1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:20.06.2011 CORAM: THE HON'BLE MS. JUSTICE K. SUGUNA and THE HON'BLE MR. JUSTICE A. ARUMUGHASWAMY WA(MD)No.164 of 2011 and MP(MD)No.2 of 2011 The Managing Director, Tamil Nadu State Transport Corporation Ltd., Kumbakonam Division, Kumbakonam. :Appellant -Vs- 1.P. Rajesh Kumar 2.The Secretary, Tamil Nadu State Transport Corporation, St. George Fort, Chennai, Pin.– 623 704 :Respondents Writ Appeal filed under Clause 15 of the Letters Patent challenging the order dated 06.08.2010 passed in W.P. No.6358 of 2010. WP 6358 of 2010 Prayer:Petition filed under article 226 of the Constitution of India praying for the issuance of a writ of certioararified Mandamus to call for the records on the file of the second respondent herein in proceeding Ref.No.Ta.27/142 dated 12.4.2010, pertaining to disqualifying the petitioner from recruiting for the post of Assistant Engineer and to quash the same as illegal and further direct the respondent herein to recruit the petitioner for the post of Assistant Engineer in the second respondent corporation. For petitioner :Mr. P. Thilak Kumar For R1 :Mr. K.R. Laxman JUDGMENT (Judgment of the Court was delivered by K. SUGUNA, J.) This writ appeal is filed challenging the order dated 06.08.2010 passed by the Writ Court in W.P. (MD) No.6358 of 2010. 2.The above said writ petition was filed challenging the order dated 12.04.2010 by which the first respondent/writ petitioner's candidature for the post of Assistant Engineer in the Transport Corporation was rejected on the ground that he had got through B.E. Degree only in second class However, the Writ Court, accepting the case of the first respondent/writ petitioner that as per the service rules, the required qualification is only B.E. degree, has allowed the said writ petition. As against the same, the State Transport Corporation, Kumbakonam Division, has filed this writ appeal 3.According to the learned counsel for the appellant Transport Corporation, as per G.O. Ms. No.161, Adi Dravidar and Tribal Welfare Department dated 14.07.1993, only in the event of non-availability of candidates who have passed B.E. in first class, the claims of those who have passed B.E. in second class have to be considered; consequently, since the first respondent/writ petitioner has passed B.E. degree only in second class and when 11 candidates who have passed B.E. degree in first class are available, the question of considering the claim of the first respondent/writ petitioner does not arise; that apart, as per the service rules, though the required qualification prescribed is only B.E. degree, the https://hcservices.ecourts.gov.in/hcservices/ 2 Board of Directors has got the power to modify the service qualification in order to select a better candidate; besides, the Writ Court had given a positive direction to recruit the first respondent/writ petitioner and even in the event of this Court coming to the conclusion that the ground on which the candidature of the first respondent/writ petitioner was rejected is wrong, only a direction to consider the claim of the first respondent/writ petitioner can be given and no direction can be given so as to recruit the first respondent/writ petitioner. Based on these submissions, the learned counsel for the appellant Transport Corporation has sought setting aside of the order of the Writ Court and allowing of the writ appeal. 4.But, according to the learned counsel for the first respondent/writ petitioner, even in the call letter issued to the first respondent/writ petitioner, there is no specific mention about the requirement of passing B.E. degree in first class and even as per the Service Rules, the required qualification is only B.E. degree and there is no mention about the requirement to pass B.E. degree in first class; consequently, over and above the qualification prescribed under the service rules, the respondent Transport Corporation is not at liberty to prescribe any qualification; apart from this, as per the order dated 27.08.2009 passed by this Court in W.P. No.22510 of 2008, this issue has been dealt with and directions have been issued to consider the claim of the candidate based on the qualification prescribed under the Service Rules and this order has been confirmed in W.A. No.758 of 2010 by judgment dated 08.06.2010; under such circumstances, without amending the service rules, requiring pass in first class in B.E. degree is contrary not only to the service rules but also to the orders passed by this Court. Yet another stand taken by the learned counsel for the first respondent/writ petitioner is that the first respondent/writ petitioner had also left the job which he was doing earlier and now, only based on the hope of getting appointment as Assistant Engineer in the appellant Transport Corporation, he is awaiting the order of appointment. Based on these submissions, the learned counsel for the first respondent/writ petitioner has sought dismissal of the writ appeal. 