Madras High Court
N. Vijayakumar vs The High Court Of Judicature At Madras, ... on 11 February, 1999
Equivalent citations: (1999)3MLJ98
ORDER S.S. Subramani, J.
1. The High Court of Judicature at Madras, first respondent in both these writ petitions, invited applications for filling up the post of Librarian. Third respondent herein was appointed. The same is challenged by petitioner in W.P. No. 12574 of 1991.
2. Before coming to discuss these writ petitions, certain facts require narration.
3. The Government of Tamil Nadu, as per G.O.Ms. No. 1912 (Home), dated 1.9.1988, sanctioned the employment of a Librarian for a period of one year from the date of employment or till the need ceases, whichever is earlier. For one temporary post of Librarian and two Technical Assistant for the Library of High Court, Madras, applications were invited, and it was found that there were 23 applicants for the post of Librarian. Dr. David Annoussami, J. a learned Judge of this Court, was requested to conduct an interview to select a suitable candidate. The interview could not be conducted since the learned Judge was appointed as Vice Chairman-of Central Administrative Tribunal, Madras Bench. Therefore, S. Ramalingam, J. was requested to conduct the interview. When the file was perused, S. Ramalingam, J. found that the qualification mentioned in the advertisement was not inconformity with the orders of the then Hon'ble The Officiating Chief Justice (Hon'ble S. Mohan, J.) and suggested for fresh advertisement calling for applications for the post of Librarian. By that time, the period mentioned in the Notification was about to be over. Since the post was revalidated twice after the original sanction and since it was felt that the post should not be allowed to lapse, the then officiating Chief Justice appointed the third respondent, one of the applicants temporarily under Rules 15(a) and 15(c) of the Madras High Court Service Rules, pending regular appointment to be made to the post. Fresh advertisement inviting application for the post of Librarian was made as per the suggestion of S.Ramalingam, J. The appointment of third respondent was questioned by the present petitioner in W.P. No.8506 of 1989 to wherein he wanted the quashing of the appointment of third respondent, and prayed that he may be appointed in that post. A learned single Judge of this Court dismissed that writ petition with an observation that it is open to the petitioner to apply pursuant to the advertisement dated 30.8.1989. Against that order, petitioner herein filed Writ Appeal No.690 of 1989. Pending Appeal, the appointment of third respondent made temporarily also got lapsed from 8.9.1989. Writ Appeal No.690 of 1989 came up for hearing before a Division Bench of this Court. Before the Bench, the question was regarding the validity of the temporary appointment of third respondent, and finally; Their Lordships said that 'when Rule 15(a) of the Rules had been invoked under the circumstances, as between an outsider (i.e. Tmt. M. Santhanam) and one already in service (Thiru.N.Vijayakumar) and when both the them not being fully qualified as advertised on 28.1.1989 and even as per executive order dated 4.1.1989, third respondent (Tmt. M. Santhanam) could not have been preferred to that of the appellant (Thiru. N.Vijayakumar), she having ceased to hold office on 9.9.1989, and now that a fresh advertisement having been made on 30.8.1989, calling for applications, it is now for the Registry to seek for extention of time from Government and complete the process of selection and appointment for the post of Librarian expeditiously from and out of the applications received pursuant to the advertisement dated 30.8.1989. The applications received based on advertisements dated 28.1.1989 and 30.1.1989 cannot be considered at all. With these directions, this writ appeal is allowed. No costs.
[Italics added]
4. Writ Petition No.3394 of 1991 was filed by the petitioner for issuance of writ of mandamus, directing the respondents therein to comply with the direction in Writ Appeal No.690 of 1989 dated 15.12.1989, to complete the process of selection and appointment for the post of Librarian in the High Court of Judicature at Madras from and out of the applications received pursuant to the advertisement dated 30.8.1989 within a reasonable time as may be fixed by this Court, and pass such further or other orders.
5. A learned Judge of this Court, by order dated 18.11.1991, dismissed the writ petition holding that the petitioner has filed another writ petition, viz., W.P. No. 12574 of 1991, questioning the appointment of third respondent and, therefore, nothing survive for consideration in W.P. No. 3394 of 1991.
