Madras High Court
Bharathidasan University vs The State Of Tamil Nadu on 24 March, 2015
Author: V.M.Velumani
Bench: V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24.03.2015 CORAM THE HONOURABLE MS.JUSTICE V.M.VELUMANI W.P.(MD)Nos.3846 of 2012 and M.P.(MD) No.1 of 2012 Bharathidasan University Backward Class and Most Backward Class Employees Association, (Regd.No.106/2011), Tiruchirappalli, Rep. by its Secretary, .. Petitioner Vs. 1.The State of Tamil Nadu, Rep. by its Secretary to Government, Higher Education Department, Fort St. George, Chennai - 9. 2.The Registrar, Bharathidasan University, Tiruchirappalli. 3.The District Employment Officer, District Employment Office, Tiruchirappalli. 4.N.S.Devi Habila 5.M.Faritha Begam 6.K.Shanthi 7.R.Rajeshwari 8.T.Balamurugumagesh 9.S.Mahalakshmi 10.M.Saravanan 11.N.Kumaravel 12.K.Chitradhanalakshmi 13.K.Gopikanna 14.A.Noor Mahammed Hussain 15.N.Thaiyammal 16.R.Venkatesh 17.G.Gowri 18.R.Vasanthakumar 19.K.Manimegalai .. Respondents (R5 to R9 impleaded as per order of this Court, dated 22.12.2014, made in M.P.(MD) No.1 of 2014) Writ Petition has been filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, forbearing the second respondent from in any way regularizing the services or absorbing the fourth respondent and other similarly appointed Junior Assistants/Drivers/Lab Assistant appointed temporarily on a consolidated pay without following the Clause IV of Service Conditions of Establishment of Bharathidasan University Statutes. !For Petitioner : Mr.M.Ajmalkhan Senior Counsel for M/s.Ajmal Associates ^For R1 & R3 : Mr.M.Murugan Government Advocate For R2 : Mr.V.R.Shanmuganathan Special Government Pleader For R4 & R6 to R19 : Mr.J.Anandkumar Date of reserving the order :10.02.2015 Date of pronouncing the order : .03.2015 :O R D E R
This Writ Petition has been filed by the petitioner to forbear the second respondent from in any way regularizing the services or absorbing the fourth respondent and other similarly appointed Junior Assistants/Drivers/Lab Assistant appointed temporarily on a consolidated pay without following Clause IV of the Service Conditions of Establishment of Bharathidasan University Statutes.
2. Facts of the case:
(i) The petitioner is an Association registered under the Tamil Nadu Societies Registration Act, 1975, for the welfare of non-teaching members of the Bharathidasan University [hereinafter referred to as "the University"].
(ii) The recruitment and other service conditions of the employees of the University are governed by "Service Conditions of the Establishment of Bharathidasan University Statutes" [hereinafter referred to as "the Statutes"] framed under Chapter IV of Statutes of the University.
Clause 4 of the Statutes provides for recruitment to various posts of Staff of the University. As per this Clause, direct recruitment to be made only by obtaining list of qualified candidates from the Employment Exchange as per the Government Orders in this regard. However, if eligible candidates are not available from the Employment Exchange, the University shall recruit through advertisement in the Press or through any other mode of recruitment as specified in the Statutes. The University may engage on contractual basis for a specific period any qualified person to any of the posts in the University.
(iii) The recruitment to the posts of Assistant, Junior Assistant, Driver, Library Assistant etc., can be made either by direct recruitment or by promotion or by selection from the lower category or from foreign service.
(iv) The direct recruitment can be made only from and out of a list of eligible persons, furnished by the Employment Exchange and if no eligible candidates are available from the Employment Exchange, the University can recruit by advertisement in newspapers. The University is empowered to engage on contractual basis for a specific period, if no qualified person to any of the posts in the University is available. Such person can be appointed only on consolidated pay for a specified period on contractual basis and such appointment can be made without following the procedure as contemplated under Clause 4 of the Statutes.
(v) The second respondent without recruiting the candidates through Employment Exchange as contemplated under Clause 4 of the Statutes, appointed the respondents 4 to 19 as Junior Assistants, by proceedings in A.Mu.Sa.No.P1/006336/11, dated 13.06.2011 on consolidated pay of Rs.7,500/- per month and posted them in various departments in the University.
(vi) The second respondent did not obtain the list of eligible candidates from the Employment Exchange before appointing the respondents 4 to 19 on consolidated pay. The second respondent confidentially called for the details of appointment pertaining to the respondents 4 to 19 for regularizing their services and making them permanent.
