1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08.03.2011 CORAM: THE HONOURABLE MS.JUSTICE K.SUGUNA AND THE HONOURABLE MR.JUSTICE A.ARUMUGHASWAMY W.A.(MD).No.1 of 2011 and M.P.No.1 of 2011 R.Rajaseeli : Appellant Vs. 1.The Secretary, Municipal Administration and Water Supply Department, Fort.St.George, Chennai 9. 2.The Commissioner, Corporation of Madurai, Madurai. 3.S.Babu 4.P.Mani 5.V.S.Manian 6.D.Thiagarajan 7.S.Arulsahaya Xavier 8.T.Santhanam : Respondents PRAYER: Writ Appeal is filed under Clause 15 of the Letters Patent against the Order dated 26.11.2010 made in W.P.(MD).No.2318 of 2009 on the file of this Court. Prayer : Writ petition filed under Article 226 of the constitution of India for issuance of a writ of certiorarified mandamus calling for the records relating to the impugned order passed by the Second Respondent in his proceedings Ref.No.MA Ne1/5948/2007 dated 13.03.2009 and quash the same as illegal and consequently direct the Second Respondent to appoint the petitioner as Assistant Engineer in the Second respondent Corporation. For Appellant : Mr.B.Saravanan For Respondent 1 : Mr.M.Rajarajan Government Advocate For Respondent 2 : Mr.M.Ravishankar Standing Counsel For Respondents3to8 : Mr.Veera.Kathiravan https://hcservices.ecourts.gov.in/hcservices/ 2 JUDGMENT [Judgment of the Court was delivered BY K.SUGUNA, J] This Writ Appeal is directed against the order dated 26.11.2010 made in W.P.(MD).No.2318 of 2009, wherein the Writ Petition filed by the appellant herein challenging the order dated 13.03.2009 passed by the second respondent herein and for a direction to the second respondent to appoint the appellant as an Assistant Engineer in the second respondent Corporation was dismissed. 2. The facts leading to the filing of the present Writ Appeal are as follows:- (i). In response to the call letter dated 19.02.2008 issued to the appellant, she attended the interview conducted for selection and appointment to the post of Assistant Engineer. However, the results were not published. Meanwhile, by order dated 28.01.2009, promotion orders were issued to the private respondents herein. Without knowing the same, the appellant made a representation under the Right to Information Act, 2005, seeking the results of the interview conducted for selection and appointment to the post of Assistant Engineer. (ii). By order dated 13.09.2009, the appellant herein was informed that by promotion, the vacancies in the post of Assistant Engineer have been filled up. Challenging the said order dated 13.09.2009, the appellant filed W.P.(MD).No.2318 of 2009. (iii). A learned Single Judge of this Court, by order dated 26.11.2010, dismissed the said Writ Petition. Challenging the same, the appellant has filed the present Writ Appeal. 3. According to the learned counsel for the appellant, as far as the post of Assistant Engineer is concerned, the method of filling up the vacancies is governed by the Statutory Rules, viz., Tamil Nadu Municipal Corporation Service Rules, 1996, [hereinafter referred to as "the Rules"] and the post of Assistant Engineer comes under category 1 of group II of class II. As far as the method of recruitment is concerned, the same is dealt with under Rule 5 of the Rules. As per the Rules, the vacancies in the post of Assistant Engineer have to be filled up only by way of direct recruitment. According to the learned counsel for the appellant, in the Rules, there is no provision to fill up the post of Assistant Engineer by way of promotion. However, after calling for the candidates and after conducting interview, for the reasons best known to the second respondent Corporation, by order dated 28.01.2009, promotion orders were issued to the private respondents. 4. According to the learned counsel for the appellant, when there is no provision under the Statutory Rules to fill up the vacancies in post of Assistant Engineer by promotion, the promotion orders issued to the private respondents are contrary to the Rules. Apart from this, according to the learned counsel for the appellant, having called for the candidates for selection and appointment to the post of Assistant Engineer by direct recruitment, there is no necessity to fill up the vacancies by way of promotion. However, the learned Single Judge dismissed the Writ Petition on the ground that what was under challenge in the Writ Petition was only a communication sent to the appellant and not the promotion orders issued to the private respondents. Basing on the above, the learned counsel for the appellant has prayed for allowing of the Writ Appeal. https://hcservices.ecourts.gov.in/hcservices/ 3 5. According to the learned counsel appearing for the private respondents, as far as the promotion of the private respondents is concerned, it is only by way of temporary promotion and Rule 7 of the said Rules authorizes temporary promotion. Yet another stand taken by the learned counsel for the private respondents is that by way of a Government Order issued in G.O.Ms.No.416, Municipal Administration and Water Supply Department, dated 15.09.1999, permission has been granted to fill up the vacancies by qualified candidates, who are working in the lower categories, consequently, as per the said Government Order, the promotion given to the private respondents is in accordance with the said Government Order. 