6. The order dated 18.11.1991 was challenged again by petitioner, in Writ Appeal No.741 of 1992, wherein, their Lordships said that this writ petition (Writ Petition No.3394 of 1991) also must be heard along with Writ Petition No. 12574 of 1991.
7. In fact, as on date, nothing survives for consideration in Writ Petition No.3394 of 1991, since selection has been complete and third respondent has been appointed, which is challenged in the other writ petition. At that time of arguments also, learned Counsel for petitioner argued only Writ Petition No.12574 of 1991, even though facts in the earlier writ petition were also submitted. Learned Counsel also submitted that nothing survives for consideration in Writ Petition No.3394 of 1991.
8. I have already extracted the concluding portion of the judgment in Writ Appeal No.690 of 1989 wherein their Lordships have directed that the appointment may be made pursuant to the advertisement dated 30.8.1989, and there was also a further direction not to consider the applications received on the basis of earlier advertisements, relevant portion of the Notification reads thus:
HIGH COURT MADRAS Applications are invited by the Registrar, High Court, Madras, in the scale of pay of Rs. 1575-90-1845-100-2245-110-2685. Persons possessing a basic degree and a degree in Library Science may apply. Preference however will be given to the candidates with law qualifications and previous experience. Upper age limit for candidates belonging to open competition is 30 years; while, for candidates belonging to Backward Community, Scheduled Caste and Scheduled Tribes, the age limit is 35 years as on 1.7.1989. Relaxation in age will be given for candidates with previous experience. Selection of suitable candidates will be on the basis of interview. Candidates will have to appear for an interview at Madras at their own cost.
9. Qualification, age and other details of the petitioner are given in paragraph 4 of the affidavit. He has passed M.A. (History). He is a Graduate in Law. He passed Bachelor Degree in Library and Information Science (B.L.I.S. in 1987. In 1991 he completed the Course of Master in Library and Information Science (M.L.I.S) and wrote his final examinations, and was awaiting results. It is therefore, clear that as on the date of Notification, he was not having M.L.I.S. qualification. So far as the qualification of third respondent is concerned, she is a Post-Graduate in English Literature. She has passed the Certificate Course Library and Information Science, B.L.I.S. and M.L.I.S. and she also possesses B.Ed. degree. Both the petitioner and third respondent belong to Backward Community and, therefore, to them the age limit is 35 years. As per the Notification (extracted above), the age limit was fixed as 35 years as on 1.7.1989. On that date third respondent has crossed 35 years, by 2 months and 7 days. But, it is further provided in the Notification that relaxation of age will be given for, candidates with previous experience. It is also said that selection of suitable candidate will be on the basis of interview. Pursuant to this Notification, first respondent received about 110 applications. Third respondent was appointed to that post. The order of appointment was given to the third respondent on 8.5.1991. It is that order of appointment which is challenged in Writ Petition No.12574 of 1991. According to the petitioner, selection of third respondent is arbitrary and that the same has been made ignoring the comments made by the Division Bench in the earlier case. It is also submitted that relaxation of age has been given only to third respondent, which should have been taken into consideration in the case of petitioner also. It is said that the petitioner is having two extra qualifications, and, being a Law Graduate and also being an in service candidate, he ought to have been preferred to third respondent, especially when the appointment was made temporarily. It is said that the petitioner has been discriminated since he preferred writ appeals challenging orders passed on writ petitions. It was further submitted that the first respondent has relaxed the qualification of Degree in Law only with an oblique motive, with a view to accommodate the third-respondent and eliminate the petitioner from being selected to the post of Librarian. It is said that the revision of qualification for the post of Librarian in the subsequent advertisement is deliberate and is fraught with mala fides.
