IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.12.2009 CORAM: THE HON’BLE MR.JUSTICE K.CHANDRU W.P.Nos.1144 and 1145,456,505, 4978,10400,14056,of 2009, W.P.Nos.12843, 12844,15448,16161, 20091, 26621 to 26626, 26650, 26651,28477,28989,29020,29354, 29449,30131,30219,of 2008 and connected miscellaneous petitions D.JAYALALITHA ..PETITIONER IN W.P.NO.1144/09 M.VALAN JAYANTHI ..PETITIONER IN WP 1145/2009 MOHANDHAS ..PETITIONER IN WP 456/2009 P.BABU ..PETITIONER IN WP 505/2009 D.VASANTHI ..PETITIONER IN WP 4978/2009 C.MEGAVANNAN ..PETITIONER IN WP 10400/2009 N.ELAMATHI ..PETITIONER IN WP 14056/2009 E.J.SHEEJA ..PETITIONER IN WP 12843/2008 L.USHA ..PETITIONER IN WP 12844/2008 1.R. SELVAVINAYAGAM 2. C. MEGAVANNAN 3. K. PRASAD 4. L. RAMAR 5. C.L. VINCILA 6. M. DHANALAKSHMI 7. A. JANAKI 8. K. JAYANTHI 9. I. PAKKIYA SELVAM 10. R. MERLIN 11. S. SIVASUNDARI 12. A. MARY FLORENCE BAI 13. J.P. SUGIRTHA 14. T. TAMILARASI 15. K. KUMUTHALAKSHMI 16. K. PADMAVATHI 17. R. ANITHA BOSE 18. R. BHARATHI 19. K. THAMARAISELVI 20. R. SELVI 21. V. VETHAMARIAMMAL 22. T. BRINDA 23. J. SELVAMANI 24. P.R. SARASWATHI 25. G. PRABHA https://hcservices.ecourts.gov.in/hcservices/ 26. A. KALAREGINA 27. K. RAJAMANI 28. M. PARTHASARATHY 29. F. LEO ANTONY XAVIER 30. M. VANITHA DEVI 31. S. KOILRAJ 32. R. KRISHNAMURTHY 33. J. JAGANATHAN 34. L. SOOSAI ANTONY, 35. V. JESURAJ 36. G. SHANKAR 37. R. VINNARASI 38. J. VIMALRAJ 39. S. SELVALATHA 40. A. PETER REX, 41. A. AAROKIYA DOSS 42. S. RAJU 43. D.N. GEETHA 44. G. VIJAYALAKSHMI 45. M. THANGAMANI ..Petitioner in WP 15448/2008 1.J.Francis Asisi Manickam 2.P.Graci Latha ..Petitioner in WP 16161/2008 K.Gopi ..Petitioner in WP 20091/2008 M.Subash Chandra Bose Kumar ..Petitioner in WP 26621/2008 T.Manivannan ..Petitioner in WP 26622/2008 Mahimainathan ..Petitioner in WP 26623/2008 John Wasley ..Petitioner in WP 26624/2008 R.Jayamani ..Petitioner in WP 26625/2008 K.Sumathi ..Petitioner in WP 26626/2008 T.Helen Mercy Chinna Rani ..Petitioner in WP 26650/2008 J.Jayanthi ..Petitioner in WP 26651/2008 V.P.Rajendran ..Petitioner in WP 28477/2008 1) K.RAMAN 2) R.SARVANAN 3) R.UTHIRASAMY 4) P.MANI 5) K.MANJULA 6) P.ALAMELUMANGAI 7) S.INDIRADEVI https://hcservices.ecourts.gov.in/hcservices/ 8) E.LATHA 9) K.BHUVESWARI 10) Y. SUGANTHI 11) R. JENNI RENU 12) N. SHANTHI 13) K. KALARANI 14) P. SUMATHI 15) M. SHANMUGASUNDARAM 16) K. CHANDRAVATHI 17) K. PALANIAMMAL 18) R. MURUGESAN 19) S. RADHA 20) B.SHENBAGAVALLI 21) G. DEVI 22) N. TAMILSELVI 23) S. RPABAKARAN 24) S. SUGANTHI 25) A. TAMILSELVAN 26) P. SHANMUGASUNDRAMOORTHY 27) P. THANGAMANI 28) M. SATHIYAVANIMUTHU 29) S. PONNUSAMY 30) P. RAJENDRAN 31) C. SENTHLKUMAR .. Petitioners in W.P.No.28989/08 ARUL REGINA .. Petitioner in W.P. 29020/08 R.JESLINE JEBA SELVI .. Petitioner in W.P.29354/08 A.JOHN KONNEDY .. Petitioner in W.P.No.29449/08 G.THINAGARAJ .. Petitioner in W.P.NO.30131/08 A.POLICARP MARY .. Petitioner in W.P.No.30219/08 Vs 1.The Director of Elementary Education, Office of the Directorate of Elementary Education, College Road, Chennai. 2.The District Collector, Salem, Salem District. https://hcservices.ecourts.gov.in/hcservices/ 3.The District Elementary Educational Officer, District Elementary Education Office, Salem, Salem District. 4.The Chief Elementary Education Officer, Salem, Salem District. 