(vii) It has been a routine exercise by the second respondent to appoint the candidates of their choice without reference to the District Employment Office and regularize them on extraneous reasons, flouting and rendering the Rules governing the recruitment of Staff of the University as meaningless. The Hon'ble Apex Court in the case of Umadevi Vs. State of Karnataka reported in 2006 (4) SCC 1 held that the persons, who were appointed without following the procedure and entered through back door method, are to be driven out of employment.
(viii) The second respondent recruited the employees otherwise than the Rules governing the recruitment and regularized them on extraneous reasons, de hors the Rules governing such recruitment and caused financial crunch to the University. The petitioner being an Association formed for the welfare of University is interested in the effective and meaningful administration of the University.
(ix) On 20.05.2011, the petitioner gave a representation, i.e., at the time of recruitment of respondents 4 to 19 and gave another representation, dated 19.03.2012, requesting the second respondent to refrain from regularizing the service of the respondents 4 to 19, as the said regularization has no sanction under the Statutes.
(x) The second respondent failed to take note of the resolution of the Syndicate to regularize the services of the employees, who had completed ten years of service as per G.O.(Ms)No.22, Personnel Administration and Reforms Department, dated 28.02.2006. On the recommendation of Sub-Committee constituted by the University, 75 candidates working between 3 and 7 years were terminated, as they were not sponsored by the Employment Exchange and the same has been approved by the Syndicate of the University. The action of the second respondent regularizing the respondents 4 to 19 is in violation of Articles 14 and 16 of the Constitution of India.
3. The second respondent has filed counter affidavit denying various averments made by the petitioner. The second respondent has stated that the petitioner has no locus standi to file the writ petition. The petitioner is an Association representing the employees of particular community. They may be aggrieved, if the posts meant for them or their members are affected or filled up. On the other hand, in the instant case, the permanent vacancies meant to be filled up by direct recruitment were filled up by direct recruitment were filled up after following the procedure of Public Employment. The respondents 4 to 19 were recruited in the direct recruitment quota after following the communal roster and procedure. Hence, the members of the petitioner's Association are not affected and thus, the petitioner has no cause of action to file the present writ petition.
4. The petitioner being an Association of certain employees, is not entitled to interfere with the administration of the University more particularly, in the recruitment process.
5. The second respondent denied the allegation that the respondents 4 to 19 were appointed without seeking list from the Employment Exchange. By proceedings, dated 26.05.2010, a list of eligible candidates for the posts of Junior Assistant, D.T.P. Operator, Electrician, Plumber, Data Entry Operator etc., were called for from the third respondent and all the required particulars were furnished to the third respondent in a prescribed format. Totally, the names of 87 persons were sent for six categories by the third respondent on 14.07.2010 and for post of 15 Junior Assistants, a list of 51 candidates were sent containing all the categories for communal reservation. The interview was held on 15.11.2010 and 11 persons attended the interview for the post of Junior Assistant. The selection committee after interview, found only one candidate by name Thenmozhi as suitable for the post of Junior Assistant. The third respondent was informed accordingly.
6. Subsequently, again on 23.12.2010, another list of eligible candidates for all categories of posts including the post of Junior Assistant was called for from the third respondent. The third respondent sent the names of 88 candidates for all the posts including 51 candidates for the post of Junior Assistant. The interview held on 10.02.2011. Eight persons attended the interview for the post of Junior Assistant. The selection committee found one person alone was suitable. The third respondent was informed accordingly.
7. The candidates sent by the third respondent were not suitable for the posts. Not filling up the vacancies have caused grave prejudice. The Syndicate by Resolution No.2011.064, dated 17.02.2011, in its 197th Meeting decided to fill up the vacancies through an advertisement in dailies and after following the reservation norms fixed by the Government. Accordingly, an advertisement was issued in dailies on 19.02.2011 calling for applications from suitable candidates. 91 persons applied for the post of Junior Assistant. The interview was held on 30.05.2011. 60 persons had attended the interview and the selection committee selected only 16 persons.
8. All the 16 persons were appointed after following the communal roster and reservation prescribed and after calling for the list from the third respondent and after giving appropriate advertisement as per the Statutes and all the candidates were selected by the Selection Committee. The second respondent denied the allegation of the petitioner that the respondents 4 to 19 were appointed on extraneous consideration and their appointments were made by back door entry.
9. It is the convention of the University, to appoint employees on temporary basis in order to ascertain their ability and efficiency and thereafter, the second respondent can make them permanent subject to communal roster and if initial appointment was as per the Statutes. Therefore, the appointments of the respondents 4 to 19 have satisfied these conditions and the second respondent has right to make them permanent and prayed for dismissal of the writ petition.
