Madras High Court
The Secretary To Govt. Of Tamil Nadu vs K.Anandi on 31 August, 2020
Author: Senthilkumar Ramamoorthy
Bench: A.P.Sahi, Senthilkumar Ramamoorthy
WA.Nos.669 and 668 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31.08.2020
CORAM :
The Hon'ble Mr.A.P.SAHI, THE CHIEF JUSTICE
AND
The Hon'ble Mr.JUSTICE SENTHILKUMAR RAMAMOORTHY
WA.Nos.669 and 668 of 2020
and C.M.P.Nos.9338 and 9333 of 2020
1.The Secretary to Govt. of Tamil Nadu,
Education Dept. (School), Fort St. George,
Chennai 600 009.
2.The Chairman,
Teachers Recruitment Board,
E.V.K.Sampath Maligai, IV Floor,
College Road, Chennai 600 006.
3.The Chief Educational Officer,
Panagal Building, Saidapet,
Chennai 600 015.
4.The Joint Director of School Education,
(Employees Appointment Section),
E.V.K.Sampath Maligai, College Road,
Chennai-6. .. Appellants
in both WAs.
-vs-
K.Anandi .. Respondent
in both WAs.
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WA.Nos.669 and 668 of 2020
Appeals under Clause 15 of the Letters Patent against the
common order dated 02.04.2002 passed in W.P.Nos.31660 of 2002
and 19352 of 2009 on the file of this Court.
For Appellants : Mr.C.Munusamy
Special Govt. Pleader (Edn.)
For Respondent : Mr.P.Rajendran
JUDGMENT
(Passed by The Hon'ble Chief Justice) The State has come up in these two appeals questioning the common judgment and order dated 02.04.2014 arising out of two writ petitions on the ground that the learned single Judge by shifting the date of appointment of the respondent writ petitioner to a date prior to the date of actual appointment has committed an error, as no such shifting is permissible and therefore, the consequential benefit extending her the continuance of the General Provident Fund scheme at par with those who had been appointed prior to 01.04.2003 is also erroneous. It is, therefore, submitted that the impugned judgment deserves to be set aside.
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2.On the other hand, Mr.P.Rajendran, learned counsel for the respondent writ petitioner, submits that there was a clear default on the part of the appellants in excluding the name of the answering respondent from the list of selected candidates, which selection took place in the year 2002 and therefore, a deliberate wrong on their part cannot put the answering respondent to any disadvantage so as to receive the same benefits as are being made available to those candidates who were selected and appointed in the same selection process, where the answering respondent had participated which were declared on 16.07.2002. It is, therefore, submitted that the ultimate conclusion of the learned single Judge does not suffer from any error and therefore, no interference is called for.
3.The background in which the aforesaid litigation has progressed is that the Teacher Recruitment Board issued Advertisement No.4/2002 for direct recruitment to the posts of School Assistants / Language Pandits in High / Higher Secondary Schools, coupled with posts of Block Resource Teachers under the Sarva Shiksha Abhiyan Programme. These posts are under the Tamil Nadu Page 3 of 18 http://www.judis.nic.in WA.Nos.669 and 668 of 2020 School Educational Subordinate Services. The respondent writ petitioner also applied against the said advertisement for which a written examination had to be held followed by a viva voce. Unfortunately, the answering respondent petitioner and a large number of other similarly situate candidates were not issued hall tickets for appearing in the examination, as a result whereof they appeared before the Board and registered their protest, whereafter they were provisionally issued hall tickets and they appeared in the examination on 21.04.2002. The respondent writ petitioner was allotted Roll No.8299020. The respondent petitioner had applied for both the posts of School Assistants as well as Block Resource Teachers under the Most Backward Category candidate seeking benefit of reservation. The results of the written examination were declared and the marks obtained by the answering respondent were 117 out of 150 marks, which was later on revised to 115 out of 148 marks. Under the Most Backward Category candidates, the highest score was 122 and the lowest was 111. In spite of the fact that the answering respondent had obtained 115 marks, she was not shown in the select list that was published with regard to Most Backward Category candidates. Page 4 of 18 http://www.judis.nic.in WA.Nos.669 and 668 of 2020
4.For this, it is necessary to reproduce paragraph 18 of the affidavit in W.P.No.31660 of 2002, which is extracted hereinunder:-
18.I beg to submit that the 2nd respondent selected Fourteen candidates under MBC (Women) category in History subject who obtained 115 marks and below 115 marks for the posts of block Resource Teachers, as per revised selection list dt.21.6/02 published by the 2nd respondent in their website and they are as follows:
Subject : MO8 History
Maximum Marks - 148.
