IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 22.4.2008 Coram: The Honourable Mr.Justice P.K. MISRA and The Honourable Mr.Justice K.CHANDRU W. P. No. 8482 of 2003 P. Ganaselvaudayakumari ... Petitioner -vs- 1. The Registrar Tamil Nadu Administrative Tribunal Chennai 2. The Director Social Welfare Department Chepauk,Chennai 3. The Director Directorate for Rehabilitation of the Disabled Mylapore, Chennai 4. V. Gopal ... Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus calling for the records of the first respondent relating to the order dated 22.01.2003 made in O.A. No. 5603 of 1993 confirming the order passed by the second respondent appointing the fourth respondent as P.G. Assistant passed in his proceedings Roc. No. 84921/H4 II-1/91 dated 24.12.1991 and quash the same and direct the respondents 2 and 3 to promote the petitioner as P.G. Assistant (Political Science) with effect from 24.12.1991 with all consequential service benefits and promotions granted to the fourth respondent. For Petitioner : Mr. M. Veerendran for Mr. Ramesh Kumar For Respondents 2&3 : Mr. M. Dhandapani, Spl. GP For Respondent 4 : Mr. K. Thennan ORDER K. CHANDRU, J. Heard the arguments of Mr. M. Veerendran, learned counsel https://hcservices.ecourts.gov.in/hcservices/ representing Mr. Ramesh Kumar, learned counsel appearing for the petitioner, Mr. M. Dhandapani, learned Special Government Pleader representing the respondents 2 and 3 and Mr. K.Thennan, learned counsel for the fourth respondent and have perused the records. 2. The petitioner was working as a Secondary Grade Teacher in the Government School for Blind, Sivaganga. Aggrieved by the proceedings dated 24.12.1991 issued by the second respondent appointing the fourth respondent as P.G. Assistant (Political Science), she filed original Application in O.A. No. 5603 of 1993 before the Tamil Nadu Administrative Tribunal [for short, 'Tribunal']. 3. The grievance of the petitioner was that she joined the School run by the Social Welfare Department as a Secondary Grade Teacher in the year 1984. She had also undergone the Diploma in Teaching for the Blind in the Government Teacher Training School at Poonamallee. During the year 1991, a vacancy for the post of P.G. Assistant (Political Science) arose and applications were called for by the second respondent. The post of P.G. Assistant (Political Science) was not a promotional post from the post of Secondary Grade Teacher. As per the application invited by the second respondent, it was stated that the candidate must possess PG degree in Political Science with Graduation in Education and also Diploma in Teaching for the Blind. The petitioner had all the qualifications required for the post and she was the only qualified candidate available for the post. 4. The application sent by the petitioner was forwarded by the Headmaster and it was dated 12.12.1991. It was stated that the last date for receipt of the application was 15.12.1991. But the petitioner's application was forwarded with a covering letter by the Headmaster through the District Social Welfare Officer. It was to the misfortune of the petitioner, the District Social Welfare Officer did not immediately forward the said application and sent the same belatedly. The District Social Welfare officer, Sivaganga, forwarded the application with a covering letter dated 24.12.1991 and hence, it was claimed that the application was received by the Directorate long after the last date fixed for receipt of the application. The second respondent, therefore, selected the fourth respondent, who was not qualified to hold the said post. 5. The fourth respondent was working as an Assistant in the office of the second respondent Directorate. He did not have the Diploma in Teaching for the Blind. He also did not belong to teaching service but belonged to the Tamil Nadu Ministerial Service and he never taught in any school even for a single day. The second respondent, unmindful of the qualification prescribed, appointed the fourth respondent as a P.G. Assistant (Political Science) by invoking Rule 39 (a)(1) of the Tamil Nadu State and Subordinate Service Rules and posted him to work in the Government Higher Secondary School for Blind at https://hcservices.ecourts.gov.in/hcservices/ Poonamallee. He was given three more years to qualify himself by getting Diploma in Teaching for the Blind. The petitioner protested against the same and sent a representation dated 24.6.1992 to the second respondent. Thereafter, she filed the Original Application. 