Madras High Court
Santhi vs Central Administrative Tribunal on 28 April, 2018
Author: S.Manikumar
Bench: S.Manikumar, M.Govindaraj
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.04.2018 CORAM THE HONOURABLE MR. JUSTICE S.MANIKUMAR AND THE HONOURABLE MR.JUSTICE M.GOVINDARAJ W.P.NO.38656 OF 2015 AND M.P.NO.1 OF 2015 1.Santhi 2.K.Kalpana 3.K.Kayalvizhi .. Petitioners VS. 1.Central Administrative Tribunal Chennai - 600 104. Rep. by its Registrar 2.The Union of India Rep. by Chief Secretary Government of Pondicherry Pondicherry. 3.The Director Directorate of School Education Education Department Pondicherry. 4.Thirupuram 5.Angayarkanni 6.D.Bathmavathi .. Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus, to call for the records of the first respondent in O.A.No.364 of 2014 dated 08.09.2015 dismissing the Original Application filed by the petitioners herein, quash the same and allow the Original Application of the petitioners, as prayed in O.A.No.364 of 2014 and further direct the third respondent to engage the petitioners as Lecturers, award costs. For Petitioner : Mr.V.Prakash Senior Counsel for M/s.Shubharanjani Ananth For Respondents : Mr.Syed Musthafa 2 and 3 O R D E R
(ORDER OF THE COURT WAS MADE BY M.GOVINDARAJ, J.) The writ petitioners are the candidates, who were not selected for engagement as Lecturers on hourly paid basis. The third respondent, due to imminent need, filled up the vacancies of Lecturers, on hourly paid basis for a period of one year or till the posts are filled up on regular basis. In this direction, the second respondent issued sanction engaging Lecturers on hourly paid basis through various Government Orders. In G.O.Rt.No.186, Chief Secretariat (Education) Department, dated 14.07.2003, sanction was accorded for engaging 59 Lecturers. In G.O.Ms.No.91, Chief Secretariat (Education) Department, dated 02.09.2004, for five persons. In G.O.Ms.No.105, Chief Secretariat (Education) Department, dated 08.10.2004, for 84 posts and in G.O.Ms.No.126, Chief Secretariat (Education) Department, dated 15.12.2004 for nine posts. Thus, a total of 157 Lecturers were sought to be engaged on hourly paid basis.
2. Initially, sanction was accorded for engagement of 59 Lecturers, in various disciplines, in Government Higher Secondary Schools at Karaikal, Pondicherry and Mahe Regions, on hourly paid basis, in G.O.Rt.No.186, Chief Secretariat (Education) Department, dated 14.07.2003, for the academic year 2003-2004, from the date of engagement to 30.04.2004 or till the posts are filled up on regular basis. The engagement of these Lecturers were considered purely on contingent basis and would not confer on the incumbent any right for regular appointment in future. The third respondent called for applications through an advertisement dated 24.07.2003. The select list was prepared on the basis of awarding 85% marks for the academic performance and 15% for employment seniority. Since appointments were upto 30.04.2004, list got exhausted. In view of the requirement in various disciplines, in many schools, sanction, as stated in the previous paragraph was accorded in various Government Orders, for the posts identified subsequently. An advertisement was given on 20.05.2005 calling for applications, for the said total 157 posts. The writ petitioners as well as respondents 4 to 6 have applied for the same.
3. The entire issue in so far as this writ petition revolves around the above advertisement dated 20.05.2005 calling for 157 candidates for engaging them as Lecturers on hourly paid basis.
4. According to the writ petitioners, they have applied pursuant to the notification issued by the third respondent on 20.05.2005 and call letters were issued to them, on various dates and certificate verification was also done on 28.12.2005. Pursuant to the certificate verification, it is contended that a select list was prepared and the petitioners were found meritorious and selected. Therefore, they should have been given appointment pursuant to the selection. Non-appointment is violative of doctrine of legitimate expectation.