5.The Revenue Divisional Officer, Salem, Salem District. ...Respondents in W.P.No.1144 and 1145/09 1. THE DIRECTOR TAMILNADU SCHOOL EDUCATION, CHENNAI. 2. THE ASSISTANT DIRECTOR EMPLOYMENT EXCHANGE SALEM DISTRICT. 3. THE CHIEF EDUCATIONAL OFFICER SALEM TALUK, SALEM DISTRICT. .. Respondents in W.P.No.456/09 1 THE DIRECTOR OF ELEMENTARY EDUCATION, COLLEGE ROAD, CHENNAI - 6. 2 THE CHIEF EDUCATIONAL OFFICER SALEM. 3 DISTRICT ELEMENTARY EDUATIONAL OFFICER, SALEM. .. Respondents in W.P.No.505/09 1 THE DIRECTOR OF ELEMENTARY EDUCATION, COLLEGE ROAD, CHENNAI-6 2 THE DISTRICT ELEMENTARY EDUCATION OFFICER, KARUR DISTRICT, KARUR. 3 THE DISTRICT COLLECTOR KARUR DISTRICT, KARUR. .. Respondents in W.P.Nos.4978/09 and 26621/08, 26622/08, 26623/08, 26624/08 26625/08, 26626/08. https://hcservices.ecourts.gov.in/hcservices/ 1 THE DIRECTOR OF ELEMENTARY EDUCATION, COLLEGE ROAD, CHENNAI-6. 2 THE DISTRICT ELEMENTARY EDUCATIONAL OFFICER, SALEM. .. Respondents in W.P.No.10400/09 1. THE DIRECTOR OF ELEMENTARY EDUCATION, DPI CAMPAUS, COLLEGE ROAD, CHENNAI-6. 2 THE CHIEF EDUCATIONAL OFFICER KARUR DISTRICT, KARUR. 3 THE DISTRICT ELEMENTARY EDUCATION OFFICER, KARUR DISTRICT, KARUR. 4 THE DISTRICT EMPLOYMENT OFFICER, KARUR DISTRICT, KARUR. .. Respondents in W.P.14056/09 1 THE CHIEF EDUCATIONAL OFFICER UDHAGAMANDALAM, THE NILGIRIS DISTRICT. 2 DISTRICT ELEMENTARY EDUCATIONAL OFFICER, COONOOR, THE NILGIRIS DISTRICT. .. Respondents in W.P.Nos.12843/08 & 12844/08 1. THE DIRECTOR OF ELEMENTARY EDUCATION, DIRECTORATE OF ELEMENTARY EDUCATION NUNGAMBAKKAM CHENNAI. 2 THE DISTRICT COLLECTOR ERODE AND DT. 3 THE DISTRICT ELEMENTARY EDUCATIONAL OFFICER DISTRICT ELEMENTARY EDUCATION OFFICE ERODE. 4 THE CHIEF ELEMENTARY ...RESPONDENTS IN WP.NOS.26650 EDUCATION OFFICER, 26551/08, AND 29354/08 AND ERODE. RESPONDENTS 1 TO 4 IN W.P. 30131/08 https://hcservices.ecourts.gov.in/hcservices/ 1. THE DIRECTOR OF ELEMENTARY EDUCATION D.P.I. CAMPUS COLLEGE ROAD, NUNGAMBAKKAM CHENANI 600 006 2 THE CHIEF EDUCATIONAL OFFICER SALEM DISTRICT SALEM 3 THE DISTRICT COLLECTOR SALEM SALEM DISTRICT ...RESPONDENTS IN WP.NO.28477/08 1. THE DIRECTOR OF SCHOOL EDUCATION,CHENANI -6 2 THE CHIEF EDUCATIONAL OFFICER ERODE, ERODE DISTRICT 3 THE DISTRICT EDUCATIONAL OFFICER ERODE, ERODE DISTRICT ...RESPONDENTS IN W.P.NO.28989/08 1. THE DIRECTOR OF ELEMENTARY EDUCATION GOVT. OF TAMILNADU D.P.I. COMPLEX, COLLEGE ROAD CHENNAI. 2 THE DISTRICT CHIEF EDUCATION OFFICER DISTRICT CHIEF EDUCATION OFFICE KANCHIPURAM. 3 THE DISTRICT ELEMENTARY EDUCATION OFFICER DISTRICT ELEMENTARY EDUCATION OFFICE KANCHIPURAM. ... RESPONDENTS IN W.P.NO.29020/08 1. THE DIRECTOR OF ELEMENTARY EDUCATION D.P.I. CAMPUS COLLEGE ROAD,NUNGAMBAKKAM, CHENNAI - 6 2 THE DISTRICT EDUCATION OFFICER SALEM DISTRICT, SALEM 3 THE CHIEF EDUCATIONAL OFFICER SALEM DISTRICT SALEM 4 THE DISTRICT COLLECTOR ... RESPONDENTS IN SALEM, SALEM DT. W.P.NOS.15448/08, 16161/08, 20091/08 https://hcservices.ecourts.gov.in/hcservices/ 1. THE DIRECTOR OF ELEMENTARY EDUCATION, DIRECTORATE OF ELEMENTARY EDUCATION,CHENNAI 2 THE DISTRICT COLLECTOR, KARUR DISTRICT, KARUR. 3 THE DISTRICT ELEMENTARY EDUCATIONAL OFFICER, DISTRICT ELEMENTARY EDUCATION OFFICE, KARUR 4 THE CHIEF ELEMENTARY ... RESPONDENTS IN EDUCAION OFFICER, KARUR W.P.NOS.29449/08 THE REVENUE DIVISIONAL OFFICER, ...5TH RESPONDENT ERODE DISTRICT, ERODE. IN W.P.NO.30131/08 1. THE CHIEF EDUCATIONAL OFFICER DHARMAPURI. 