6. Yet another stand taken by the learned counsel for the private respondents is that the said Government Order was not under challenge in the Writ Petition. Besides, after giving such promotion, the same has been sent for ratification and till such ratification is obtained, it should be construed as temporary promotion. When Rule 7 authorizes temporary promotion, question of illegality in the said promotion does not arise. Apart from this, the main argument advanced by the learned counsel for the private respondents is that as far as the appellant is concerned, as on date, he is not an employee of the second respondent Corporation, and therefore, he has no locus standi to challenge the promotion orders given to the private respondents. Mere attending the interview will not confer any right to the appellant to challenge the promotion orders given to the private respondents. In support of his contention, the learned counsel for the private respondents has relied on the following Judgments:- (i). Ludhiana Central Coop. Bank Ltd v. Amrik Singh reported in 2003 (10) SCC 136, Paragraph No.8;- "8. We have carefully considered the submissions on behalf of the parties on either side, in the light of the materials placed on record. The conclusion that the functioning of the then Managing Director of the appellant Bank is neither appreciable nor can the so-called selections be given any credence of real/proper selections or can be said to have been made in accordance with law, becomes irresistible. The whole process appears to have been not only perfunctory but really a farce of selection vitiated by award of indiscriminate marks to boost up the candidates of choice and unreasonably put down others in utter disregard and derogation of the binding guidelines. Indisputably, the power to appoint is vested in the Board of Directors of the appellant Bank under the bye-laws and the constitution of a committee for the selection of candidates by conducting tests and interviews cannot clothe the said Committee with powers also to finalise the same without the approval of the Board and/or either declare the results of selection on its own or appoint persons pursuant to such selections without reference to the Board. There is a serious claim by the appellant Bank, that the assessment of candidates appears to be in gross violation of the binding circular orders of the Registrar of Cooperative Societies dated 31-12-1991. The High Court while passing the order on 22-10-1997 allowing the https://hcservices.ecourts.gov.in/hcservices/ 4 writ petition, could not have ignored the directions of the Registrar on 9-1-1997 and 21-1-1997, the ban orders of the Government issued on 10-2-1997 and the final directions issued on 3-4-1997 by the Registrar as to what should be done in all pending as well as fresh matters to ensure transparency as well as to mete out real and effective justice to all the aspirants for the jobs in question, by finding a solution of its own without even looking into the records relating to the selection to satisfy itself as to the legality, propriety, regularity and reasonableness of the so-called selections and the process adopted by the Committee before directing action to be taken in implementation thereof. Even otherwise, it is well settled by now that a person whose name is said to find place in a select panel has no vested right to get appointed to the post in spite of vacancies existing. The appointing authority cannot afford to ignore individual claims at its whim or fancy, in operating such a panel or making appointments on the basis of the panel, by merely “pick and choose” of candidates. The High Court could not have directed the publication of results or to accord appointments as per such results, all the more in this case, in the teeth of and in derogation of the circular orders of the Registrar of Cooperative Societies dated 3-4-1997 which decision seems to have been taken as a matter of policy and for uniform application to all cases pending finalisation as well as for any new proposals for recruitment of staff relating to all cooperative banks in the State. The High Court ought to have, at any