5. The writ petitioners have challenged the inaction of the respondents in not providing information sought for under RTI Act, 2005, regarding the appointment order, after selection and though sought for a prayer direction to issue appointment orders to them in O.A.No.43 of 2011 before the Central Administrative Tribunal, Madras, restricted their prayer for disposal of representation. The Tribunal passed orders on 06.08.2013, directing the official respondents therein to dispose of their representation within the time schedule. In compliance of the directions issued, the third respondent, setting out the reasons for non-selection of the petitioners, disposed of their representations on 17.10.2013. Against which, another Original Application in O.A.No.364 of 2014 was filed before the Central Administrative Tribunal, for setting aside the rejection of representation made by the third respondent dated 17.10.2013 along with the select list for the years 2005 and 2003, and consequently to direct the official respondents to issue appointment orders to the applicants / petitioners, which was ultimately dismissed. Dismissal of the above Original Application on 08.09.2015 is challenged in the present writ petition.
6. We have heard the submissions made on either side and perused the materials available before this Court.
7. From the perusal of the materials available before this Court, as detailed above, it could be seen that the entire issue revolved around the selection of hourly paid basis Lecturers, in Government Higher Secondary Schools, in the Union Territory of Pondicherry. Originally, a selection for engagement of Lecturers on hourly paid basis was made in the year 2003, pursuant to the notification issued on 24.07.2003. It is not in dispute that the said engagement was made in an emergent situation, for a specified period or till regular appointment is made. Therefore, it is very clear that there is a regular selection process, as per the recruitment rules, and the same was not adopted. The selection made was purely on the basis of academic marks and employment seniority, in the ratio of 85:15.
8.It is pertinent to note that Union Territory of Pondicherry consists of four regions, namely, Pondicherry, Karaikal, Mahe and Yanam. Out of these four regions, two are Tamil speaking regions and one Malayalam and another Telugu, speaking regions. Further, option was called for, from the applicants, indicating their preferences over the regions. Perusal of the Government Orders would also reveal the vacancy position in the respective regions, and even the schools, according to subject-wise discipline, was provided in the notification, to facilitate the candidates to exercise their options. It is pertinent to note that the candidates have to indicate their option, with regard to the region. Material on record would further show that, few candidates had indicated, two regions and few others one region. In so far as this writ petition is concerned, the contesting respondents, namely 4 to 6, have given option, for both Pondicherry and Karaikal, regions, whereas, the petitioners have given their option, only to Pondicherry region.
9. It is also to be noted that in 2003, a select list was made on the basis of merits, for the sanctioned and future requirement. After the completion of appointment of 59 hourly paid basis Lecturers, meritorious applicants, were waiting, for want of sanctioned vacancies. It is also to be noted that at that relevant point of time, the tenure was upto 30.04.2004, and when the period expired, Government of Pondicherry wanted to redo the exercise and issued notification dated 20.05.2005. There was also a subsequent development, where regular incumbents, who sought promotion, objected to the engagement of Lecturers, on hourly paid basis. Further, Lecturers already selected, in the above process had gained experience and that the Government wanted to use their expertise, and experience, by continuing their services. It appears that promotions were made, as requested by the regular incumbents, which reduced the requirement from 157 Lecturers, to a lesser number. In view of the decision taken by the Government of Pondicherry, to continue the engagement made in 2003, for a further period of one year, it was decided to call the meritorious applicants, selected in the year 2003. Therefore, to select three Lecturers for the subject Physics, one for Botany, and one for Home Science, the Director, Directorate of School Education, Education Department, Pondicherry, the third respondent has called, ten applicants for Physics, Botany subjects, and seven, for Home Science, from 2003 list, on merit basis. Third petitioner, namely, K.Kayalvizhi, was also one among them, along with respondent nos.4 to 6.
10. Accordingly, they were called for certificate verification on 28.09.2005 and thus respondent nos.4 to 6 were engaged on hourly paid basis on 30.09.2005 and 22.11.2005 respectively in the vacancies, in Karaikkal region, as per their option. Since the third petitioner opted Pondicherry regioin alone, she was not engaged.
11. Thereafter, on 28.12.2005, the third respondent, the Director, Directorate of School Education, Education Department, Pondicherry, has called the candidates, who had applied in 2005, for certificate verification. The petitioners have also appeared in the said verification, but the selection process was dropped and not proceeded further, on account of the subsequent developments, which according to the Government was unnecessary.