S.No. Roster Point Roll No. Rank Marks Community
237 MW-12 MO8130052 463 115 MB
239 MW-13 MO8080331 484 115 MB
241 MW-14 MO8170115 488 115 MB
248 MW-15 MO8180046 526 114 MB
251 MW-16 MO8050157 589 114 MB
255 MW-17 MO8280366 592 114 MB
257 MW-18 MO8080280 629 113 MB
259 MW-19 MO8080425 640 113 MB
265 MW-20 MO8190069 690 113 MB
267 MW-21 MO8080741 705 112 MB
269 MW-22 MO8120228 720 112 MB
271 MW-23 MO8230485 726 112 MB
272 MW-24 MO8240054 792 112 MB
274 MW-25 MO8090364 819 111 MB
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WA.Nos.669 and 668 of 2020
Hence the no. of selected candidates for the post of Black Resource Teachers under MBC (Women) Category in MO8 History Subject over looking me are 14 as per the Revised list. The table hereunder will give clear picture.
Sl.No. Out of 148, marks obtained No. of selected by the selected candidates candidates
(a) 115 Three
(b) 114 Three
(c) 113 Three
(d) 112 Four
(e) 111 One But I was not selected even though I obtained 115 marks out of
148. the 2nd respondent failed and neglected to select me whereas the other candidates who obtained below 115 marks were selected which is again rules and principles of right to equality enshrined in Article 14 and 16 of Constitution of India.”
5.It is in this background of wrongful elimination that the respondent writ petitioner filed W.P.No.31660 of 2002 praying for a direction that she should be declared to be selected in the final selections that were declared on 16.07.2002 and should be issued a letter of appointment. It is noteworthy to mention that the respondent writ petitioner had also filed an Original Application before the Tamil Page 6 of 18 http://www.judis.nic.in WA.Nos.669 and 668 of 2020 Nadu Administrative Tribunal being O.A.No.4228 of 2002, where only notices were issued with no orders except calling for the records, that prompted the respondent writ petitioner to file the writ petition referred to hereinabove.
6.The learned single Judge, who entertained the writ petition, passed orders on 01.08.2002 directing the appellants to ascertain as to whether the petitioner had obtained 115 marks and if so, to call her for an interview. It was further directed that if she succeeds in the interview, she may be selected subject to further orders in the writ petition.
7.The Recruitment Board remained silent, as a result whereof the respondent writ petitioner issued a letter for initiating contempt proceedings. On this, a call letter was issued to the respondent writ petitioner asking her to produce the papers for verification vide call letter dated 05.02.2003. Her certification was carried out on 14.02.2003 and having succeeded in the interview, she was expecting her letter of appointment. When this did not happen, she filed Contempt Petition No.387 of 2003, where notices were issued on Page 7 of 18 http://www.judis.nic.in WA.Nos.669 and 668 of 2020 14.07.2003. In response to the said contempt notice, letter of appointment was issued on 05.08.2003.
8.The State Government came up with the Contributory Pension Scheme vide G.O. No.259, Finance (Pension) Department, dated 06.08.2003, which was to take effect from 01.04.2003. This is important as the appointment order of the respondent writ petitioner was issued in the above litigative background one day before the said notification of G.O.No.259.
9.However, the dispute in the present case is now confined as to whether the respondent writ petitioner is entitled to the benefits of the old General Provident Fund scheme or she will be covered by the Contributory Pension Scheme having been issued a letter of appointment on 05.08.2003.
10.At this juncture, we may point out that the request of the respondent writ petitioner to the said effect was rejected on 07.07.2008 by the Deputy Director, Tamil Nadu School Education, which came to be challenged by way of amendments in W.P.No.31660 Page 8 of 18 http://www.judis.nic.in WA.Nos.669 and 668 of 2020 of 2002, which amendment applications were allowed on 20.11.2008 by a learned single Judge of this Court. An order was passed by the learned single Judge on 23.01.2009 in this regard, which is extracted hereinunder:-
“The petitioner has sought for a mandamus directing the respondents to issue appointment order to her appointing from 16.07.2002 (instead of 5.8.2003), the date on which, the first batch of selected candidates were given appointment orders, pursuant to the examination written by the petitioner as on 21.4.2002, for direct recruitment for the above said posts. Pending disposal of the Writ Petition, the petitioner has sought for a direction to grant General Provident Fund.