rate, gone into all these relevant and vital aspects at least when serious irregularities have been brought to notice by filing a review petition, by calling for production of the relevant records. The cavalier fashion in which it seems to have been rejected cannot meet with our approval, at any rate on the peculiar facts and circumstances highlighted in this case." (ii). State of Orissa v. Bhikari Charan Khuntia reported in 2003 10 SCC 144, Paragraph Nos.8 and 9;- "8. As was observed by this Court in Govt. of Orissa v. Haraprasad Das whether to fill up or not to fill up a post, is a policy decision and unless it is arbitrary, the High Court or the Tribunal has no jurisdiction to interfere with such decision of the Government and direct it to make further appointments. In the present case, no selection was made and not even any select list was in existence. Even if there had been any such selection or inclusion of any of the names in the select list, the same could not have given any right. Therefore, mere sending of names by the employment exchange could not have, and in fact, has not conferred any right. The writ applications were thoroughly misconceived, and the Court misdirected itself as to the nature of relief to be granted. 9. It cannot be lost sight of that because of certain circumstances and policy decision which were also brought to the notice of the High Court, appointments could not be made. The reasons which persuaded the Government to absorb those who https://hcservices.ecourts.gov.in/hcservices/ 5 were rendered surplus on account of abolition of octroi and the decision taken to abolish a substantial number of posts to minimize expenditure cannot be said to be either extraneous or irrelevant for the purpose, to be ignored by the Court in according relief to the writ petitioners. But the High Court notwithstanding chose to give directions as quoted above. The appointments made in respect of some who got empanelled on regular selections made by the Recruitment Board pursuant to the selection process undertaken does not give any sustenance to the writ petitioners to claim parity of treatment when their claims cannot be equated to those of such empanelled candidates." (iii). State of UP v. Bibhakar Dwivedi reported in 2003 12 SCC 62, Paragraph No.11;- "11.The general principle of law as has been established and followed repeatedly by this Court is that even those candidates whose names are included in the merit list do not have a vested right to be appointed. (See Shankarsan Dash v. Union of India.) The decision relied upon by the High Court and which has been cited before us, namely, Jai Narain Ram v. State of U.P. had been rendered in connection with the case of Scheduled Caste candidates. It was held in that case that Scheduled Caste candidates who were in the waiting list could be directed to be appointed against the reserved category when vacancies were created in such reserved category by reason of the successful candidates not joining the post. The reasoning is based upon Article 14 read with Articles 16(1) and (4) of the Constitution. The Court held in paragraph 7 of the Report that given these constitutional rights." (iv). State of Orissa v. Rajkishore Nanda reported in 2010 (5) MLJ 944 Paragraph Nos.13 and 14;- "13. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate. 14. A Constitution Bench of this Court in Shankarsan Dash v. Union of India AIR 1991 SC 1612 : 1991 (3) SCC 47 : 1992 II LLJ 18, held that appearance of the name of a candidate in the select list does not give him a right of appointment. Mere inclusion of the candidate’s name in the select list does not confer any right to be selected, even if some of the vacancies remain unfilled. The candidate concerned cannot claim that he has been given a hostile discrimination. (See also Asha Kaul v. State of J&K 1993 (2) SCC 573, Union of India v. S.S. Uppal AIR 1996 SC 2340, Bihar Public Service Commission v. State of Bihar AIR 1997 SC 2280, Simanchal Panda v. State of Orissa and others AIR 2002 SC 2444 : @002 (2) SCC 669, Punjab SEB v. Malkiat https://hcservices.ecourts.gov.in/hcservices/ 6 Singh AIR 2004 SC 5061, Union of India v. Kali Dass Batish and another AIR 2006 SC 789 : 2006 (1) SCC 779 : 2006 (1) MLJ 194, Divisional Forest Officer v. M. Ramalinga Reddy AIR 2007 SC 2226, Subha B. Nair v. State of Kerala and others 2008 7 SCC 210, Mukul Saikia v. State of Assam (supra) and S.S. Balu v. State of Kerala 2009 (2) SCC 479 : 2009 (6) MLJ 966.)" (v). and State of M.P.v. Sanjay Kumar Pathak reported in 2008 (1) SCC 456 Paragraph No.18. "18. The Tribunal as also the High Court did not call for the documents pertaining to the selection process. No finding of fact has been arrived at that the respondents