10. The fourth respondent has filed counter affidavit denying all the allegations made by the petitioner. According to the fourth respondent, the petitioner has no locus standi to file the present writ petition. The second respondent has got every right to call for the candidates through newspaper advertisement. Respondents 4 to 19 were appointed as per the Statutes and Rules and Regulations and their appointments are not irregular or illegal. Initially, they were appointed on consolidated basis and after probation, they will be made permanent. The fourth respondent has stated that her appointment is proper and she is entitled to be absorbed or regularized by the second respondent on completion of her probation period.
11. The petitioner has filed reply affidavit stating that the second respondent must prove that the candidates sponsored by the Employment Exchange were not suitable. The second respondent can issue paper publication only after obtaining No Objection Certificate from the third respondent, when suitable candidates were not available. The second respondent without obtaining the list from the other Employment Exchanges, had straightaway published the Notification in Dinamalar newspaper. The second respondent has not stated that how many vacancies were going to be filled up following the communal roster. The petitioner has obtained information under the Right to Information Act that number of eligible candidates are available with the third respondent and other District Employment Exchanges. The Syndicate in its 196th meeting held on 24.01.2011, decided to retrench 75 employees including 10 Junior Assistants, who were appointed on consolidated pay/daily wage basis, and accordingly, their services were terminated with effect from 31.03.2011. Within 24 days from the date of earlier minutes of 196th Syndicate Meeting dated 24.01.2011, the second respondent passed another resolution in 197th Syndicate Meeting held on 17.02.2011 and approval was granted to fill up the existing vacancies including the post of Junior Assistants on daily wage basis/consolidated pay through advertisement in newspapers. The second respondent University is under investigation of the Directorate of Vigilance and Anti Corruption. Respondents 4 to 19 were called for investigation.
12. Mr.M.Ajmalkhan, learned Senior Counsel appearing for the petitioner, Mr.M.Murugan, learned Government Advocate appearing for the respondents 1 and 3, Mr.V.R.Shanmuganathan, learned Special Government Pleader appearing for the second respondent and Mr.J.Anandkumar, learned counsel appearing for the respondents 4 and 6 to 19 made elaborate arguments based on the averments in the affidavit, reply affidavit and counter affidavits.
13. I have perused the materials on record and considered the arguments of the learned counsels appearing for the parties.
14. The learned Senior Counsel appearing for the petitioner argued that the writ petition filed by the petitioner Association is maintainable as the petitioner has the right to protect the right of its members. The principles of locus standi and cause of action have undergone vast change and collective efforts by Association, is maintainable.
15. For this proposition, the learned Senior Counsel relied on the following Judgments:
(i) A.B.S.K. Sangh (Rly.) Vs. Union of India and Others [AIR 1981 SC 298], wherein in paragraph 63, it has been held as follows:
"63. A technical point is taken in the counter-affidavit that the 1st Petitioner is an unrecognised association and that, therefore, the petitioner to that extent, is not sustainable. It has to be overruled. Whether the petitioners belong to a recognised union or not, the fact remains that a large body of persons with a common grievance exists and they have approached this Court under Article 32. Our current processual jurisprudence is not of individualistic Anglo-Indian mould. It is broad-based and people-oriented, and envisions access to justice through ?class actions?, ?public interest litigation? and ?representative proceedings?. Indeed, little Indians in large numbers seeking remedies in courts through collective proceedings, instead of being driven to an expensive plurality of litigations, is an affirmation of participative justice in our democracy. We have no hesitation in holding that the narrow concept of ?cause of action? and ?person aggrieved? and individual litigation is becoming obsolescent in some jurisdictions. It must fairly be stated that the learned Attorney-General has taken no objection to a non- recognised association maintaining the writ petitions."
(ii) State Bank of Bikaner and Jaipur Vs. State Bank of Bikaner and Jaipur Employees [CDJ 1991 MHC 601 : 1993 (1) LLJ 57], wherein in paragraph 9, it has been held as follows:
"9. ..... Mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor De Smith states : "to be enforceable by mandamus a public duty does not necessarily have to be on imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract. (Judicial Review of Administrative Act 4th Ed. p.540). We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found'. Technicalities should not come in the way of granting that relief under Art. 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition."
(iii) Andhra Pradesh Scheduled Tribes Vs. Aditya Pratap Bhanj Dev and Others [2001 (6) ALD 582 : 2001 (6) ALT 433], wherein in paragraph 25, it has been held as follows:
"25. In WADHWA'S case (supra), fraud on the Constitution was alleged against State of Bihar in promulgating and repromulgating Ordinances. The Supreme Court observed that every citizen has a right to be governed by validly made laws and when fraud on the Constitution is committed every citizen can complain to a Constitutional Court. In view of this, it is futile to contend in a matter of this nature that a ST. Welfare Association has no locus standi to approach this Court. We should not lose sight of the constitutional scheme whereunder the role of protecting the citizens including SCs and STs from invasion of their rights is assigned to the Courts. Accordingly, we hold that the case involves public interest and the petitioner-association has locus standi to file this writ petition. Point No.1 is answered accordingly."
