)As far as the case of the petitioners are concerned, no adverse
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W.P.(MD).Nos.10081 of 2023 batch cases
findings have been made as against the writ petitioners either in the Section
81 enquiry report or in the vigilance report. Their appointment orders have
been cancelled solely on the ground that the authorities have failed to follow
communal reservation and the appointment is on the basis of lapsed
employment exchange list.
(ii)As far as the case of the some of the other writ petitioners are
concerned, in the enquiry report, it is alleged that without properly
ascertaining whether the candidate is qualified to be considered under the
land loser category, the petitioner had been appointed. In the impugned order,
it is alleged that the land loser priority certificate is not in the proper format.
(iii)The learned Senior Counsel had further contended that the power
to appoint the employees and the power to terminate them vest only with the
Board of Directors as per bye-laws of the concerned societies. The first
respondent or the third respondent herein do not have any power to terminate
the already appointed employees. Some of the petitioners have submitted
their applications through registered post or courier and only one of the
petitioner namely the petitioner in WP(MD).No.10424 of 2023 had submitted
his application in person. Therefore, there is no question of irregularity or
illegality in the recruitment process warranting the cancellation of
appointment orders enmass.
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W.P.(MD).Nos.10081 of 2023 batch cases
(iv)The learned Senior Counsel had further relied upon a judgment of
the Hon'ble Supreme Court reported in (2021) 4 SCC 631 ( Sachin Kumar
and others Vs. Delhi Subordinate Service Selection Board (DSSSB) and
others) to impress upon the Court that when no irregularity could be pointed
out to have taken place at a systemic level so as to initiate the santity of the
entire process, it does not call for cancellation of the recruitment process in
its entirety. In case, if the appointment order of any one of the individual is
found tainted, the same could have been segregated by the authorities.
However, as far as the present case is concerned, no serious irregularities
warranting the cancellation of the appointment orders even without issuing
notice has been pointed out by the respondent authorities. Hence, he prayed
for allowing all the writ petitions and to reinstate the petitioners in service
with all attendance benefits.
5.Contentions of the learned Additional Advocate General
appearing for the respondents are as follows:
(i)The learned Additional Advocate General had contended that as per
the Hon'ble Division Bench judgment of this Court in WA(MD).No.1027 of
2013 dated 09.06.2014, the Commissioner of Milk Production and Dairy
Development Department had issued a circular on 24.02.2015 describing the
procedure to be followed in the recruitment process. As per the said
procedure, apart from inviting applications through employment exchange,
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W.P.(MD).Nos.10081 of 2023 batch cases
advertisement should be issued in newspapers. In the case of the writ
petitioners, though their names were sponsored by the employment exchange,
the list had expired in the period of six months and therefore, a fresh list
ought to have been called for from the employment exchange. Without calling
for a fresh list from the Employment Exchange, the recruitment has been
made based upon the lapsed Employment Exchange List. Therefore, the
appointment of the writ petitioners will cause great prejudice to the
candidates who are in the waiting list from the Employment Exchange.
(ii)The learned Additional Advocate General had further contended
that communal roster has not been properly followed and this has caused
great prejudice to the community of candidates in favour of whom seats have
been reserved.
(iii)The petitioners were issued with summons by the Enquiry Officer
under Section 81 of the Tamil Nadu Co-operative Societies Act. The
petitioners have participated in the enquiry proceedings and they have given a
statement also. Therefore, the petitioners cannot contend that the enquiry
report is in violation of principles of natural justice.
(iv)The writ petitioners being probationers and have no lien over the
posts and they could very well be terminated without issuing any notice or
conducting an enquiry. Therefore, the orders in the writ petition cannot be
attacked on the ground of violation of principles of natural justice.
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W.P.(MD).Nos.10081 of 2023 batch cases
(v)A large scale fraudulent activities and malpractices have been
detected during the Section 81 enquiry and therefore, the entire recruitment
process was found to be vitiated with fraud warranting cancellation of the
appointment orders.
(vi)The impugned orders cancelling the appointment order are
non-stigmatic in nature and therefore, the question of issuing a show cause
notice or conducting an enquiry during the probation period does not arise.
(vii)The learned Additional Advocate General had contended that the
candidates have to mandatorily enclosed a demand draft for Rs.250/- along
with applications. In many applications relating to the selected candidates,
the demand drafts have not been enclosed. The applications have been
received after the cut-off date without demand drafts. These applications have
been inserted and therefore, the fraud has been played in the entire
recruitment process.
(viii)The learned Additional Advocate General relied upon paragraph
No.35 of the judgment of the Hon'ble Supreme Court reported in (2021) 4
SCC 631 ( Sachin Kumar and others Vs. Delhi Subordinate Service
Selection Board (DSSSB) and others) to impress upon the Court that the
entire process has lost its legitimacy and there is no option for the respondent
authorities to cancel the recruitment process in its entirety. The recourse to
unfair means has taken place and it is very difficult for the authorities
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W.P.(MD).Nos.10081 of 2023 batch cases
segregating the tainted with untainted participants. Hence, he prayed for
sustaining the order passed by the authorities concerned.