12. Mr.V.Prakash, learned Senior Counsel for the writ petitioners would contend that once a notification is issued, for a particular number of posts, the previous selection list automatically lapses, and any appointment, from the previous list, is illegal and violative of Articles 14 and 16 of the Constitution of India. He relied on a Full Bench judgment of the Hon'ble Supreme Court in STATE OF BIHAR AND ANOTHER VS. MADAM MOHAN SINGH AND OTHERS [1994 SUPP (3) SCC 308] which reads thus, "7...... As noted above, the temporary vacancies arose subsequently but even otherwise in the view we are taking namely that the particular advertisement and the consequent selection process were meant only to fill up 32 vacancies and not to fill up the other vacancies, the merit list prepared on the basis of the written test as well as the viva-voce will hold good only for the purpose of filling up those 32 vacancies and no further because the said process of selection for those 32 vacancies got exhausted and came to an end. If the same list has to be kept subsisting for the purpose of filling up other vacancies also that would naturally amount to deprivation of rights of other candidates who would have become eligible subsequent to the said advertisement and selection process."
He would also rely on the judgment reported in SURINDER SINGH AND OTHERS VS. STATE OF PUNJAB AND ANOTHER [AIR 1998 SC 18] wherein it is held as follows:
"15. It is in no uncertain words that this Court has held that it would be improper exercise of power to make appointments over and above those advertised. It is only in rare and exceptional circumstances and in emergent situation that this rule can be deviated from. It should be clearly spelled out as to under what policy such a decision has been taken. Exercise of such power has to be tested on the touch stone of reasonableness. Before any advertisement is issued, it would, therefore, be incumbent upon the authorities to take into account the existing vacancies and anticipated vacancies. It is not as a matter of course that the authority can fill up more posts than advertised.
16. Keeping the above principles in view, if we analyse the facts and circumstances of the present case, we find that no exceptional circumstance existed or there was any emergent situation for the State to deviate from the principle of limiting the number of appointments so advertised. In our view, the High Court was right in setting aside the appointments of teachers over and above those advertised. The State accepted the judgment of the High Court and did not come up in appeal in this Court. However, to get over the situation created because of the fact that more vacancies of teachers were noticed during the period of interview, it appointed can- didates more than the number of posts advertised on ad hoc basis and continued them as such till fresh process of selection was gone into. Admittedly, that process is on and in various writ petitions the High Court has been issuing directions from time to time extending the ad hoc appoint- ments and in the meanwhile to complete the process of fresh selection. As noticed above, selection of 10,000 more candidates for appointment to various categories of teachers has already been completed and selection process of about 22,000 more such teachers has either been completed by now or under completion. We do not think at this stage that we should interfere in the matter and set the clock back particularly when we find no ground to invalidate the impugned judgment of the High Court. In the present appeals, there is no appellant who can claim to fall within the first 2461 posts for which advertisement was issued."
But the Hon'ble Supreme Court in PREM SINGH AND OTHERS VS. HARYANA STATE ELECTRICITY BOARD AND OTHERS [1996 (II) LLJ 786] held as follows:
"25.From the above discussion of the case law it becomes clear that the selection process by way of requisition and advertisement can by started for clear vacancies and also for anticipated vacancies but not for future vacancies If the requisition and advertisement are for certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged the Court may not, while exercising its extra-ordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case. "
13. In the instant case, selection was not for filling up substantive vacancies, but on adhoc basis, for meeting an emergent situation, for the welfare of the students. Government of Pondicherry, had taken a conscious decision, to engage Lecturers only on hourly paid basis. In such a situation, as per the judicial pronouncements, this Court is duty bound to strike a balance between the interest of State, i.e., the Welfare of students and the interest of persons, seeking employment. On that score, we are of the view that the finding of the Tribunal cannot be faulted.
14. Judgment relied on by the petitioner in GUJARAT STATE DEPUTY EXECUTIVE ENGINEERS' ASSOCIATION VS. STATE OF GUJARAT AND OTHERS [1995 (I) LLJ 1047] is not applicable to the case on hand, as there is no question of considering future vacancies, and on the facts and circumstances of the case on hand, it is a case of engagement, in the existing vacancies.