10. In the detailed counter filed by 1st respondent, it is said that the original advertisement in 'The Hindu' does not really reflect the qualifications fixed by the then Officiating Chief Justice and, therefore, a suggestion was made by the learned Judge who was requested to conduct the interview, that the advertisement inviting applications may be re-notified. It was consequent to the said suggestion, a notification was made on 30.8.1989, fixing the present qualifications. It is also stated in the counter that the petitioner was also interviewed by the learned Judge who has remarked that the petitioner is unsuitable to the post. Regarding the relaxation of age, the benefit could be given only to the successful candidate, who has got experience. So, far as petitioner is concerned, he was not experienced, though he was working in the High Court. But, so far as third respondent is concerned, she was having nearly eight years experience on the date of Notification, apart from the fact that she was Post-Graduate in English Literature, Post-Graduate in Library Science and also possessed B.Ed. Degree Qualification. A mistake committed in the advertisement has now been made use of by petitioner to plead a case of mala fides. Petitioner who is only an assistant cannot claim any preference and cannot claim that he has got more experience as Librarian than the third respondent. The selection was made only on the basis of merits. It is also said that the third respondent has been functioning as Librarian from 14.5.1991 onwards, and the writ petition is not maintainable. It is also submitted that the writ petition (W.P. No. 3394 of 1991) has now become infructuous.
11. Third respondent has also filed a separate counter wherein she has said that she has got more merit than petitioner, and only taking into consideration her merit, the appointment was made. Petitioner is not fully qualified for being selected. It is also said that the Selection Committee had valid reasons for not appointing the petitioner, and he cannot compare himself either in educational qualifications or in his performance at the time of interview with the third respondent. It is only because she is possessed of high academic qualifications and experience, and she had also exhibited her talants during interview, she was selected. In paragraph 6 of her counter, she has given the details of her merits, and the medals that she has secured. It is also stated in her counter that she has got eight years of experience as Librarian.
12. Third respondent filed an additional counter affidavit on 16.4.1996, giving details of her qualifications and also about her experience. It is also stated in paragraph 2 of the additional counter affidavit that she submitted her application for the post of Librarian on 6.9.1989 and submitted additional particulars on 11.9.1989. As per the said particulars, she has got nearly more than eight years experience as Librarian. She was working in Seethalakshmi Achi-College for Women, Pallathur from 1.9.1980 to 11.4.1981 (i.e., for 7 months and 10 days), in State Resourse Centre, Madras, from 3.7.1982 to 31.3.1985 (i.e. 2 years and 9 months), in Tamil Nadu Board of Continuing Education, Madras, from 1.4.1985 to 7.6.1989 (i.e. for 4 years and 8 months) and in the High Court, Madras from 8:6.1989 to 8.9.1989 (i.e. 3 months). Along with the additional counter-affidavit, she has also filed a certificate issued by the Director of State Resource Centre for Non-formal Adult and Continuing Education. The reason for filing such a certificate is only to explain her work in the said Resource Centre. The Professor and Head of Department of Library and Information Science, University of Madras has also certified about the work of the third respondent in the State Resource Centre for Non-formal Adult & Continuing Education. Both these Certificates are intended only to show that though the designation is different, the duties are those of a Library.
13. A reply affidavit has been filed by petitioner, stating that she (3rd respondent) has got experience as a full time librarian only for a period of 7 months and 10 days in Seethalakshmi Achi College for Women, Pallathur. According to petitioner, the period she claimed to have worked as Documentation Officer from 3.7.1982 to 7.6.1989 cannot be treated as equal to experience as full time Librarian. It is also said that for considering experience, three years period is declared and lessor periods of experience are to be ignored.
14. Heard learned Counsel on both sides in detail.
15. The only point that requires consideration is, whether the selection of third respondent is liable to be interfered with for all or any of the reasons mentioned in the writ petition.
16. Regarding the allegation of malafides I do not find any merit in the contention. Except vague allegations, I do not think any particulars have been given. It is pertinent to point out that the very same allegations were made by petitioner in the- earlier writ petition (i.e., W.P. No. 8506 of 1989) also, and while disposing of Writ Appeal No.690 of 1989, in paragraph 20, the Bench has said that the allegation of mala fide being vague, it does not call for any deeper consideration.
17. The further question to be considered is, whether the selection of third respondent is in any way improper. I have already extracted the qualifications possessed by petitioner and third respondent, and qualifications required for the post under Article 229 of the Constitution of India, exclusive power is conferred on the Chief Justice not only in the matter of appointment, but also in prescribing the conditions of service, and the services shall be covered by the High Court Rules. This is subject to any law of State Legislature but only in respect of conditions of service. The powers conferred on the Chief Justice under Clause (1) of Article 229 cannot be abridged or modified in the matter of appointment. In the decision reported in M. Gurumoorthy v. The Accountant General, Assam and Nagaland and Ors. in paragraph 8, their Lordships have said thus:
The unequivocal purpose and obvious intention of the farmers of the Constitution in enacting Article 229 is that in the matter of appointments of officers and servants of a High Court, it is the Chief Justice or his nominee who is to be the Supreme authority and there can be no interference by the executive except to the limited extent that is provided in the Article ....