2.The petitioner has submitted that if the respondents had issued an appointment order to the petitioner as early as on 16.7.2002, along with the batch of appointees or atleast after the date of completion of certificate verification dated 14.02.2003, she would have been made eligible for G.P.F. It is the contention of the petitioner that G.O.Ms.No.430 Finance (Pension) Department dated 6.8.2004 as well as G.O.Ms.No.259 Finance (Pension) Department dated 06.08.2003 are not applicable to the case of the petitioner.
3.It is submitted by the learned counsel for the respondents that the petitioner was appointed only on 8.8.2003 and therefore, the above said G.O. would be applicable to the petitioner. The entitlement of the petitioner for appointment retrospectively with Page 9 of 18 http://www.judis.nic.in WA.Nos.669 and 668 of 2020 effect from 16.7.2002 instead of 5.8.08 the date on which the first batch of selected candidates were given appointment orders pursuant to the examination written by the petitioner on 21.04.2002 for direct recruitment to the post of School Assistant/ Language Pandit and Block Resource Teacher is yet to be decided in the main Writ Petition.
4.However, perusal of the pleadings shows that though a direction was given by this court on 1.8.2002 and the certificate verification was done on 14.02.2003, appointment order was issued by the second respondent only on 05.8.2003, after final orders were passed by this court in the Contempt Petition No.387 of 2003 dated 14.7.2003. Taking note of the delay in issuing the orders of appointment for which the petitioner was no way responsible, the respondents are directed to consider the grant of General Provident Fund to the petitioner, in accordance with statutory provisions before 13.02.2009 and communicate the same to the petitioner.
Post this petition along with main Writ Petition on 13.02.2009.”
11.In response to the said order, the Joint Director, Tamil Nadu School Education, again rejected the request of the respondent writ petitioner vide order dated 08.07.2009 that is stated to have been signed on 22.07.2009 and became the subject matter of challenge in W.P.No.19352 of 2009. Both these writ petitions came to be heard Page 10 of 18 http://www.judis.nic.in WA.Nos.669 and 668 of 2020 together and have been allowed by the common judgment dated 02.04.2014.
12.The present appeals have been filed against the said common judgment, after registering a huge delay of 300 days, but nonetheless keeping in view the submissions advanced, we have condoned the delay and have entertained the writ appeals on merits.
13.As already stated above, so far as the selection and appointment of the respondent writ petitioner are concerned, the same are no longer under challenge and it is only the shifting of the date of appointment and consequential grant of benefits of the General Provident Fund scheme that are under challenge.
14.Sri.C.Munusamy, learned Special Government Pleader for the State has relied on the judgment in the case of V.Jeeva vs. State of Tamil Nadu, decided on 31.10.2011 (W.P.No.24045 of 2009), whereby a similar claim of a candidate appointed after 01.04.2003 was rejected and the same was upheld in W.A.No.856 of 2014 vide judgment dated 10.07.2014.Page 11 of 18
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15.There is no dispute on facts, particularly the fact with regard to the narrative of the manner in which the respondent writ petitioner came to be issued the letter of appointment on 05.08.2003. It was admitted before the learned single Judge by the State that her name, in spite of having obtained 115 marks, was left by oversight in the final select list that was published on 16.07.2002. In view of this admitted position of default on the part of the Recruitment Agency, the fact remains that the respondent writ petitioner was compelled to suffer a loss and then, receive her due only by way of a litigative pursuit and after a judicial intervention took place. In view of this admitted position, the question is as to whether the learned single Judge was justified in issuing the directions as contained in the impugned judgment.
16.Having weighed the facts as stated above, we are of the firm opinion that the respondent writ petitioner was deliberately made to suffer and pursue a litigation to achieve her original claim of selection and appointment which ought to have definitely crystallized prior to 01.04.2003. She had approached the High Court in 2002 itself and Page 12 of 18 http://www.judis.nic.in WA.Nos.669 and 668 of 2020 certification of her documents had been carried out on 14.02.2003. The ministerial act of issuance of letter of appointment was delayed, which came to be issued after a notice was issued in the Contempt Petition on 14.07.2003. The appointment order dated 05.08.2003 has been issued just one day before the notification of the Contributory Pension Scheme on 06.08.2003, which was made effective from 01.04.2003. In the background above, the respondent writ petitioner is nowhere to blame nor can she be deprived of her rightful claims, which had been wrongly denied to her by the appellants State and its Recruitment Agency, which is more than evident from the facts narrated above. In this background, the legal plea which has been raised that the respondent writ petitioner is covered under the Contributory Pension Scheme effective from 01.04.2003, as she was appointed on 05.08.2003 is on account of the default of the appellants and not on any fault on the part of the respondent writ petitioner. She can, therefore, not be penalised for the same.