herein were bound to be selected and consequently appointed. Whether all of them had fared better than the other candidates who had not approached the Tribunal had not been found. As the selection process itself was not complete, there was nothing before the Tribunal as also the High Court to indicate that they had acquired legal right of any kind whatsoever. Even where, it is trite, the names of the persons appeared in the select list, the same by itself would not give rise to a legal right unless the action on the part of the State is found to be unfair, unreasonable or mala fide. The State, thus, subject to acting bona fide as also complying with the principles laid down in Articles 14 and 16 of the Constitution of India, is entitled to take a decision not to employ any selected (sic candidate) even from amongst the select list. Furthermore, we have noticed hereinbefore, that selections were made in four phases. It is not the contention of the respondents that the State Government acted mala fide. The dispute, as noticed hereinbefore related to appointment in Phase 3 and Phase 4 only." 7. Relying on the above Judgments, the learned counsel for the private respondents has submitted that when the appellant does not have any locus standi to challenge the promotion orders given to the private respondents, question of giving appointment order to her does not arise, consequently, according to the learned counsel for the private respondents, there is no infirmity in the order giving promotion to the private respondents. That apart, according to the learned counsel for the private respondents, by appointing the private respondents as Assistant Engineers basing on G.O.Ms.No.416, Municipal Administration and Water Supply Department, dated 15.09.1999, nothing had been done contrary to the Statutory Rules, since the said Government Order, though it is in the form of executive instructions, the gaps can be filled up by way of executive instructions. The Executive instructions issued, which enable the second respondent Corporation to promote the incumbents of the lower categories as Assistant Engineers, is only supplementing the Statutory Rules and not supplanting the Statutory Rules. Basing on the above, the learned counsel for the private respondents has prayed for dismissal of the Writ Appeal. 8. According to the learned Standing Counsel for the second respondent Corporation, G.O.Ms.No.416, Municipal Administration and Water Supply Department, dated 15.09.1999, gives power to the second respondent Corporation to give promotion to the incumbents of the lower categories as Assistant Engineers. Basing on the above Government Order, the https://hcservices.ecourts.gov.in/hcservices/ 7 promotion orders have been issued to the private respondents. Apart from this, the promotion of the private respondents has been sent for ratification and if no ratification is obtained, the private respondents will be reverted back. Apart from this, yet another stand taken by the learned Standing Counsel for the second respondent Corporation is that though promotion orders have been given to the private respondents, the same have not been confirmed till date, consequently, it has to be treated only as temporary promotion and not permanent promotion. According to the learned Standing Counsel for the second respondent Corporation, as far as the appellant is concerned, she has no locus standi to challenge the promotion orders issued to the private respondents. Yet another stand taken by the learned Standing Counsel is that since certain candidates have filed Writ Petitions and sought for interim injunction restraining the official respondents from filling up the vacancies in the post of Assistant Engineer by way of direct recruitment, they have filled up the vacancies to the post of Assistant Engineer by way of promotion. Basing on the above, the learned Standing Counsel for the second respondent Corporation has prayed for dismissal of the Writ Appeal. 9. The learned Government Advocate appearing for the official respondent has submitted that when the matter is pending before the Government for ratification, the act of the second respondent in giving promotion to the private respondents is valid. Basing on this, the learned Government Advocate has sought for dismissal of the Writ Appeal. 10. We have considered the above submissions made by the respective learned counsels. 