18. Qualifications have been fixed by the High Court, and while disposing of Writ Appeal No.690 of 1989, the direction was to complete the process of recruitment as per the advertisement dated 30.8.1989. It is not the case of petitioner that the third respondent is not having the basic qualification. Third respondent is having the basic degree. In fact, she has got M.A. Degree in English Literature as well as Master's Degree in Library Science and better qualified. We are concerned only with the preference, as to who should be preferred. In the Notification, it is said that preference will be given to candidates with law qualification and previous experience. It is also said that relaxation will be given to candidate who has previous experience. In this case, petitioner has got Law Degree, but he has no previous experience. Third respondent has previous experience, but she has no Law Degree. In this connection, it may also be noted that the third respondent is having Post-Graduate Degree in Library Science, as on the date when applications are invited. Petitioner was not having Post-Graduate Degree in Library Science on that date is clear from the averments made in the writ petition. Regarding preference in qualification, in Secretary (Health) Department of Health & Family Welfare and Anr. v. Dr. Anita Puri and Ors. . Their Lordships have held that preferential qualification by itself does not come as of right-to a selection. In paragraph 7 of the judgment, their Lordships have considered this question and held thus:
Admittedly, in the advertisement which was published calling for applications from the candidates for the posts of Dental Officer it was clearly stipulated that the minimum qualification for the post is B.D.S. It was also stipulated that preference should be given for higher educational qualification. There is also no dispute that M.D.S. is a higher qualification than the minimum qualification required for the post and Respondent 1 was having that degree. The question then arises is whether a person holding an M.D.S. qualification is entitled to be selected and appointed as of right by virtue of the aforesaid advertisement conferring preference for higher qualification? The answer to the aforesaid question must be in the negative. When an advertisement stipulates a particular qualification as the minimum qualification for the post and further stipulates that preference should be given for higher qualification, the only meaning it conveys is that some additional weightage has to be given to the higher qualified candidates. But by no stretch of imagination it can be construed to mean that higher qualified person automatically is entitled to be selected and appointed. In adjudging the suitability of person for the post the expert body like Public Service Commission in the absence of any statutory criteria has the discretion of evolving its mode of evaluation of merit and selection of the candidate. The competence and merit of a candidate is adjudged not on the basis of the qualification he possesses but also taking into account the other necessary factors like career of the candidate throughout his educational curriculum; experience in any field in which the selection is going to be held, his general aptitude for the job to be ascertained in course of interview, extracurricular activities like sports and other allied subjects, personality of the candidate as assessed in the interview and all other germane factors which the expert body evolves for assessing the suitability of the candidate for the post for which the selection is going to be held. In this view of the matter, the High Court in our considered opinion was wholly in error in holding that a M.D.S. qualified person like respondent 1 was entitled to be selected and appointed when the Government indicated in the advertisement that higher qualified person would get some preference. The said conclusion of the High Court, therefore, is wholly unsustainable and must be reversed.
[Italics supplied]
19. It is well-settled that the qualification as on the date of application alone has to be considered. But the petitioner wanted the qualification acquired by him in the Master's Degree in Library Science which he obtained in 1991, should be considered. He claimed that he will obtain if in the year 1991. If subsequent qualification can be considered, third respondent has obtained two additional degrees, i.e., B.G.L., in 1993 and B.L. in 1994. While narrating the facts, we have said that the learned Judge who interviewed the petitioner, has remarked about the petitioner, that he is not qualified for the post of Librarian. The learned judge has remarked thus:
N. Vijayakumar (petitioner) looks smart but lacks in general knowledge. He was not quick in his answers and was straining to give answers even to every simple questions. He was not very impressive.
It is not the case of petitioner that these remarks about him were made by the Judge with any mala fide intention.