2 THE DISTRICT ELEMENTARY EDUCATIONAL ...RESPONDENTS IN OFFICER,DHARMAPURI. W.P.NO.30219/08 Writ Petition under Article 226 of the Constitution of India praying for Writs of mandamus, directing the third respondent to appoint the petitioner to the post of Secondary Grade Teacher in Salem District pursuant to he proceedings of the fourth respondent in Na.Ka.No.8705/A3/2007 dated 20.02.2008.(in W.P.Nos.1144 and 1145/09) 2.directing the 3rd respondent to issue an order of appointment to the petitioner, to the post of Secondary Grade Physical Education Teacher in any of the schools under the 3rd respondent (in Wp.No.456/09) 3.directing the respondents to appoint the petitioner as the Middle School Teacher for the vacancies in the District of Salem, on the bais of the results selecting the petitioner on 26.02.2008 and the selection lit published there under, with retrospective effect from 26.02.2008 with all such benefits accrued to the petitioner within a time frame (in W.P. 505/09) 4.directing the 2nd respondent to appoint the petitioner to the post of Secondary Grade Teacher based on the selection already made on 28.2.2008 in pursuance to the proceeding of the respondent in Na.Ka.No.5040/A2/2007 dated 19.2.2008 (in WP.4978/09) https://hcservices.ecourts.gov.in/hcservices/ 5. directing the respondents to appoint the petitioner to the post of Secondary Grade Teacher in Salem District.( in W.P.10400/09) 6. directing the Respondents to give letter of appointment to the petitioner as Secondary Grade Teacher in Malayalam Medium on the basis of the certificate verification took place on 26.2.2008 as have been issued to other persons who appeared along with the petitioner on 26.2.2008.( in WP.Nos.12843/08 and 12844/08) 7. directing the respondents to forthwith issue appointment orders to the petitioners to the post of Secondary Grade Teachers in the existing vacancies in the Primary and Middle Schools of Panchayat Union and Town panchayat of Salem district based on the call letters of the 3rd respondent dt 20.2.2008 & 20.2.2008 & 21.2.2008, 20.2.2008 in Na.Ka.No.8705/A3/2007 by considering and passing orders on the representation of the petitioners dt 26.5.2008 ( in W.P.M.P.No. 15448/08, 16161/08, 20091/08, 28477/08) 8. directing the 1st respondent to pass orders on the requisition letter of the 2nd respondent in proceedings in Na.Ka. No.5070/A2/2007 dt 25.6.2008 seeking orders to issue appointment order to the petitioner who has already been selected on 28.2.2008 for the post of Secondary Grade Teacher.(in WPs.26621/08, 26622/08, 26623/08, 26624/08, 26625/08, 26626/08) 9. directing the 3rd respondent to appoint the petitioner to the post of Secondary Grade Teacher in pursuant to the proceedings of the 3rd respondent in Na.Ka.No.7866/A2/2007 dt 25.2.2008. (in W.P.Nos.26650/08, 26651/08) 10. directing the respondents to give letter of appointment to the petitioner as Secondary Grade Teacher on the basis of the selection made and certificates verified on 6.3.08 and confer all the consequential benefits (in W.P.No.28989 of 2008) 11. directing the 3rd respondent to appoint the petitioner as Secondary Grade Teacher in pursuant to the interview held on 27.10.2006 and his subsequent selection (in W.P.No.29020 of 2008) 12. directing the third respondent to appoint the petitioner to the post of secondary Grade Teacher in pursuant to the proceedings of the third respondent in Na.Ka.NO. 5070/A2/2007 dated 19-02-2008.