17.However, on the other hand, learned counsel for the State has relied on the judgment in the case of V.Jeeva (supra). In that case, the appointment order had been issued, but the candidate was Page 13 of 18 http://www.judis.nic.in WA.Nos.669 and 668 of 2020 not posted prior to 01.04.2003. The posting orders were issued after 01.04.2003 and consequently, the learned single Judge came to the conclusion that no benefit could be extended and the Division Bench also affirmed the same.
18.The question, therefore, is that if the selection and appointment was ultimately found to have been delayed on account of the default of the selection process and gross negligence by erroneously eliminating the respondent writ petitioner, in spite of her having achieved the eligibility mark, can she be denied of consequential service benefits and made to compulsorily suffer on account of the cut-off date as prescribed under the Contributory Pension Scheme, which is 01.04.2003 ?
19.In our considered opinion, it will not be appropriate to interfere with the order of the learned single Judge in this extreme situation and on peculiar facts of this case except to the extent that the date of appointment of the respondent for the purpose of extending the General Provident Fund scheme benefits cannot travel to the date of selection dated 16.07.2002 as in the case of the other Page 14 of 18 http://www.judis.nic.in WA.Nos.669 and 668 of 2020 candidates. It is correct that the respondent writ petitioner was compelled to fight a litigation, but the fact remains that she was sent a call letter on 05.02.2003 for verification of her documents to finally accept her candidature, which admittedly took place on 14.02.2003.
20.An exercise of judicial discretion should not result in gross inequities or even constitutional inequalities. The respondent writ petitioner did belong to the same class of teachers and her selection is relatable to the same selections which were finalised in the year 2002. She was arbitrarily, for no valid reason, kept out of the selection process and for which, she had to avail the remedy of judicial review and it is only after the intervention of this Court that she succeeded in getting herself declared selected, as is evident from the facts already narrated hereinabove. Thus, the learned single Judge has not exercised discretion which can be said to be unfettered or based on whims and prejudices. It is an essential attribute of justice that similar cases should be dealt with similarly and the way to achieve it is to compare the similarity of the status of facts which forms the foundation of exercise of discretion. A mechanical approach in such matters may result in injustice. It is true that at times equity Page 15 of 18 http://www.judis.nic.in WA.Nos.669 and 668 of 2020 transgresses into the field of law, but it has to be applied and “must be applied with sensitivity and tact, so that the spirit of the law is not sacrificed unnecessarily to the letter. The evolution of a legal system is from strict and simple rules to looser, more flexible standards. The former are easier to create, articulate and enforce.” (Richard A.Posner, Law and Literature, III Edition, Chapter 3 – Antinomies of Legal Theory). Our attempt in this matter is to infuse equity and minimise injustice. This, in our opinion, does not manifest in either excessive liberality or crossing the boundaries between equity and law. A sense of proportionality tilts the scales of justice in favour of the respondent writ petitioner.
21.We, therefore, modify the impugned judgment to the effect that for the limited purpose of extending the benefit of General Provident Fund Scheme, the respondent writ petitioner will be treated to have entered the services on 14.02.2003, which was prior to 01.04.2003. The respondent writ petitioner will not be entitled to any other service benefits and this litigation and its outcome shall not be treated as a precedent for any other case.
Page 16 of 18 http://www.judis.nic.in WA.Nos.669 and 668 of 2020 The Writ Appeals are, accordingly, consigned to records with the said observations. No costs. Consequently, miscellaneous petition is closed.
(A.P.S., CJ.) (S.K.R., J.)
31.08.2020
Index: Yes
sra
To
1.The Secretary to Govt. of Tamil Nadu,
Education Dept. (School), Fort St. George, Chennai 600 009.
2.The Chairman, Teachers Recruitment Board, E.V.K.Sampath Maligai, IV Floor, College Road, Chennai 600 006.
3.The Chief Educational Officer, Panagal Building, Saidapet, Chennai 600 015.
4.The Joint Director of School Education, (Employees Appointment Section), E.V.K.Sampath Maligai, College Road, Chennai-6.
Page 17 of 18 http://www.judis.nic.in WA.Nos.669 and 668 of 2020 The Hon'ble Chief Justice and Senthilkumar Ramamoorthy, J.
(sra) WA.Nos.669 and 668 of 2020 31.08.2020 Page 18 of 18 http://www.judis.nic.in