Madras High Court
A.Rama Moorthy vs State Of Tamil Nadu on 19 January, 2010
Author: K. Chandru
Bench: K. Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.01.2010
CORAM:
THE HONBLE MR. JUSTICE K. CHANDRU
W.P.Nos. 26621 to 26631 of 2009
and
M.P.Nos.1, & 2 of 2009 (in all W.P's.)
A.Rama Moorthy ... Petitioner in W.P.No.26621 of 2009
A.Asai Thambi ... Petitioner in W.P.No.26622 of 2009
K.Thanigaivel ... Petitioner in W.P.No.26623 of 2009
B.Chandra Sekar ... Petitioner in W.P.No.26624 of 2009
V.Vijayalakshmi ... Petitioner in W.P.No.26625 of 2009
N.Venkatesan ... Petitioner in W.P.No.26626 of 2009
A.Palanisamy ... Petitioner in W.P.No.26627 of 2009
C.Salimbasha ... Petitioner in W.P.No.26628 of 2009
G.Duraibabu ... Petitioner in W.P.No.26629 of 2009
K.Sivaraman ... Petitioner in W.P.No.26630 of 2009
N.P.Bhavani Sankar ... Petitioner in W.P.No.26631 of 2009
-vs-
State of Tamil Nadu,
Rep. by its Secretary,
School Education Department,
Fort St. George,
Chennai - 600 009.
Director of School Education,
Chennai - 600 006. ... Respondents 1 & 2 in all W.P's.
The Chief Educational Officer,
Thiruvallur District,
Thiruvallur. ... 3rd Respondent in W.P.Nos.26221,
26224,26626 & 26629 of 2009
The Chief Educational Officer,
Kanchipuram District,
Kanchipuram. ... 3rd Respondent in W.P.Nos.26222,26223,26625,26627, 26628,26630 & 26631 of 2009
Prayer in all W.P's:- Writ Petitions filed under Article 226 of the Constitution of India for issuance of Writ of Certiorari to call for the records of the first respondent relating to G.O.No.283 of 2009 dated 03.11.2009, and quash the same.
For Petitioner :Mr.S.Jayaprakash
(in all W.P's.)
For Respondents :Mrs.E.Renganayaki
(in all W.P's.) Government Advocate
O R D E R
In these Writ Petitions, the petitioners have come forward to challenge the order of the State Government in G.O.Ms.No.283, Education Department, dated 03.11.2009. By the said order, the State Government had decided as a matter of policy 20% of the vacancies of the Art teachers will be reserved for candidates, who have sufficient qualification and working as non-teaching staff in various schools. Even within 20%, the Government has made further classification. The post will have to be filled up by 3% for Watchman, 3% for Office Assistant, 3% for Record Clerk, 3% for Laboratory Assistant, 4% for Junior Assistant and another 4% for Assistant. Even this order came to be made because there were earlier directions to consider the case of the petitioners and similarly placed persons, who have acquired a T.T.C Training Certificate by undergoing training for three months and who are also eligible to be appointed by G.O.Ms.No.753, School Education, dated 16.07.1985.
2. Some other petitioners have moved this Court with a direction to consider their candidature for appointment as Drawing Teacher by appointment by transfer. Under the relevant rules, for the post of Drawing Masters, the qualifications are Degree with Drawing and Painting under part III of the University in the State or its equivalent, Diploma in drawing and Diploma in painting and drawing from the Annamalai University or SSLC completed and Government Technical Higher Grade in free hand outline model or Government Diploma in drawing or Technical Teachers Certificate. The rules also provide that the post will have to be filled up by direct recruitment and as a residual clause, the post can be filled up by the persons who are having qualification of drawing from other services.
3. In the present case, the petitioners moved this Court with various Writ Petitions and this Court by order dated 04.01.2008 directed the case of the petitioners to be considered. It is the case of the petitioners that in order to circumvent relief being granted to the petitioners, the Government has come forward to issue impugned Government Order whereby reserving only 20% of the vacancies for the non-teaching staff who are having least qualification for appointment to the said post.