(in W.P.29449/08) 13. directing the third respondent to appoint the petitioner for the post of secondary Grade teacher in Erode District by taking into consideration of the proceedings of the 2nd https://hcservices.ecourts.gov.in/hcservices/ respondent in Na.Ka. No.8421/2008/A3 dated 17-06-2008 order passed by this Honourable court in W.P.NO. 3701 of 2008 dated 09- 04-2008 and the consequent restoration of petitioner's name in the Live Register maintained by the Employment exchange Erode. (in W.P.30131/08) 14. directing the respondents to give appointment to the petitioner as Secondary Grade Teacher from the date on which the persons who participated along with the petitioner for certificate verification and given appointment as Secondary Grade Teacher(in W.P.30219 /08) Writ of certiorarified mandamus:- calling for the records relating to Na.Ka.No.7360/L3/09 dt.24.4.2009 passed by the First Respondent and quash the same and direct the First respondent to appoint the petitioner in the post of Secondary Grade Teacher with effect from 28.2.2008 on par with the petitioner's juniors S.Rajalakshmi and P.Sudha with all consequential benefits. (W.P.14056/09) For Petitioners : W.P.Nos.26650,26651,29354 29449 & 30131 of 2008 W.P.Nos.1144,1145 of 2009 : Mr.S.Ganesh W.P.Nos.26621 to 26626 of 2008 W.P.No.4978 of 2009 :Mr.K.A.Mariappan W.P.Nos.12843,12844,28989 and 30219 of 2008 :Mr.S.Mani W.P.15448,16161,20091 and 28477 of 2008 :Mr.K.Selvaraj W.P.No.29020 of 2008 : Mr.A.S.Chakravarthi W.P.456 of 2009 : P.Gunaraj W.P.No.505 of 2009 : S.Subbiah W.P.No.10400 of 2009 : G.Jeremiah W.P.No.14056 of 2009 : P.V.S.Giridhar for M/s. P.V.S.Giridhar Associates For Respondents :Mr.A.C.Manibharathi,G.A. for the state C O M M O N O R D E R Heard both sides. Since the issue involved in all these writ petitions are common, all the writ petitions were heard together and a common order is passed. 2. In all these writ petitions, the names of the petitioners were sponsored to the post of Secondary Grade Teacher by the https://hcservices.ecourts.gov.in/hcservices/ respective district Employment Exchange for selection held for the year 2007-2008. In some of the cases, the petitioners' certificates which were already verified were sent for further verification since they had migrated from one Employment Exchange to another Employment Exchange. The Government had directed verification of such certificates in case there was any suspicion. But in no case, an appointment order was given in favour of the petitioners. In some of the cases, after the certificate verification, though the certificate of migration given by the petitioners was also found to be genuine, but there was still some dispute. When the petitioners were about to be given their appointment orders, the writ appeal in W.A.No.119 of 2008 filed by the Unemployed Secondary Grade Teachers Welfare Association, Society Reg.No.48.2007 v. The State of Tamil Nadu, rep by its Secretary came to be heard by a Division Bench presided by P.K.Misra,J.