20. From the additional counter-affidavit filed by third respondent, it is clear that she has passed in Library Science and has secured Post-Gradu-ate Degree. She has also experience in maintaining big libraries. From the Certificate dated 8.4.1996, it is clear that the third respondent has worked as the Head of a full-fledged Library and Documentation Unit, established in the State Resource Centre for Non-formal Education under the Tamil Nadu Board of Continuing Education. She has worked in that Centre with the designation 'Documentation Officer and Programme Associate for Training and Documensation' between 3.7.1982 and 7.6.1989. As the Head of the Library and Documentation Unit, the duties and responsibilities that were discharged by third respondent are also mentioned in that certificate. They are: (1) Management and control of entire Library and Subordinate Staff as its Chief Librarian: (2) Charging and Discharging (Lending Service); (3) Classification of Books and Documents; (4) Cataloguing (5) Library Reference Service; (6) Acquisition of New Books, periodicals and journals; (7) Library consultation Service; (8) Inter Library Activities; (9) Supervision of Newspaper clipping service; (10) Supervision of Departmental exhibition of book relating to non-formal education; (11) reporting; and (12) Rendering assistance to Ph.D candidates from 14 Universities. Even though in the reply affidavit petitioner challenges that the designation 'Documentation Officer' is not equivalent to a Librarian, I do not think that the argument could be accepted taking into consideration the responsibilities that were being discharged by third respondent. In the other certificate issued by the other Head of the Department of the Madras University also, it is clearly said that in different organisations, different designations are given for the same post and in so far as third respondent is concerned, while she was working in the State Resource Centre for Non-Formal Adult and Continuing Education, the nature of her job and responsibilities were comparable to that of a Librarian. It is further said in that Certificate that in fact the duties and responsibilities of librarians, documentation officers/information scientists, etc. are all similar and often identical, and third respondent is having experience as Librarian. On perusing the qualifications of petitioner and third respondent, it is clear that third respondent was better qualified for the post of Librarian than the petitioner. So far as the petitioner is concerned, he was not found to be suitable for the post. The learned Judge who interviewed him, has remarked so. As per the Notification, selection is only on the basis of interview. The process of selection is not challenged. When an impression has been created that the petitioner is not upto the mark, his non-selection cannot be said as improper.
21. Regarding relaxation of age also, a comment was made. From the notification, it is clear that for experience persons, age relaxation also could be given. In this case, the post was sanctioned in the year 1984, and, for years together, appointment could not be made. It ended only in litigations. Only in 1991, third respondent could be appointed, and by that time, first respondent had to request for extention so that the sanction for the post may not lapse. The post of Librarian in the High Court is a covetous post and appointment to that post is a necessity is also a matter which is admitted. In these circumstances, when a suitable candidate was selected, the appointing authority thought of relaxing the age. In fact, the relaxation is only for 2 months and 10 days. On the date of application, petitioner has also completed 35 years age. The arguments that he must also be given the benefit of relaxation is not correct, for, such benefit could be given only to the selected candidate.
22. Even though learned Counsel for petitioner argued on the basis of previous judgments, I do not think that those judgments are relevant at present. All these litigations were regarding temporary appointment made under Rule 15 of the Madras High Court Service Rules. The present appointment is for a substantive vacancy. Though third respondent was appointed temporarily it is not an appointment made under Rule 15.
23. An argument was advanced on behalf of petitioner that the petitioner could have been preferred to the post, third respondent being a stranger to the post. This is put forward only on the basis of Division Bench judgment in Writ Appeal No.690 of 1989. Even though the petitioner is a staff of the High Court, if he is not qualified, he cannot be appointed.
24. It is open to the appointing authority to lay down the requisite qualifications for recruitment, and it is also open to that authority to lay down such principle that is conducive to the maintenance of proper discipline among his staff. If the appointing authority has laid down the requisite qualifications and also the requisite conditions for the appointment, it is also entitled to pick and choose from among the applicants, and in such circumstances, if it is found that third respondent is better suited than the petitioner, the selection cannot be held to be wrong, and consequently, no interference is called for by this Court, under Article 226 of the Constitution of India, for, the scope of Judicial Review on the assessment of qualification is very much limited.