4. The ground taken in the Writ Petitions was that the order was issued only to circumvent the order passed by this Court as early as on 04.01.2008. One person by name R.Manoharan, Office Assistant working in the Government High School, Ranipet, filed a Contempt Petition. In order to avoid the Contempt, he was given an appointment in the post of the Drawing Master. But, in the case of the petitioners by restricting the percentage to 20% in effect denying the right of the petitioners to get appointed by transfer from the service held by them. It is also stated that the fixation of 20% was without application of mind and it has been done only to avoid the Contempt Proceedings.
5. This Court is unable to countenance any one of the grounds raised in the Writ Petitions. Insofar as recruitment to the post of Drawing Masters are concerned, the same is covered by the rules framed under Article 309 of the Constitution. The posts will have to be filled up strictly in terms of the relevant rules. Appointment by transfer from other Service including the non-teaching staff is only an exemption and it cannot become a general rule. It is also seen that under relevant rules, qualifications prescribed for the said post is also Degree in Drawing and the posts can also filled up by direct recruitment. That apart, if the course suggested by the petitioners are accepted, all the Drawing Masters posts will be filled up only by the non-teaching staff who have undergone, only a three months TTC Training. That is not the purport of the rule.
6. The Government, having framed the relevant rules under Article 309 of the Constitution, is also empowered to fix ratio for the different sources of entry in to the service. In the present case, the Government after consulting the Director of School Education had issued present Government Order reserving 20% vacancies. It is also stated that even in respect of the Secondary Grade Teachers and Tamil Teacher posts, when the Ministerial Staff and other non-teaching staff are considered only against 2% of the post. But in the case of Drawing Masters, the Government has given 20% quota. In order to avoid future controversy, it further subdivided with ratio for each of the non-teaching posts. Merely because on the ratio fixed, the chances of the petitioners in getting appointed to the post will be reduced by itself cannot be a ground to challenge the ratio.
7. In fact the petitioners must thank themselves that 20% reservation have been made exclusively for the non-teaching staff to be brought by transfer from the service under which they are employed. Though it is not conducive for making said reservation since the Government has taken policy decision, this Court cannot go into the validity of said reservation. The contention that the said Government Order is passed only to circumvent orders passed by this Court cannot be accepted. This Court had merely directed the petitioners claim will have to be considered. It only means that it has to be considered in accordance with rules.
8. The contention that one person has been given appointment and therefore the petitioners must also be provided with such employment does not stand to reason.
9. On the contrary, the Supreme Court in Col.B.J.Akkara (Retd.) vs. Government of India and others reported in 2006 (11) SCC 709 has held that merely because the Government had chosen to implement a wrong order which became final, that by itself will not give any cause of action to the other persons without deciding the issue on merit. It is therefore necessary to extract para 26 of the judgment and it reads as follows:
" A particular judgment of the High Court may not be challenged by the State where the financial repercussions are negligible or where the appeal is barred by limitation. It may also not be challenged due to negligence or oversight of the dealing officers or on account of wrong legal advice, or on account of the non-comprehension of the seriousness or magnitude of the issue involved. However, when similar matters subsequently crop up and the magnitude of the financial implications is realised, the State is not prevented or barred from challenging the subsequent decisions or resisting subsequent writ petitions, even though judgment in a case involving similar issue was allowed to reach finality in the case of others. Of course, the position would be viewed differently, if petitioners plead and prove that the State had adopted a pick-and-choose method only to exclude petitioners on account of mala fides or ulterior motives. Be that as it may. On the facts and circumstances, neither the principle of res judicata nor the principle of estoppel is attracted. The administrative law principles of legitimate expectation or fairness in action are also not attracted. Therefore, the fact that in some cases the validity of the circular dated 29-10-1999 (corresponding to the Defence Ministry circular dated 11-9-2001) has been upheld and that decision has attained finality will not come in the way of the State defending or enforcing its circular dated 11-9-2001.
