BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06/12/2007 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA W.P.No.5281 of 2007 (O.A.No.7408 of 1995) N.Pandikumar ... Petitioner Vs. 1.The State of Tamil Nadu, represented by The Secretary to Government, Rural Development Department, Fort St.George, Madras - 600 009. 2.The Director of Rural Development, Panagal Buildings, Saidapet, Madras - 600 015. 3.The Collector, Virudhunagar, Kamarajar District. 4.The Commissioner, Narikudi Panchayat Union, Narikudi, Kamarajar District. ... Respondents Prayer Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certriorarified Mandamus calling for the records of the respondents resulting in the third respondents impugned order No.Na.Ka.B3/3175/95-1 dated 22.09.1995 based on the first respondents impugned letter No.43090/E5/94-4 dated 14.06.1995 and order of the fourth respondents in his No.Na.Ka.A1/4485/94 dated 29.09.1995 quash the same and direct the respondents, (1) to reinstate the applicant in service forthwith, (2) to regularise the service of the applicant in Juinor Assistant with effect from eligible date and (3) to treat the period from 29.09.1995 to the date of reinstatement as duty with all attendant benefits and back wages. !For Petitioner ... Mr.V.R.Venkatesan ^For Respondents ... Mr.So.Paramasivam Special Govt. Pleader :ORDER
The petitioner filed Original Application in O.A.No.7408 of 1995 before
the Tamil Nadu Administrative Tribunal; consequent upon its abolition, the said
Original Application was transferred to this court and re-numbered as W.P.5281
of 2007, to call for the records of the respondents resulting in the third
respondents impugned order No.Na.Ka.B3/3175/95-1 dated 22.09.1995 based on the
first respondents impugned letter No.43090/E5/94-4 dated 14.06.1995 and order of
the fourth respondents in his No.Na.Ka.A1/4485/94 dated 29.09.1995 quash the
same and direct the respondents, (1) to reinstate the applicant in service
forthwith, (2) to regularise the service of the applicant in Juinor Assistant
with effect from eligible date and (3) to treat the period from 29.09.1995 to
the date of reinstatement as duty with all attendant benefits and back wages.
2. Heard both sides.
3. The nutshell facts which are absolutely necessary and germane for the
disposal of this writ petition would run thus:
The writ petitioner herein happened to be the son of deceased Dhanam
Natarajan who at the relevant time of her death worked as Assistant Teacher in
Panchayat Union Middle School, Thonugal,Kariapatty Union. At the time of her
death, her husband namely Natarajan was working as Head Master in one other
school. The writ petitioner being the son of the deceased Dhanam Natarajan
applied for job on compassionate ground disclosing the true facts. The copy of
the application, which is found enclosed at page Nos.44 to 46 of the typed set,
would demonstrate that at page No.2 of it, he set out the facts that his
father Natarajan at the time of his application dated 25.02.1991 for job had got
retired on 30.06.1990. After considering the facts, the authorities concerned
gave employment on compassionate grounds after obtaining approval from the
Collector concerned. Accordingly, the writ petitioner started working as Office
Assistant at Vembakottai Panchayat Union with effect from 03.08.1992. When for
confirmation, the papers were sent to the Director of Rural Developments vide
Lr.No.P3.4767/94 dated 11.07.1994, the Special Commissioner and Secretary to
Government, Rural Development Department, Secretariat, Madras-9, vide his
communication dated 14.06.1995 in Lr.No.43090/E5/94-4, directed thus:
“I am directed to invite attention to your letter cited and to state that
on verification of records, it is seen that the husband of the deceased
Tmt.Dhanam Natarajan was employed as a Headmaster even after the death of his
wife for about 14 years and has retired from service only on 30.06.1990. As
such, the appointment of Thiru.N.Pandikumar as Junior Assistant cannot be
classified as the one on compassionate grounds and is purely an irregular
appointment and also against the order of the Government under this scheme. I
am, therefore, to request you to terminate the service of Thiru.N.Pandikumar
forthwith and send a report to Government immediately.”
4. Thereupon, the District Collector, in commensurate with the aforesaid
direction of the Special Commissioner and Secretary to Government, Rural
Development Department, Secretariat, Madras-9, issued proceedings dated
22.09.1995 removing the writ petitioner from the service. Whereupon, the writ
petitioner herein filed O.A.No.7408 of 1995 before the Administrative Tribunal
and obtained stay and continues still in service.
5. No counter has been filed. However, the learned Additional Government
Pleader argued the matter.
6. The point for consideration is as to whether the appointment of the
writ petitioner was illegal and ab initio void for the reasons set out in the
communication dated 14.06.1995 in Lr.No.43090/E5/94-4 issued by the Special
Commissioner and Secretary to Government, Rural Development Department,
Secretariat, Madras-9?