25. At the time when the matter was argued, learned Counsel for petitioner filed a further affidavit bringing to the notice of this Court. Rule 6 of the Madras High Court Service Rules. It says that no person shall be eligible for appointment to the service by direct recruitment unless he satisfies the appointing authority that he is of sound health, active habits and free from any bodily defect or infirmity unfitting him for the service. The argument is that third respondent is physically handicapped and, therefore, unfit to hold that post.
26. It is really unfortunate that the petitioner has put forward such a contention when he could not be successful on the merits of the case and was not in a position to compete with the third respondent at the time of interview.
27. Probably the petitioner has forgotten a recent legislation, namely, The persons with disabilities (Equal Opportunities) Protection of Rights and Full Participation) Act, 1995. In a recent decision of the Honourable Supreme Court reported in Javed Abidi v. Union of India and Ors. A.I.R. 1999 S.C. W. 111, their Lordships have held that the Act was passed by the Parliament with an intention to provide for the following as apparent from the statements of Objects and Reasons:
(A) to spell out the responsibility of the State toward the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of person with disabilities;
(ii) to create barrier-free environment for persons with disabilities:
Their Lordships have given certain directions to the Indian Airlines to give concession to the petitioner in that case. In the case on hand, because of the bodily defect or infirmity, petitioner cannot say that the third respondent has become unfit to hold the post. In the counter affidavit, first respondent has said that for the last nine years, third respondent has been discharging her responsibilities as Librarian without any blemish. Therefore, in our opinion, the present contention of petitioner is one without any bona fides and that the same has been raised only with an intention to insult or harass the third respondent.
28. In this connection, I only want to point that in the Cabinet of United Kingdom, one of the Secretaries of State, Rt. Hon. David Blunkett, M.P., who is the Secretary of State for Education and Employment, is born blind. It is true that physically handicapped people are comparatively at a disadvantaged position in performance of physical actions, perhaps, needing other's help. But this can be overcome by right mental attitude. In one Article by C.S. Venkateswaran in the Magazine 'Ability' - October - December, 1996 Issue, at page 28, the learned Author has said thus:
Now, coming back to our original question regarding 'Physical Handicap' no doubt, such people are comparatively at a disadvantaged position in performance of physical actions, perhaps needing other's help too. Let us, on the other hand, consider a physically normal person who is all the time worried, agitated, easily provoked, jealous of others successes, prone to telling lies, irritable, etc. How can we even imagine leading such a life Most of us, if not fully, at different times, and in varying degrees encounter such people all through our lives. If we dare analyse our own actions in our day to day life, we will understand how each one of us is 'handicapped' in handling our inner personalities. We entertain negative thoughts such as selfishness, jealousy, greed, anger, hatred, etc., which instantly push us down to the dreadful condition of internal handicap.
It is needless to explain the said state of such people. In fact this handicap is never the same, since it depends on the mental attitude of the individual. The moment some negative thought is entertained, one is instantly driven to a miserable state. The more the negative thoughts, the more severe the handicap.
In the context of the above, I am sure, one could get the answer for our title question. And physical handicap can be supplemented early in the modern world, more so if such a person has the right mental attitude. But, alas! this requires enormous conscious efforts on the part of those who are prone to nurturning negativities in their mind which come in the way of leading a happy and peaceful life.
Hence we may conclude that while every one of us is mentally handicapped of course in varying degrees - physical handicap is perhaps very insignificant in comparison. A person with a positive attitude and determination, who is physically handicapped, is undoubtedly the one who treads the path of success in all his endeavours.
[Italics supplied] Even though they (physically handicapped persons) are broken in body, they are not broken in spirit. They only expect an encouragement, and nothing also.
29. Third respondent, in spite of her disability, could obtain gold medals, and, in spite of her handicap, she is far meritorious than the petitioner. In our opinion, petitioner should not have insulted the third respondent by filing such an affidavit, pointing out her physical disability.
30. Petitioner as well as third respondent attended the interview. Learned Judge who conducted the interview, has remarked that petitioner is not suitable for the post. When the remark made by learned Judge is not challenged, it follows that the petitioner cannot be appointed to the post. If that be so, we do not think that he can challenge the selection of third respondent. The writ petition is, therefore, not maintainable.
31. In the result, W.P. No. 3394 of 1991 is dismissed as infructuous. No costs. W.P. No. 12574 of 1991 is also dismissed. No costs, pending W.M.Ps. are also dismissed.