(iv) The Managing Director, Tamil Nadu Water Supply and Drainage Board and another Vs. Tamil Nadu Kudineer Vadikal Variya Oozhiyar Sangam [2010 (2) CWC 740 (DB)], wherein in paragraphs 3 and 5, it has been held as follows:
"3. The learned Counsel appearing for the Appellant has relied upon the decision in Tamilaga Asiriyar Koottani, represented by the General Secretary, V.Annamalai Vs. The Government of Tamil Nadu, represented by its Secretary, 2005 (3) MLJ 252. In the said decision, direction given to fill up the posts of headmasters in the upgraded schools from headmasters in Elementary Schools was challenged by the Association for teachers wherein the Hon'ble First Bench of this Court has held as follows:
"15. In our opinion, if any Educational Institution or headmasters or teacher is aggrieved by the impugned G.O.Ms.No.13, dated 9.2.2005, they can file a Writ Petition in this Court challenging the same, but the Appellant- Association had no locus standi in the matter. It cannot be said that the Educational Institutions or headmasters are so poor that they are unable to approach this Court. If any particular Educational Institution or headmaster has a grievance against the impugned G.O.Ms.No.13, dated 9.2.2005, it is for such person to file a Writ Petition or Writ Appeal, and not for any Association. The Writ Appeal is dismissed on the ground of lack of locus standi. The Writ Petition is dismissed for the same reason. W.A.M.P.No.1384 of 2005 is dismissed."
5. In such view of the matter, in our considered opinion, the order of the learned Single Judge cannot be sustained on the ground of maintainability of the Writ Petition by the association of the employees. It is no doubt true that as and when the individual employees are affected by any order passed, it is for them to work out their remedies in the manner known to law."
(v) Dr.D.C.Wadhwa and others Vs. State of Bihar and Others [AIR 1987 SC 579], wherein in paragraph 3, it has been held as follows:
"3. .... The rule of law constitutes the core of our Constitution and it is the essence of the rule of law that the exercise of the power by the State whether it be the Legislature or the Executive or any other authority should be within the constitutional limitations and if any practice is adopted by the Executive which is in flagrant and systematic violation of its constitutional limitations, Petitioner No.1 as a member of the public would have sufficient interest to challenge such practice by filing a writ petition and it would be the constitutional duty of this Court to entertain the writ petition and adjudicate upon the validity of such practice. We must therefore reject the preliminary contention raised on behalf of the respondents challenging the locus of the petitioners to maintain these writ petitions."
(vi) Tamil Nadu Co-operative Subordinate Officers' Association Vs. Government of Tamil Nadu and Others [2003 (3) CTC 193], wherein in paragraphs 11 and 12, it has been held as follows:
"11. With regard to the first objection, viz., the petitioner/association neither have locus standi nor any cause of action, it is trite law that technical flaw will not be allowed to defeat the cause the petitioner seeks to justify. Broader conception of locus standi and liberal approach to procedural technicalities has obtained the seal of the Apex Court long back, vide Mumbai Kamgar Sabha Vs. Abdulbhai Faizullabhai, AIR 1976 SC 1455. This Court is concerned only on the substance of the matter and not the formal defects. Procedural prescriptions are handmaids, not mistresses, of justice and failure of fair play is the spirit in which Courts must view processual deviances. Representative actions and the broadened forms of legal proceedings are in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to bypass the real issues on the merits by suspect reliance on peripheral, procedural shortcomings. Article 226 of the Constitution of India, viewed in wider perspective, may be amenable to ventilation of collective or common grievances, as distinguished from assertion of individual rights, although the traditional view, backed by precedents, has opted for the narrower alternative. Public interest is promoted by a spacious construction of locus standi in our socio-economic circumstances and conceptual latitudinarianism permits taking liberties with individualisation of the right to invoke the higher Courts where the remedy is shared by a considerable number, particularly, when they are weak. Less litigation, consistent with fair process, is the aim of adjectival law.
12. The learned Advocate General, of course, pointed out that the Government has not even furnished with the names of the members of the petitioner associations. In my considered opinion, in the matter of this nature, where the rights of numerous Government servants is alleged to have been prejudiced, it may not be proper for this Court to frustrate the claim of the Government Servants, merely on the ground of vagueness, assuming it exists, accepting the subversive technicality."