11. Admittedly, as per Rule 5 of the Rules, vacancies in the post of Assistant Engineers have to be filled up only by way of direct recruitment. The stand of the learned Standing Counsel for the second respondent Corporation as well as the learned counsel for the private respondents is that it is only temporary promotion given to the private respondents. Even assuming that it is only temporary promotion, the same cannot be granted contrary to the Rules. When a promotion order given to any employee of any establishment is not in accordance with law, it has to be termed as an illegal promotion/appointment. Rule 7 of the said Rules deals with temporary promotion. As per Rule 7 of the Rules, the Appointing Authority shall promote any person temporarily for a period not exceeding three months in order to fill up a vacancy. However, in the case on hand, the private respondents have been issued with promotion orders as early as January 2009 itself and they have been allowed to occupy the post of Assistant Engineers for more than one year. 12. The argument of the learned counsel for the private respondents that the appellant does not have any locus standi to challenge the promotion orders given to the private respondents cannot be allowed to stand, for the reason that even if the appellant is not an employee of the second respondent Corporation, as rightly pointed out by the learned counsel for the appellant, it is not in dispute that the name of the appellant was sponsored by the Employment Exchange and she was also subjected to selection process and without announcing the results, the promotion orders have been issued to the private respondents, and thereby, the appellant is deprived of her chances of getting appointment https://hcservices.ecourts.gov.in/hcservices/ 8 to the post of Assistant Engineer. When the Rule specifically says that the vacancies have to be filled up only by way of direct recruitment, filling up the same by way of promotion is contrary to the Rules, and thereby, the appellant is deprived of her chances of getting appointment. Under such circumstances, the Judgments relied on by the learned counsel for the private respondents will not have any application to the facts of the present case. 13. As per the Judgment of the Hon'ble Supreme Court, which is relied on by the learned counsel for the private respondents in Ludhiana Central Coop. Bank Ltd v. Amrik Singh reported in 2003 (10) SCC 136, Paragraph Nos.8 and 9, the vacancies have to be filled up only as per the Rules. The same has been again reiterated in the Judgment of the Hon'ble Supreme Court in State of Orissa v. Rajkishore Nanda reported in 2010 (5) MLJ 944, Paragraph Nos.13 and 14. But, here is case, where the vacancies in the post of Assistant Engineer have been filed up by way of promotion, consequently, the argument advanced by the learned counsel for the private respondents in this regard will not hold good. 14. As far as the other argument advanced by the learned counsel for the private respondents that the appellant has not challenged the promotion orders issued to the private respondents is concerned, what was communicated to the appellant is only the communication dated 13.03.2009, for the information sought for by the appellant under the Right to Information Act, 2005, whereby the appellant was informed that the vacancies in the post of Assistant Engineer have been filled up by way of promotion. Apart from this, when the Rule specifically says that the vacancies in the post of Assistant Engineer have to be filled up only by way of direct recruitment, the act of the second respondent Corporation in filling up the vacancies by way of promotion is contrary to the Statutory Rules. 15. As per the settled position of law, without bringing amendment to the Statutory Rules, no promotion can be made basing on the executive instructions. The other argument advanced by the learned Standing Counsel for the second respondent Corporation that it is only supplementing the Statutory Rules and not supplanting the Statutory Rules cannot be allowed to stand, for the simple reason that giving promotion based on the executive instructions, contrary to the Statutory Rules, is, certainly, supplanting the Statutory Rules and not supplementing the Statutory Rules. 16. For the all the reasons stated above, the order dated 26.11.2010 made in W.P.(MD).No.2318 of 2011 is set aside and the Writ Appeal is allowed. The second respondent Corporation is directed to fill up the post of Assistant Engineer as per the Rules available. No costs. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar (CO) /True copy/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 9 To 1.The Secretary, Municipal Administration and Water Supply Department, Fort.St.George, Chennai 9. 2.The Commissioner, Corporation of Madurai, Madurai. +1CC TO THE SPECIAL GOVERNMENT PLEADER, SR.5654 +1CC TO MR.M.RAVISHANKAR, ADVOCATE SR.5698 +1CC TO MR.VEERA KATHIRAVAN, ADVOCATE SR.11708 NB RPB : 19.04.2011 : 9p/6c JUDGMENT MADE IN W.A.(MD).No.1 of 2011 08.03.2011 https://hcservices.ecourts.gov.in/hcservices/