10. Very recently, the Supreme Court in a case in Shanti Sports Club & Another vs. Union of India & others reported in 2009 AIR SCW 6953 after referring to all the previous case laws has held that no court shall issue such a mandamus on the specious plea of either discrimination or they were unequally treated. It is necessary to extract the following passage found in paragraphs 50 to 52, which read as follows:
"50. The plea of discrimination and violation of Article 14 of the Constitution put forward by the appellants is totally devoid of substance because they did not produce any evidence before the High Court and none has been produced before this Court to show that their land is identically placed qua the lands on which Hamdard Public School, St. Xavier School, Scindia Potteries, etc., exist. In the representations made to different functionaries of the Government and DDA, the appellants did claim that other parcels of the land have been de-notified and before the High Court a copy of notification dated 6.9.1996 issued under Section 48(1) was produced, but the said assertion and notification were not sufficient for recording a finding that their case is identical to those whose land had been denotified. The burden to prove the charge of discrimination and violation of Article 14 was on the appellants. It was for them to produce concrete evidence before the Court to show that their case was identical to other persons whose land had been released from acquisition and the reasons given by the Government for refusing to release their land are irrelevant or extraneous. Vague and bald assertions made in the writ petition cannot be made basis for recording a finding that the appellants have been subjected to invidious or hostile discrimination. That apart, we are prima facie of the view that the Government's decision to withdraw from the acquisition of some parcels of land in favour of some individuals was not in public interest. Such decisions had, to some extent, resulted in defeating the object of planned development of Delhi on which considerable emphasis has been laid by the Full Bench of the High Court and this Court. This being the position, Article 14 cannot be invoked by the appellants for seeking a direction to the respondents to withdraw from the acquisition of the land in question. Article 14 of the Constitution declares that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The concept of equality enshrined in that Article is a positive concept. The Court can command the State to give equal treatment to similarly situated persons, but cannot issue a mandate that the State should commit illegality or pass wrong order because in another case such an illegality has been committed or wrong order has been passed. If any illegality or irregularity has been committed in favour of an individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of this Court and seek a direction that the same irregularity or illegality be committed in their favour by the State or its agencies/instrumentalities. In other words, Article 14 cannot be invoked for perpetuating irregularities or illegalities. In Chandigarh Administration vs. Jagjit Singh (1995) 1 SCC 745, this Court made a lucid exposition of law on this subject. The facts of that case were that the respondents, who had given the highest bid for 338 sq. yds. plot in Section 31A, Chandigarh defaulted in paying the price in accordance with the terms and conditions of allotment. After giving him opportunity of showing cause, the Estate Officer cancelled the lease of the plot. The appeal and the revision filed by him were dismissed by the Chief Administrator and Chief Commissioner, Chandigarh respectively. Thereafter, the respondent applied for refund of the amount deposited by him. His request was accepted and the entire amount paid by him was refunded. He then filed a petition for review of the order passed by the Chief Commissioner, which was dismissed. However, the Officer concerned entertained the second review and directed that the plot be restored to the respondent. The latter did not avail benefit of this unusual order and started litigation by filing writ petition in the High Court, which was dismissed on March 18, 1991. Thereafter, the respondent again approached the Estate Officer with the request to settle his case in accordance with the policy of the Government to restore the plots to the defaulters by charging forfeiture amount of 5%. His request was rejected by the Estate Officer. He then filed another writ petition before the High Court, which was allowed only on the ground that in another case pertaining to Smt.Prakash Rani, the Administrator had restored the plot despite dismissal of the writ petition filed by her. While reversing the order of the High Court, this Court observed as under:-
"We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Since we have come across many such instances, we think it necessary to deal with such pleas at a little length. Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law but even if it cannot be corrected,it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioner's case is similar to the other person's case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before the Court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the Court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the case nor is his case. In our considered opinion, such a course barring exceptional situations would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world".(Emphasis added)
51. Similar is the ratio of the judgments in Narain Das v. Improvement Trust, Amritsar (1973) 2 SCC 265,Gursharan Singh v.New Delhi Municipal Committee (1996) 2 SCC 459, Secretary, Jaipur Development Authority v. Daulat Mal Jain (supra), Yadu Nandan Garg v. State of Rajasthan and others (supra), State of Haryana v. Ram Kumar Mann [(1997) 3 SCC 321], Faridabad CT. Scan Centre v. D.G.Health Services [(1997) 7 SCC 752], Style (Dress land) v. Union Territory, Chandigarh [(1999) 7 SCC 89], State of Bihar v. Kameshwar Prasad Singh (2000) 9 SCC 94, Union of India v. International Trading Co. (2003) 5 SCC 437, Ekta Sakthi Foundation v. Govt. of NCT of Delhi (2006) 10 SCC 337, Sanjay Kumar Munjal v. Chairman, UPSC (2006) 3 SCC 42, K.K.Bhalla v. State of M.P. and others (2006) 3 SCC 581, National Institute of Technology v. Chandra Sekhar Chaudhary (2007) 1 SCC 93, Vice Chancellor, M.D.University, Rohtak v. Jahan Singh (2007) 5 SCC 77, State of Kerala and others v. K.Prasad and another (2007) 7 SCC 140, Punjab State Electricity Board and others vs. Gurmail Singh (2008) 7 SCC 245 and Panchi Devi v. State of Rajasthan and others (2009) 2 SCC 589.
