IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 26.02.2010
CORAM
THE HONOURABLE MR. JUSTICE R. SUDHAKAR
W.P. No.39831 of 2006
S. Rathinam .. Petitioner
vs
1. The Chief Engineer,
(Highways & Rural Works)
Chennai
2. The Divisional Superintendent
(Highways & Rural Works)
Moolapalayam, Erode 638 002 .. Respondents
PRAYER: Writ Petition came to be numbered by transfer of O.A. No.8161 of 1999 on the file of the Tamil Nadu Administrative Tribunal to call for the records relating to the order of the second respondent in Na.Ka.No.5679/99/A4 dated 27.10.1999 and quash the same and direct the respondents to appoint the petitioner as 'Salai Paniyalar' in the Highways and Rural Works Department.
For Petitioner : Mr. K. Selvaraj
For Respondents : Mr. S. Sivashanmugam
Government Advocate
O R D E R
This writ petition is filed to call for the records relating to the order of the second respondent in Na.Ka.No.5679/99/A4 dated 27.10.1999 and quash the same and direct the respondents to appoint the petitioner as ‘Salai Paniyalar’ in the Highways and Rural Works Department.
2. The petitioner has passed X Standard and was selected to the post of “Salai Paniyalar” by the proceedings dated 28.10.1997. The petitioner is aggrieved by the impugned proceedings dated 27.10.1999 which says that he posses higher qualification i.e. 10th standard pass than the prescribed qualification, i.e. 10th standard fail. Since the petitioner is over qualified, he cannot be considered. The reason appears to be very strange and unpalatable. The above said impugned proceedings reads as follows:
jpU/ v!;/ uj;jpdk;. gjpt[ vz; 8537 vd;gtUf;F rhiyg;gzpahsh; gapw;rpahsh; gjtpf;F eph;zak; bra;ag;gl;l fy;tpj;jFjpf;F nky; cs;sjhy; ghh;it 1y; fz;Ls;s ,t;tYtyf bray;Kiwfspd;go rhiyg;gzpg; gapw;rpahsh; epakd cj;jut[ uj;J bra;ag;gl;Ltpl;lJ vd;gijj; bjhptpj;Jf; bfhs;sg;gLfpwJ/
3. Aggrieved by the same he has filed the Original Application in the year 1999 and the Tribunal directed the respondents to keep one post of Salai Paniyalar vacant. Reply affidavit has been filed by the respondents. It is unfortunate in the deponent of the counter affidavit has stated facts which are unnecessary and which are not relevant to the relief sought for. The only ground on which the selection is denied that he is over qualified. No specific rule or Government order has been shown which bars such appointment. Therefore, the reason for rejecting the petitioners request for employment is not sustainable. Further, the respondent is trying to improve this case in the counter affidavit by referring to several other reasons which are not found in the impugned proceedings.
4. It is trite law that the case of the respondents cannot be improved on the basis of the counter-affidavit or the written submissions vide Mohinder Singh Gill and another vs The Chief Election Commissioner, New Delhi and others AIR 1978 Supreme Court 851 and S.N. Mukherjee vs Union of India (1990) 4 SCC 594. In para 8 of the decision in AIR 1978 SC 851 reads as follows:
“8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J., in Gordhandas Bhani (AIR 1952 SC 16) (at p.18):
“Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.”
Orders are not like old wine becoming better as they grow older.”
Para 36 in (1990) 4 SCC 594 reads thus:-
36. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision on judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. ”
R. SUDHAKAR,J.
vga
4. For all the above stated reasons, the impugned proceedings is set aside and the petitioner is entitled to be considered for employment if he is otherwise eligible and satisfies all other requirements and records needed for employment. The Writ Petition is allowed as above. No costs.
26.02.2010
vga
Index : Yes/No
Internet : Yes/No
To
1. The Chief Engineer,
(Highways & Rural Works)
Chennai
2. The Divisional Superintendent
(Highways & Rural Works)
Moolapalayam, Erode 638 002
W.P. No.39831 of 2006