(vii) Umesh Chand Vinod Kumar and Others Vs. Krishi Utpadan Mandi Samiti, Bharthana and another [AIR 1984 ALLAHABAD 46], wherein in paragraphs 20 and 45, it has been held as follows:
"20. To summarise, the position appears to be that an association of persons, registered or unregistered, can file a petition under Article 226 for enforcement of the rights of its members as distinguished from the enforcement at its own rights--
(1) In case members of such an association are themselves unable to approach the court by reason of poverty, disability or socially or economically disadvantaged position "little Indians".
(2) In case of a public injury leading to public interest litigation provided the association has some concern deeper than that of a way-farer or a busybody i.e. it has a special interest in the subject-matter. (3) Where the rules or regulations of the association specifically authorise it to take legal proceedings on behalf of its members, so that any order passed by the court in such proceedings will be binding on the members.
45. Our answer to the referred questions is as follows:-
A.1- The position appears to be that an association of persons, registered or unregistered, can file a petition under Article 226 for enforcement of the rights of its members as distinguished from the enforcement of its own rights-
(1) In case members of such an association are themselves unable to approach the Court by reason of poverty, disability or socially or economically disadvantaged position ("little Indians"). (2) In case of a public injury leading to public interest litigation;
provided the association has some concern deeper than that of a way-farer or a busybody i.e., it has a special interest in the subject matter. ......."
(viii) West Bengal Head Masters' Association and another Vs. Union of India and Others [AIR 1983 CALCUTTA 448], wherein in paragraph 16, it has been held as follows:
"16.The second objection is directed against the locus standi of the appellants -- West Bengal Head Masters' Association and the West Bengal Guardians' Association. The appellant No. 1 is an Association registered under the Societies Registration Act. It is contended on behalf of the Board that these two Associations are not affected by the impugned revised syllabus, and that they cannot have any legal right. It is difficult to accept such a contention. Both these Associations are interested in the education of the boys and girls of the State and, if according to them, the syllabus has not been properly prepared they have, in our opinion, locus standi to file a writ petition. In our view, any person interested in education may come to the High Court complaining about any irregularity or illegality committed by a statutory body entrusted with the education of children and seeking relief against such irregularity or illegality. There is, therefore, no substance in the contention of the respondents and it is rejected."
16. Per contra, the learned Special Government Pleader appearing for the second respondent argued that the petitioner has no locus standi to maintain the writ petition. Even after enlargement of scope of locus standi, the issue raised by the petitioner does not enable the petitioner to file the writ petition. An Association has no right to maintain a writ petition in service matters.
17. In support of his submission, the learned Special Government Pleader relied on the following Judgments:
(i) Mahinder Kumar Gupta and Others Vs. Union of India [1995 (1) SCC 85], wherein in paragraph 6, it has been held as follows:
"6. Under these circumstances, we find no arbitrariness or unjustness in prescription of the guidelines for the eligibility criteria. The second writ petition stands liable to be dismissed on the sole ground that the Association cannot file a writ petition as it has no fundamental right under Article 32 of the Constitution. One of the petitioners/appellants has claimed as having partnership, but the details thereof have not been given. We, therefore, dismiss the appeal as well as the writ petitions with costs quantified at Rs.20,000 each."
(ii) Tamilaga Asiriyar Koottani Vs. The Government of Tamil Nadu and Others [2005 Writ L.R. 389], wherein in paragraph 15, it has been held as follows:
"15. In our opinion, if any Educational Institution or Headmaster or Teacher is aggrieved by the impugned G.O.Ms.No.13, dated 9.2.2005, they can file a Writ Petition in this Court challenging the same, but the Appellant- Association had no locus standi in the matter. It cannot be said that the Educational Institutions or Headmasters are so poor that they are unable to approach this Court. If any particular Educational Institution or Headmaster has a grievance against the impugned G.O.Ms.No.13, dated 9.2.2005, it is for such person to file a Writ Petition or Writ Appeal, and not for any Association. The Writ Appeal is dismissed on the ground of lack of locus standi. The Writ Petition is dismissed for the same reason. W.A.M.P.No.1384 of 2005 is dismissed."
(iii) Madras University Most Backward Class (MBC) Staff Welfare Association Vs. The Chancellor of Alagappa University and Others [W.P.(MD) No.11593 of 2012, dated 28.08.2012], wherein in paragraphs 2 and 3, it has been held as follows:
"2. In view of the law laid down by this Court in Tamil Nadu Public Works Department and Highway Employees Union Versus State of Tamil Nadu and Other [W.P.No.41633 of 2006, decided on 23.11.2011) the Writ Petition in service matter on behalf of association is not competent.