6. The Tribunal, by its order dated 22.01.2003, rejected the claim of the petitioner. The Tribunal held that the petitioner's application was received belatedly and even though the fourth respondent was not qualified at the time of his appointment, since no other candidate was available, he was appointed. But at the time of hearing of the case, he got himself qualified. Therefore, the Tribunal merely observed that the petitioner may be considered for the next vacancy. Though the writ petition was admitted on 19.3.2003, but no interim order was granted. 7. Mr. Veerendran, learned counsel appearing for the petitioner contended that the order appointing the fourth respondent was totally illegal in as much as he was not qualified to hold the said post and he lacked the basic qualification to get appointed. Under the Adhoc Rules framed for the said post, by G.O. 511 Education dated 16.3.1959 it is stated as follows: "No person shall be eligible for the appointment to the said posts of the School Assistants unless he possesses the Government Certificate of the competency in teaching the blind, or the Senior Diploma in Teaching the Blind in addition to the qualification prescribed for the posts in the category 2 of Class II of the said service. Provided that if a suitable and qualified persons not available a person not possessing the certificate or Senior Diploma may be appointed but such person must obtain the Senior Diploma in the teaching the Blind within a period of Four Years from the date of his appointment to the said post." 8. It is seen from the records that even before the details were called for by the second respondent for appointment to the post of P.G. Assistant, the petitioner had sent a representation dated 02.4.1990 staking claim for the said post. She also further sent a reply pursuant to the information sought for by the Directorate vide communication dated 21.5.1990. Even in the circular dated 05.12.1991, it was only the Department Officers who were asked to send the details regarding qualified candidates working in the Department. To put it otherwise, the Department had the complete information about the petitioner's qualification and the obligation to send the particulars lay only with the subordinate officers. 9. Therefore, it may be possible that the fourth respondent, https://hcservices.ecourts.gov.in/hcservices/ working as an Assistant in the very same Directorate, after coming to know of the petitioner's eligibility, might have successfully blocked the petitioner's application reaching the Directorate. The allegation of mala fide was also alleged against the second respondent Department in paragraph 6 of the Original Application. It was not denied by the official respondents. The Special Rules clearly states that if suitable and qualified persons are not available, then only, a person who is not having the Diploma in Teaching for the Blind, can be appointed. 10. In the present case, there was an undue haste by the second respondent to appoint the fourth respondent, who was not qualified. The Department was well aware of the qualifications possessed by the petitioner, which information was furnished to the Department vide her representation dated 02.4.1990. The needle of suspicion points towards the fourth respondent's complicity in this matter, who was working in the very same Directorate and who belonged to the Ministerial service and who had no teaching experience whatsoever before his appointment, was having an eye over the very same post. 11. In this context, the learned counsel brought to the notice of this Court the judgment of the Supreme Court in U.P. Public Service Commission, v. Alpana [(1994) 2 SCC 723]. In paragraph 6 of the judgment, it was held as follows: Para 16: ".... The facts of this case reveal that the respondent was not qualified to apply since the last date fixed for receipt of applications was August 20, 1988. No rule or practice is shown to have existed which permitted entertainment of her application. The Public Service Commission was, therefore, right in refusing to call her for interview. The High Court in Writ Petition No. 1898 of 1991 mandated the Public Service Commission to interview her but directed to withhold the result until further orders. In obedience to the directive of the High Court the Public Service Commission interviewed her but her result was kept in abeyance. Thereafter, the High Court while disposing of the matter finally directed the Public Service Commission to declare her result and, if successful, to forward her name for appointment. The High Court even went to the length of ordering the creation of a supernumerary post to accommodate her. This approach of the High Court cannot be supported on any rule or prevalent practice nor can it be supported on equitable considerations...." 