5.We have considered the above submissions of the respective learned counsel. 6.Admittedly, now, the issue to be decided is with regard to the qualification to be possessed for consideration for appointment to the post of Assistant Engineer in the appellant Transport Corporation. It is not in dispute that as per the service rules, the required qualification is only B.E. degree and there is no whisper with regard to possession of first class in B.E. degree and as per the orders of this Court also which have been referred to above, this position has been made clear. Even as per the call letter issued to the first respondent/writ petitioner also, there is no whisper with regard to the possession of first class in B.E. degree. On the other hand, in the call letter issued by the Madurai Division, there is a specific reference about the possession of first class degree and not even the letter addressed to the Employment Exchange also is brought to the notice of this Court so as to emphasise that the employment exchange was directed to sponsor only candidates who have passed B.E. degree in first class. 7.It is the stand of the appellant Transport Corporation that the Board of Directors has got the power with regard to qualification to be prescribed for a particular post. We are also in agreement with this stand of the https://hcservices.ecourts.gov.in/hcservices/ 3 learned counsel for the appellant Transport Corporation. But, for that also, a procedure has to be followed. When service rules prescribe a particular qualification and when as per the orders of this Court, only by bringing an amendment to the said service rules, qualification can be altered, we are of the considered view that without any proceedings or without any intimation to the candidates, on their own, the appellant Transport Corporation cannot prescribe any qualification which is not in conformity with the service rules. 8.In the case in hand, admittedly, the first respondent/writ petitioner is qualified with B.E. degree. But, he has passed the said degree in second class. The question to be decided is whether based on his passing B.E degree in second class, his candidature for the post of Assistant Engineer can be rejected. As per the service rules, when the prescribed qualification is only B.E. degree without any whisper with regard to passing B.E. degree in first class and also in view of the judgment dated 08.06.2010 rendered by a Division Bench of this Court in W.A. No.758 of 2010, we are of the considered view that the required qualification is only B.E. degree, i.e., the qualification which has been prescribed under the service rules especially when no such an intimation with regard to possession of first class in B.E. Degree has been brought to the notice of either the employment exchange or to the candidates in any form. 9.However, we have to take into account the submission of the learned counsel for the appellant Transport Corporation that already 11 candidates are available with first class in B.E. degree from which the first respondent/writ petitioner also claims the relief and the claim of these 11 candidates comes within the prescribed quota for SC/ST candidates. 10.Under such circumstances, the order of the Writ Court is modified with a direction to the appellant Transport Corporation to consider the claim of the first respondent/writ petitioner along with the other SC/ST candidates and to decide his candidature for appointment to the post of Assistant Engineer and to pass orders within a period of four weeks from the date of receipt of a copy of this order. With the above direction, this writ appeal is disposed of. No costs Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar (CO) / TRUE COPY / Sub Assistant Registrar To: 1.The Secretary, Tamil Nadu State Transport Corporation, St. George Fort, Chennai, Pin – 623 704. 2.The Managing Director, Tamil Nadu State Transport Corporation Ltd. Kumbakonam Division, Kumbakonam. +1CC to Mr.P.Thilakkumar, Advocate. SR.No.19213. +1CC to Mr.K.R.Laxman, Advocate. SR.No.19178. Cad W.A. (MD) No.164 of 2011 RP/05.07.2011/3P/5C. 20.06.2011 https://hcservices.ecourts.gov.in/hcservices/