3. This order shall not prevent the members of the association to get their grievance addressed either by filing a joint or separate Writ Petition if so advised. Dismissed. No costs. Consequently, connected M.Ps. are closed."
18. A careful reading of all the above Judgments, makes it clear that an Association either registered or unregistered, can file a writ petition under Article 226 of the Constitution of India on behalf of its members taking the cause of its members only if,
(a) the members themselves are unable to approach the Court by reason of poverty, disability or socially or economically in a disadvantaged position, who are termed as "Little Indians"; and
(b) in case of public injury leading to public interest litigation provided the Association has some concern deeper than that of a way-farer or a busy body.
19. The petitioner has filed the present writ petition on behalf of its members. The members of petitioner Association are employees of the second respondent University. Therefore, they cannot be termed as poor, disabled or disadvantaged to approach this Court individually. The contentions of the learned counsel for the respondents that the members of the petitioner Association are not aggrieved persons; the respondents 4 to 19 were appointed in the quota meant for direct recruitment; the communal roster was followed; the respondents 4 to 9 were appointed following the Regulations and procedure laid down by the Statutes, the petitioner cannot maintain the present writ petition in service matter, have considerable force.
20. The three judgments relied on by the learned Special Government Pleader appearing for the second respondent are squarely applicable to the facts of the present case.
21. On merits, the learned Senior Counsel appearing for the petitioner contended that as per the Statutes governing service conditions of second respondent University, direct recruitment can be made by the second respondent only from and out of the candidates sponsored by the third respondent Employment Exchange. The second respondent did not follow Clause 4 of the Statutes, which lays down the procedure for direct recruitment.
22. It will be useful to extract Clause 4 of the Statutes for better understanding.
"Clause 4
1. Recruitment to the various posts shall be made by any one of the following methods:
Mode of Recruitment (1) by direct recruitment;
(2) by transfer;
(3) by promotion by selection from the lower category;
(4) on foreign service from Central or State Government or other Universities or from Public Sector Undertakings or from Local Bodies;
The method of recruitment for each category shall be made as detailed in the Appendix-I. Note: Direct recruitment should be made only by obtaining list of qualified candidates from the Employment Exchange as per Government Orders in this regard. However, if eligible candidates are not available from the Employment Exchange, the University shall recruit through advertisement in the Press or through any other mode of recruitment as specified in the Statutes."
23. The learned Senior Counsel further argued that as per the Statutes, a person can be appointed only on consolidated pay for a specific period and he cannot be absorbed or regularized. The respondents 4 to 19, having been appointed on consolidated pay, are not entitled to be regularised. Further, they have been appointed contrary to the Regulations and hence, their entry is through back door method. They have to be terminated.
24. In support of his submission, the learned Senior Counsel appearing for the petitioner relied on the following Judgments:
(i) Secretary, State of Karnataka and Others Vs. Umadevi (3) and Others [2006 (4) SCC 1], wherein in paragraphs 43 and 46, it has been held as follows:
"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as ?litigious employment? in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.
46. Learned Senior Counsel for some of the respondents argued that on the basis of the doctrine of legitimate expectation, the employees, especially of the Commercial Taxes Department, should be directed to be regularised since the decisions in Dharwad District PWD Literate Daily Wage Employees Assn. Vs. State of Karnataka [1990 (2) SCC 396], State of Haryana Vs. Piara Singh [1992 (4) SCC 118], Jacob M.Puthuparambil Vs. Kerala Water Authority [1991 (1) SCC 28] and Gujarat Agricultural University Vs. Rathod Labhu Bechar [2001 (3) SCC 574] and the like, have given rise to an expectation in them that their services would also be regularised. The doctrine can be invoked if the decisions of the administrative authority affect the person by depriving him of some benefit or advantage which either
(i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. [See Lord Diplock in Council for Civil Services Union v. Minister of Civil Service [1985 AC 374 : 1984 (3) All ER 935 : 1984 (3) WLR 1174 (HL)], National Buildings Construction Corpn. v. S. Raghunathan [1998 (7) SCC 66] and Chanchal Goyal (Dr.) v. State of Rajasthan [2003 (3) SCC 485]. There is no case that any assurance was given by the Government or the department concerned while making the appointment on daily wages that the status conferred on him will not be withdrawn until some rational reason comes into existence for withdrawing it. The very engagement was against the constitutional scheme. Though, the Commissioner of the Commercial Taxes Department sought to get the appointments made permanent, there is no case that at the time of appointment any promise was held out. No such promise could also have been held out in view of the circulars and directives issued by the Government after Dharwad decision [1990 (2) SCC 396]. Though, there is a case that the State had made regularisations in the past of similarly situated employees, the fact remains that such regularisations were done only pursuant to judicial directions, either of the Administrative Tribunal or of the High Court and in some cases by this Court. Moreover, the invocation of the doctrine of legitimate expectation cannot enable the employees to claim that they must be made permanent or they must be regularised in the service though they had not been selected in terms of the rules for appointment. The fact that in certain cases the court had directed regularisation of the employees involved in those cases cannot be made use of to found a claim based on legitimate expectation. The argument if accepted would also run counter to the constitutional mandate. The argument in that behalf has therefore to be rejected."