7. The learned Counsel for the writ petitioner would submit that for no
fault on the part of the writ petitioner, he should not be made to suffer and
that as on date, he has completed seventeen years of service and it would be a
bitter experience for him if he is terminated from service abruptly.
8. The Additional Government Pleader placing reliance on G.O.Ms.No.155
dated 16.07.1993, would develop his argument that as on the date of the death of
the mother of the writ petitioner, the petitioner’s father was in active
Government service as Headmaster and in such a case, the petitioner was not
entitled to any employment under compassionate grounds and owing to some errors
committed by the lower officials, the writ petitioner was appointed.
9. The perusal of the representation/ application of the writ petitioner
seeking job under compassionate grounds would disclose all the relevant facts
including the one that his father got retired from service only on 30.06.1990.
Even though, there is no estoppel as against law and that if an appointment is
illegal one, it would be void ab initio, yet it has to be seen in this factual
matrix as to whether the writ petitioner committed any fraud. The answer is at
once clear that he never made any misrepresentation and thereby obtained such
appointment. Simply because, G.O.Ms.No.155 dated 16.07.1993 was not strictly
followed by the appointing authority concerned including the Collector, who is
indisputably and indubitably the District Head, the writ petitioner cannot be
made to suffer and that too after 17 years of service as of now. It is also the
case of the writ petitioner that after the death of his mother Dhanam, his
father Natarajan got remarried and that the writ petitioner was constrained to
live away from his father without any support.
10. However, the learned Additional Government Pleader would draw the
attention of this Court to the letter written by the father of the writ
petitioner to the effect that his son might be given job.
11. Be that as it may, at the time of seeking employment, his father might
have supported his cause.
12. Now, the core question arises as to whether this case falls within the
embargoes contemplated in the decision of the Honourable Apex Court in M.P.State
Coop.Bank Ltd. v. Nanuram Yadav reported in (2007) 8 Supreme Court Cases 264
wherein the Honourable Apex Court set out the following eight grounds as the
ones which would disentitle the petitioner from seeking any remedy before the
Court. An excerpt from it, would run thus:
“24. It is clear that in the matter of public appointments, the following
principles are to be followed:
(1) The appointments made without following the appropriate procedure
under the rules/government circulars and without advertisement or inviting
applications from the open market would amount to breach of Articles 14 and 16
of the Constitution of India.
(2) Regularisation cannot be a mode of appointment.
(3) An appointment made in violation of the mandatory provisions of the
statue and in particular, ignoring the minimum educational qualification and
other essential qualification would be wholly illegal. Such illegality cannot
be cured by taking recourse to regularisation.
(4) Those who come by back door should go through that door.
(5) No regularisation is permissible in exercise of the statutory power
conferred under Article 162 of the Constitution of India if the appointments
have been made in contravention of the statutory rules.
(6) The Court should not exercise its jurisdiction on misplaced sympathy.
(7) If the mischief played is so widespread and all pervasive, affecting
the result, so as to make it difficult to pick out the persons who have been
unlawfully benefited or wrongfully deprived of their selection, it will neither
be possible nor necesary to issue individual show-cause notice to each selectee.
The only way out would be to cancel the whole selection.
(8) When the entire selection is stinking, conceived in fraud and
delivered in deceit, individual innocence has no place and the entire selection
has to be set aside.”
13. A mere analysis of the facts on record would demonstrate that the case
at hand is not covered by any one of the eight embargoes contemplated in the
aforesaid decision of the Honourable Apex Court. While holding so, I do not lay
down the general proposition that any appointment made in violation of the said
G.O, should be followed by regularisation. But, in this case, the authorities
concerned including the Collector at one point of time, interpreted the G.O, in
such a manner and found that even though the writ petitioner’s father was in
Government servicer at the time of death of her mother and subsequently, he
retired, yet they felt that the case of the writ petitioner could be considered
without applying the embargoes as contained in G.O.Ms.No.155 dated 16.07.1993
and that he has been in service for seventeen years and in such a case, I am of
the considered opinion that it would be totally an act of injustice if the
petitioner is allowed to be terminated from service.
14. Hence, in this view of the matter, the writ petition is allowed with
the direction that he shall be retained in service as per service rules. No
costs.
rsb
To
1.The Secretary to Government,
Rural Development Department,
Fort St.George,
Madras – 600 009.
2.The Director of Rural Development,
Panagal Buildings,
Saidapet,
Madras – 600 015.
3.The Collector,
Virudhunagar,
Kamarajar District.
4.The Commissioner,
Narikudi Panchayat Union,
Narikudi, Kamarajar District.