6.I have carefully considered the submissions made on either side and
perused the material records.
Discussion:
7.A perusal of the impugned orders passed by the authorities concerned
clearly reveals that the services of the petitioners have been terminated on the
following grounds:
(a)Cadre strength of the concerned society has not been approved by
the first respondent herein.
(b)Communal rotation has not been properly followed.
(c)The sponsorship list from the District Employment Exchange
Madurai had lapsed after a period of six months. Based upon the lapsed
Employment Exchange list, appointments have been made.
(d)The candidates have not submitted their applications within the last
date, but have inserted their applications beyond the last date.
(e)They have submitted the applications without the mandatory
demand drafts.
8.The candidates who were similarly placed in Madurai Union had
challenged the order of termination before another learned Single Judge in a
batch of writ petitions.
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W.P.(MD).Nos.10081 of 2023 batch cases
9.The learned Single Judge by his order dated 29.03.2023 had
dismissed those writ petitions. Challenging the same, the terminated
employees had filed W.A(MD).Nos.554 to 596 of 2023 and batch cases
before the Hon'ble Division Bench. The Hon'ble Division Bench by its order
dated 13.10.2023 has disposed of those writ appeals. As far as the recruitment
process in the Madurai Union is concerned, the following are the
observations made by the Hon'ble Division Bench.
(a) A vast majority of the selected candidates are undoubtedly privy to
the fraud played for which materials are on record before us.
(b) Out of 43 selected candidates, 33 candidates have not sent their
applications through registered post, but they have chosen to sent their
applications in person through their family members or relative.
(c) A majority of the selected candidates have not filled up the date in
the last page of application. They have also not filled up the demand draft
numbers in their applications.
(d)In most of the applications, the demand draft particulars are written
in a different ink which would indicate fraud and corruption.
(e)The written examination for the candidates has been conducted by
Bharadhidasan University. However, none of the OMR sheets or results or
particulars are available in the files.
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W.P.(MD).Nos.10081 of 2023 batch cases
(f)After conducting the written examinations, the results have been
thrown to dustbin. The applications were procured from the persons whom
they wanted to appoint and they have inserted their applications even without
demand drafts.
(g)Out of 4686 eligible applications, hall tickets were distributed only
for 2599 candidates.
(h)For the post of Senior Factory Assistant, out of 28 persons selected,
9 of them belong to Neeravi and Ramasamypatti in Ramand District and 8 of
them belong to Arupukkottai area. When the general manager was called to
appear for enquiry, she has not chosen to appear.
(i)It is clear that it is not a selection process but a criminal conspiracy,
cheating, falsification of records and it result of total undoubted and
egregious fraud.
10.Based upon the above said findings, the Hon'ble Division Bench
was pleased to concur with the learned Single Judge thereby confirming the
order of cancellation of appointment orders. The Hon'ble Division Bench was
also pleased to direct to initiate the disciplinary action and the criminal action
as against the concerned officials.
11.The Hon'ble Supreme Court in a judgement reported in (2021) 4
SCC 631 ( Sachin Kumar and others Vs. Delhi Subordinate Service
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W.P.(MD).Nos.10081 of 2023 batch cases
Selection Board (DSSSB) and others) in Paragraph No.35 has held as
follows:
“35.... There are cases which border upon or cross-over
into the domain of fraud as a result of which the credibility and
legitimacy of the process is denuded. This constitutes one end of
the spectrum where the authority conducting the examination or
convening the selection process comes to the conclusion that as a
result of supervening event or circumstances, the process has lost
its legitimacy, leaving no option but to cancel it in its entirety.
Where a decision along those lines is taken, it does not turn upon a
fact-finding exercise into individual acts involving the use of mal-
practices or unfair means. Where a recourse to unfair means has
taken place on a systemic scale, it may be difficult to segregate the
tainted from the untainted participants in the process. Large scale
irregularities including those which have the effect of denying
equal access to similarly circumstanced candidates are suggestive
of a malaise which has eroded the credibility of the process. At the
other end of the spectrum are cases where some of the participants
in the process who appear at the examination or selection test are
guilty of irregularities. In such a case, it may well be possible to
segregate persons who are guilty of wrong-doing from others who
have adhered to the rules and to exclude the former from the
process. In such a case, those who are innocent of wrong-doing
should not pay a price for those who are actually found to be
involved in irregularities. By segregating the wrong-doers, the
selection of the untainted candidates can be allowed to pass
muster by taking the selection process to its logical conclusion.