(ii) Renu and Others Vs. District & Sessions Judge, Tis Hazari and another [AIR 2014 SC 2175], wherein in paragraph 16, it has been held as follows:
"16. Another important recruitment of public appointment that of transparency. Therefore, the advertisement must specify the number of posts available for selection and recruitment. The qualifications and other eligibility criteria for such posts should be explicitly provided and the schedule of recruitment process should be published with certainly and clarity. The advertisement should also specify the rules under which the selection is to be made and in absence of the rules, the procedure under which the selection is likely to be undertaken. This is necessary to prevent arbitrariness and to avoid change of criteria of selection after the selection process is commenced, thereby unjustly benefitting someone at the cost of others."
(iii) State of Orissa and another Vs. Mamata Mohanty [2011 (4) MLJ 692 (SC)], wherein in paragraphs 18 and 19, it has been held as follows:
"18. 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, 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 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 Administration, Delhi and Others, AIR 1992 SC 789: (1992) 4 SCC 99 : 1992-II-LLJ-452; State of Haryana and Others v. Piara Singh and Others, AIR 1992 SC 2130 : (1992) 4 SCC 118 : 1993-II-LLJ- 937; Excise Superintendent, Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao and Others, (1996) 6 SCC 216 : 1997-I-LLJ-567; Arun Tewari and Others v. Zila Mansavi Shikshak Sangh and Others, AIR 1998 SC 1331 :
(1998) 2 SCC 332; Binod Kumar Gupta and Others v. Ram Ashray Mahoto and Others, AIR 2005 SC 2103 : (2005) 4 MLJ 209 : (2005) 3 MLJ 90; National Fertilizers Ltd. and Others v. Somvir Singh, AIR 2006 SC 2319 : (2006) 3 MLJ 90; Telecom District Manager and Others v. Keshab Deb, (2008) 8 SCC 402 :
2009-I-LLJ-733; State of Bihar v. Upendra Narayan Singh and Others, (2009) 5 SCC 65 : (2009) 5 MLJ 39; and State of Madhya Pradesh and Another v. Mohd. Ibrahim, (2009) 15 SCC 214).
19. 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 Notice Board 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 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."
25. Per contra, the learned counsel for the respondents argued that now various High Courts including this Court and the Hon'ble Apex Court have held that calling for applications from all eligible candidates from the list of Employment Exchange and affixing the notice in the Notice Board is not sufficient. Advertisement in the newspapers calling for applications has become mandatory.
26. In support of his submissions, the learned counsel for the respondents relied on the following Judgments:
(i) AIR 2014 SC 3752 [State of Bihar and others vs. Chandreshwar Pathak], wherein in paragraph 16, it has been held as follows:-
"16.Accordingly, it has to be held that in the absence of any advertisement or selection process, the appointment of the respondent is not protected and could be validly terminated. Learned Single Judge was justified in dismissing the writ petition while the Division Bench erred in interfering with the same."
(ii) S.Vimalraj and others Vs. The Additional Chief Secretary to Government, School Education (C2) Department, Secretariat, Fort St. George, Chennai and others [2015 (1) CTC 424], wherein in paragraph 16, it has been held as follows:
"16. Considering the said Judgments of the Supreme Court as well as this Court, we are of the view that the declaration sought for by the Appellants are deserved to be allowed and accordingly, the Writ Appeal is allowed insofar as the declaration prayer alone is concerned, namely, to declare Rule 10-A(a) of the Tamil Nadu State Subordinate Service Rules empowering the Government to get list only from the Employment Exchange for appointing persons in various posts [as ultra vires]. As directed in the Division Bench order dated 9.6.2014, the Respondents shall call for Applications through Advertisement as well as call for the list from Employment Exchange, if it is required to be called for, and make any selection in public employment for both temporary and permanent appointments. The Writ Appeal is disposed of accordingly. No costs."