52. Before concluding, we consider it necessary to enter a caveat. In all developed countries, great emphasis has been laid on the planned development of cities and urban areas. The object of planned development has been achieved by rigorous enforcement of master plans prepared after careful study of complex issues, scientific research and rationalisation of laws. The people of those countries have greatly contributed to the concept of planned development of cities by strictly adhering to the planning laws, the master plan etc. They respect the laws enacted by the legislature for regulating planned development of the cities and seldom there is a complaint of violation of master plan etc. in the construction of buildings, residential, institutional or commercial. In contrast, scenario in the developing countries like ours is a substantially different. Though, the competent legislatures have, from time to time, enacted laws for ensuring planned development of the cities and urban areas, enforcement thereof has been extremely poor and the people have violated the master plans, zoning plans and building regulations and bye-laws with impunity. In last four decades, almost all cities, big or small, have seen unplanned growth. In the 21st century, the menace of illegal and unauthorized constructions and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent people and those having support of the political and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls etc., in blatant violation of the municipal and town planning laws, master plans, zonal development plans and even the sanctioned building plans. In most of the cases of illegal and unauthorized constructions, the officers of the municipal and other regulatory bodies turn blind eye either due to the influence of higher functionaries of the State or other extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions, master plan etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The people belonging to this class do not realize that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building is used for the purpose other than the one specified in the relevant statute or the master plan etc., such constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage etc. apart from creating chaos on the roads. The pollution caused due to traffic congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the society, who cannot afford the luxury of air-conditioned cars, are the worst victims of pollution. They suffer from skin diseases of different types, asthma, allergies and even more dreaded diseases like cancer. It can only be a matter of imagination how much the government has to spend on the treatment of such persons and also for controlling pollution and adverse impact on the environment due to traffic congestion on the roads and chaotic conditions created due to illegal and unauthorized constructions. This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasized that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme and no relief should be given to the violator of the town planning scheme etc. on the ground that he has spent substantial amount on construction of the buildings etc. - K.Ramdas Shenoy vs. Chief Officers, Town Municipal Council Udipi, 1974 (2) SCC 506,Dr.G.N.Khajuria v. Delhi Development Authority, 1995 (5) SCC 762, M.I.Builders Pvt. Ltd. v. Radhey Shyam Sahu, 1999 (6) SCC 464, Friends Colony Development Committee v. State of Orissa, 2004 (8) SCC 733, M.C.Mehta v. Union of India, 2006 (3) SCC 399 and S.N.Chandrasekhar v. State of Karnataka, 2006 (3) SCC 208."
11. In the light of the above and in the absence of any legal challenge to the impugned Government Order, all the Writ Petitions will stand dismissed. Consequently, connected Miscellaneous Petitions are closed. No costs.
mra To:
1. The Secretary, School Education Department, Fort St. George, Chennai - 600 009.
2. Director of School Education, Chennai - 600 006.
3. The Chief Educational Officer, Thiruvallur District, Thiruvallur.
4. The Chief Educational Officer, Kanchipuram District, Kanchipuram