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W.P.(MD).Nos.10081 of 2023 batch cases
This is not a mere matter of administrative procedure but as a
principle of service jurisprudence it finds embodiment in the
constitutional duty by which public bodies have to act fairly and
reasonably. A fair and reasonable process of selection to posts
subject to the norm of equality of opportunity under Article
16(1) is a constitutional requirement. A fair and reasonable process is a
fundamental requirement of Article 14 as well. Where the recruitment
to public employment stands vitiated as a consequence of systemic
fraud or irregularities, the entire process becomes illegitimate. On
the other hand, where it is possible to segregate persons who have
indulged in mal-practices and to penalise them for their wrong-
doing, it would be unfair to impose the burden of their wrong-
doing on those who are free from taint. To treat the innocent and
the wrong-doers equally by subjecting the former to the
consequence of the cancellation of the entire process would be
contrary to Article 14 because unequals would then be treated
equally. The requirement that a public body must act in fair and
reasonable terms animates the entire process of selection. The
decisions of the recruiting body are hence subject to judicial
control subject to the settled principle that the recruiting authority
must have a measure of discretion to take decisions in accordance
with law which are best suited to preserve the sanctity of the
process. Now it is in the backdrop of these principles, that it
becomes appropriate to advert to the precedents of this Court
which hold the field.”
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W.P.(MD).Nos.10081 of 2023 batch cases
12.A careful perusal of the judgment of the Hon'ble Supreme Court
will clearly indicate that when there are large scale irregularities in the
recruitment process and it is not possible to segregate the tainted from the
untainted participants, the entire selection process is vitiated and the same
has to be set aside.
13.The Hon'ble Division Bench was dealing with the recruitment
process arising out of three notifications dated 19.06.2019. The present writ
petitions also relate to the same notifications namely Advertisement Nos.
1/2019 and 3/2019 dated 19.06.2019. Therefore, this Court is inclined to
follow the judgment of the Hon'ble Division Bench. The finding of the
Hon'ble Division Bench with regard to the recruitment process followed by
Madurai Union would clearly indicate that a systemic fraud has been
committed by inserting applications after due date without even the
mandatory demand drafts. For the written examinations conducted, the OMR
mark sheets and the results have disappeared. Therefore, it is clear that it is
very difficult to segregate the tainted from the untainted participants as far as
the recruitment process for the Madurai Union is concerned.
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W.P.(MD).Nos.10081 of 2023 batch cases
14.In view of the above said facts, this Court is not inclined to
accept any one of the contentions of the learned senior counsels appearing
for the writ petitioners and all the writ petitions stand dismissed. No costs.
Consequently, connected miscellaneous petitions are closed.
01.02.2024.
R.VIJAYAKUMAR, J.
At the time of pronouncing the order, the learned counsel appearing
for the writ petitioners brought to the notice of the Court, the order of the
Hon'ble Supreme Court in SLP(Civil).Nos.1400 to 1402 of 2024 dated
23.01.2024 wherein the Hon'ble Apex Court has directed not to take any
coercive action as against one of the appointees in the Madurai Union.
Considering the said fact, the order in the present writ petitions will be kept
in abeyance till 29.02.2024 to enable the petitioners to approach the
appropriate forum.
01.02.2024
Internet : Yes/No
Index : Yes/No
NCC : Yes/No
msa
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W.P.(MD).Nos.10081 of 2023 batch cases
To
1.The Principal Secretary to Government
State of Tamil Nadu
Department of Animal Husbandry, Dairying, Fisheries,
Secretariat, Chennai
2.The Commissioner
The Department of Milk Production and Dairy Development
Chennai 51
3.The Managing Director (Aavin)
The Tamil Nadu Co-operative Milk Producer Federation
Chennai 35
4.The Deputy Registrar (Dairy)
Office of Deputy Registrar Office
District Co-operative Milk
Producer's Union Ltd.,
Madurai
Madurai District
5.The General Manager
Madurai District Co-operative Milk
Producer's Union Ltd.,
Madurai
Madurai District
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W.P.(MD).Nos.10081 of 2023 batch cases
R.VIJAYAKUMAR, J.
msa
Pre-delivery common order made in
W.P.(MD).Nos.10081, 10082, 10083, 10084, 10085,
10087, 10418, 10419, 10420, 10421, 10422, 10423,
10424, 11621, 11644, 11647, 12861, 12862, 11865,
11680, 11528, 13845, 11859, 11495, 12650, 11847,
11848, 11849, 11850, 11851, 10308, 10309, 12848,
12849 and 10533 of 2023
and
W.M.P(MD).Nos.8852, 8853, 8856, 8867,
8868, 8869, 8860, 8864, 8865, 8870, 8871, 8873,
8857, 8858, 8859, 8861, 8862, 8866, 10892, 10893,
14086, 10895, 10897, 14088, 16376, 14083 16381,
14078, 14080, 14079, 9230, 9232, 9212, 9216, 9233,
9237, 9243, 9245, 9236, 9238, 9247, 9251, 9275,
9276, 17189, 17203, 17207, 16362, 16363, 16365,
16367, 10093, 16765, 10108, 16761, 10115, 10894,
10296, 10298, 16382, 10143, 10027, 10029, 16371,
11690, 23646, 16372, 10274, 10277, 16379, 9976,
9977, 14082, 10676, 10678, 17259, 10251, 10253,
10278, 10279, 10261, 10262, 10272, 10273, 10267,
10269, 16755, 14084, 14087,16380, 16763, 9159,
9160, 9167, 9169, 14062, 14055, 10876, 10877,
10880, 10881, 16377, 16375, 9358, 9360 and 16378
of 2023
01.02.2024
https://www.mhc.tn.gov.in/judis