(iii) State of Orissa and another Vs. Mamata Mohanty [2011 (4) MLJ 692 (SC)], wherein in paragraph 18, it has been held as follows:-
"18. 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, 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 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 Administration, Delhi and Others, AIR 1992 SC 789: (1992) 4 SCC 99 : 1992-II-LLJ-452; State of Haryana and Others v. Piara Singh and Others, AIR 1992 SC 2130 : (1992) 4 SCC 118 : 1993-II-LLJ- 937; Excise Superintendent, Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao and Others, (1996) 6 SCC 216 : 1997-I-LLJ-567; Arun Tewari and Others v. Zila Mansavi Shikshak Sangh and Others, AIR 1998 SC 1331 :
(1998) 2 SCC 332; Binod Kumar Gupta and Others v. Ram Ashray Mahoto and Others, AIR 2005 SC 2103 : (2005) 4 MLJ 209 : (2005) 3 MLJ 90; National Fertilizers Ltd. and Others v. Somvir Singh, AIR 2006 SC 2319 : (2006) 3 MLJ 90; Telecom District Manager and Others v. Keshab Deb, (2008) 8 SCC 402 :
2009-I-LLJ-733; State of Bihar v. Upendra Narayan Singh and Others, (2009) 5 SCC 65 : (2009) 5 MLJ 39; and State of Madhya Pradesh and Another v. Mohd. Ibrahim, (2009) 15 SCC 214)."
27. From these Judgments relied on by both the learned Senior Counsel appearing for the petitioner and the respondents, it is clear that the Courts considered and settled the issue that, apart from getting the list from the Employment Exchange, advertisement must be given in Newspapers. The Courts have held that at present, advertisement in the newspapers is a mandatory provision.
28. In the present case, the second respondent called for list from the Employment Exchange on two occasions and only one person was found to be suitable and she was appointed. Then only, the second respondent as per Resolution of the Syndicate, gave advertisement in the newspapers. After following the procedures and interview by the Expert Committee, the respondents 4 to 19 were appointed. The appointment of the respondents 4 to 19 were valid and legal. The contentions of the petitioner that the appointment of the respondents 4 to 19 is illegal is untenable. The ratio laid down in the case of Umadevi (supra) is not applicable to the case of the respondents 4 to 19.
29. The second respondent has stated that the respondents 4 to 19 were appointed on consolidated pay, put on probation to assess their ability and suitability of the respondents 4 to 19 to their respective posts. After being satisfied with the suitability of the respondents 4 to 19, steps are taken to absorb them and regularise their service. It is seen that the second respondent has appointed the respondents 4 to 19 as per the procedure laid down and is taking steps to regularise their service. There is no irregularity in the steps taken by the second respondent in appointing and regularising the respondents 4 to 19. Hence, the contention of the learned Senior Counsel appearing for the petitioner has no force and is untenable.
30. Finally, the learned Senior Counsel appearing for the petitioner contended that the selection/appointment of the respondents 4 to 19 only through interview is contrary to the Judgments reported in 2011 (6) SCC 605 (supra) and the order of this Court, dated 21.08.2014, made in W.P.(MD)No.15397 of 2012.
31. As per the Statutes of the second respondent, the method of selection and appointment of the second respondent is only through interview. No other procedure has been prescribed in the Statutes. Therefore, the contention of the learned Senior Counsel appearing for the petitioner is not acceptable.
32. The learned Senior Counsel appearing for the petitioner contended that it is usual practice of the second respondent to select and appoint persons for extraneous consideration. The complaint in this regard is being investigated and the respondents 4 to 19 were also enquired. In reply to this allegation, the learned Special Government Pleader appearing for the second respondent submitted that after investigation, report has been submitted to the effect that the charges levelled were not proved and further proceedings may be dropped. The Government by G.O.(1o)No.102, Higher Education (H2) Department, dated 11.06.2013, accepted the report and dropped further proceedings. From the Government Order referred to above, it is seen that the allegations of appointments being made on extraneous reasons were not proved and further proceedings were dropped. Therefore, this contention of the learned Senior Counsel has no force and is untenable.
33. For the above reasons, I hold that the present writ petition is not maintainable and the writ petition is liable to be dismissed.
34. In the result, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is dismissed.
Index : yes 24.03.2015 Internet : yes smn2 To 1.The Secretary to Government of Tamil Nadu, Higher Education Department, Fort St. George, Chennai - 9. 2.The Registrar, Bharathidasan University, Tiruchirappalli. 3.The District Employment Officer, District Employment Office, Tiruchirappalli. V.M.VELUMANI, J. smn2 Pre-delivery order made in W.P.(MD)No.3846 of 2012 and M.P.(MD) No.1 of 2012 24.03.2015