15. The second limb of argument is that once the posts are identified, as hourly paid basis posts, in other words, adhoc posts, regular incumbents, cannot be promoted to adhoc posts. Said submission cannot be accepted. Existing incumbents can also be promoted on adhoc posts, and there is no prohibition in law.
16. Thirdly, it is the submission of the petitioners that when a candidate is selected on merits, he / she should not be unsuited for not exercising option for a particular region. Option is made to choose the available region and only after exhausting the avenue, the region, the next meritorious candidate should be given the opportunity.
17. In so far as the issue of operation of select list is concerned, admittedly, there existed a selection process, though not a regular selection, pursuant to the notification issued in the year 2003. But this selection was made with an intent to accommodate future engagements also, but on adhoc basis. But selection process, pursuant to the 2005 notification is concerned, it was abandoned, and that the process was stopped though there was certificate verification, select list was not prepared. It is categorically affirmed by the respondents that none of the applicants, pursuant to the notification issued on 20.05.2005, were considered and engaged in any of the posts. It is clear that Government of Pondicherry, for immediate need, to conduct classes for the students, at higher secondary level, engaged Lecturers, on hourly paid basis, bypassing the time consuming process, in regular selection.
18. The contentions, if approached with this background, then the contention of the learned Senior Counsel would lead us, to the following conclusion. When the process is not regular selection for substantive vacancies, but only a stopgap or adhoc arrangement, at the outset, the applicants do not have an indefeasible right or vested right to challenge their non selection. Hence, the judgment relied on by the petitioenrs is not applicable to the above adhoc engagements. Secondly, it is categorically affirmed by the official respondents that the selection pursuant to the notification dated 20.05.2005 was dropped at the stage of certificate verification, and no select list was prepared, and in such circumstances, there cannot be any direction for implementing a non-existing select list.
19. A perusal of the Government Orders would indicate that these engagements will be for a specified period or till the vacancies are filled up on regular basis, which means that these adhoc engagements are made, against regular vacancies. In such an event, the intervening promotion by the official respondents on the basis of the legitimate regular Teachers shall be construed as promotion against the vacancies. In other words, regular promotions were made as against regular vacancies and there is no illegality in making promotion to the regular posts from among the eligible candidates.
20. In so far as exercise of option for a particular region is concerned, choice is given to the incumbents to choose their region. The applicants are very much aware of the difficulties in view of the language and geographical barrier. From the fact that few applied for two regions, it could be inferred that there was no restriction for the applicants to choose one or more regions on the basis of their choice.
21. In the instant case, the contesting respondents have applied for Tamil speaking regions, namely, Pondicherry and Karaikal, wherein, the writ petitioners have opted only for Pondicherry Region. It is not that the third petitioner was singled out or not selected even after having found a place in the merit list 2003. The selection was for three Lecturers in Botany discipline. One post fell in Pondicherry region and two in Karaikal region. The third petitioner opted for Pondicherry region alone. But the meritorious candidate, who stood first, and scored more marks than the third petitioner was selected for Pondicherry region and other two posts were filled up in Karaikal region, to which the third petitioner has not applied for. In that event, persons who had opted for Karaikal region also, were given appointments. Unlike the commercial transactions, where a bidder quoted lesser price is called upon to improve the bid amount, to improve competitiveness, for the benefit of the institution on commercial basis, re-exercise of option cannot be adopted in service matters. The third petitioner having failed to exercise option, cannot turn around and blame the selectors. Therefore, the petitioners do not have any indefeasible legal right to challenge the process of engagement of Lecturers on hourly paid basis by the official respondents no malafide or illegality is substantiated in the selection.
22. In such circumstances, the writ petition merits no consideration and accordingly, dismissed. No costs. Consequently, connected miscellaneous petition is closed.
[S.M.K., J] [M.G.R., J]
28.04.2018
Index : Yes/No
Internet : Yes/No
TK
To
1.The Registrar
Central Administrative Tribunal
Chennai - 600 104.
2.The Chief Secretary
The Union of India
Government of Pondicherry
Pondicherry.
3.The Director
Directorate of School Education
Education Department
Pondicherry.
S.MANIKUMAR, J.
AND
M.GOVINDARAJ, J.
TK
W.P.NO.38656 OF 2015
28.04.2018