12. Thereafter, he relied upon the decision of the Supreme Court reported in (1995) Supp (4) SCC 706 [Harpal Kaur Chahal (Smt) v. Director, Punjab Instructions, Punjab and another] and referred to https://hcservices.ecourts.gov.in/hcservices/ paragraph 2 which reads as follows: Para 2: "It is contended for the appellant that since the appellant had been appointed by the duly constituted Departmental Selection Committee and as on the date of interview since the appellant had the qualification, her selection and appointment cannot be said to be illegal. We find no force in the contention. It is to be seen that when the recruitment is sought to be made, the last date has been fixed for receipt of the applications. Such of those candidates who possessed of all the qualifications as on that date alone are eligible to apply for and to be considered for recruitment according to rules. Since the appellant had not possessed the Physical Training Instructor qualifications as on that date, her illegal consideration by the Board and recommendation for appointment and the appointment made in furtherance thereof are illegal...." 13. The learned counsel placed reliance on the judgment of the Supreme Court reported in 1997 (4) SCC 18 [Ashok Kumar Sharma and others v. Chander Shekhar and another] and relied on the following passage found in paragraph 6: Para 6: ".... The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well-established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself." 14. Further reliance was placed upon the decision in Rajasthan Public Service Commission v. Kaila Kumar Paliwal and another [2007 (10) SCC 260] and paragraphs 20 and 21 read as follows: Para 20: "A person in order to be considered for promotion to a https://hcservices.ecourts.gov.in/hcservices/ higher post must possess the essential qualification. If he does not do so, he cannot be considered therefor. Even the Selection Committee in absence of any express power conferred upon it cannot relax such essential qualification. [See J.C. Yadav v. State of Haryana and Bhanu Prasad Panda (Dr.) v. Chancellor, Sambalpur University.] Para 21: Recruitment to a post must be made strictly in terms of the Rules operating in the field. Essential qualification must be possessed by a person as on the date of issuance of the notification or as specified in the Rules and only in absence thereof, the qualification acquired till the last date of filing of the application would be the relevant date. (See Ashok Kumar Sharma v. Chander Shekhar, U.P. Public Service Commission v. Alpana and Harpal Kaur Chahal v. Director, Punjab Instructions." 15. In the present case, the second respondent ought to have rejected the claim made by the fourth respondent as he belonged to Ministerial service and hardly had any teaching experience in his career. When he submitted his application for the post of P.G. Assistant, the same should have been rejected outrightly. By exercising the power under Rule 39 and relaxing the essential qualification, the second respondent had misused his official power only with a view to promote his own staff of the Directorate. 16. In the present case, neither before the Tribunal nor before this Court, any repliy had been filed either by the official respondents or by the private respondent and the allegations made by the petitioner both in the O.A. as well as in the affidavit filed in support of the writ petition, remain uncontroverted. 17. In the light of the above facts as well as the binding precedents of the Supreme Court referred to above, we have no hesitation in setting aside the order dated 22.01.2003 passed by the Tribunal in O.A. No. 5603 of 1993 as well as the order of the second respondent dated 24.12.1991 appointing the fourth respondent as P.G. Assistant (Political Science). 18. It is now brought to the notice of this Court that by virtue of his illegal appointment, the fourth respondent also had become the Headmaster of the Higher Secondary School. Since such a promotion was given only pursuant to the illegal appointment, the fourth respondent has to be necessarily removed and the petitioner has to be appointed as P.G. Assistant (Political Science) with all the consequential benefits. https://hcservices.ecourts.gov.in/hcservices/ 19. In the light of the above, the writ petition is allowed with the above directions. However, there will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gri To 1. The Director Social Welfare Department Chepauk, Chennai 2. The Director Directorate for Rehabilitation of the Disabled Mylapore, Chennai +1cc to Govt Pleader 23110 +1cc Mr.S.RameshKumar 22892 W. P. No. 8482 of 2003 Delivered on 22.4.2008 MRD(CO) 24/04 rvr 30/04 https://hcservices.ecourts.gov.in/hcservices/