(as he then was) before Madurai Bench. 3. The contention of the said Association made before the single Judge as well as before the Division Bench was that the order of the State Government made in G.O.Ms.No.447 Education Science and Technology Department dated 16.07.1996 in so far as it restricts the selection and appointment to the post of Secondary Grade Teachers on the basis of District Wise Seniority maintained by the Employment Exchange was ultra vires and unconstitutional. The appeal was allowed by the Division Bench vide its judgment dated 14.05.2008. The said judgment was subsequently reported in 2008 Writ L.R. 747. 4. The Division Bench found fault with the action of the State Government and it was held that selection of candidates by restricting the choice to various district Employment Exchange based on their residential qualification was violative of Articles 16(2), 14 and 19(1) of the Constitution. The Division Bench in Paragraphs 34 and 35 held as follows: 34. As a matter of fact the decision of the Supreme Court in (2002) 6 SCC 562 (cited supra) is a complete answer to such imaginary excuses putforth by the State. In a very recent decision, the Supreme Court has expressed its grave concern relating to possible balkanization of the country because of the spread of non-tolerance displayed in some parts of the country. The submissions which are now being made by the learned Additional Advocate General or the counsel for the Interveners bring only to fore the above unwelcome trend. We do not think that such a course can ever be countenanced. As a citizen of India one has to imbibe the spirit of the Constitution and follow the adage made famous by no less a personality than Justice Krishna Iyer that "Kashmir to Kanyakumari, India is one". https://hcservices.ecourts.gov.in/hcservices/ However, a reading of the counter filed by the State Government and the stand so painstakingly puforth by the learned Addl.Advocate General, though more in desperation rather than with any conviction, one gets the feeling that even though Kashmir to Kanyakumari – India may be one, Dharmapuri to Kanyakumari – Tamil Nadu is not one. The net result of the policy hitherto followed by some curious logic is that a duly qualified person, who is born in one part of the Tamil nadu and gets himself registered in the district of his residence, cannot seek employment under the Government in another district of the very same State. If this does not amount to denial of right to equality under Article 14 and more particularly Article 16(2) and the right under Article 19(1), we fail to imagine what else can be the denial of such fundamental rights. 35. In view of the above discussion, in our considered opinion, confining the question of selection to the candidates sponsored by the Employment Exchange of a particular district without considering the willingness, availability and suitability of similar candidates who have been registered in the other district employment exchanges, is clearly violative of fundamental rights and, therefore, cannot be countenanced. The impugned G.O.Ms.No.447, dated 16.07.1996 is liable to be quahsed. Accordingly, a direction is issued to consider the question of selection of eligible candidates, even though such candidates' names have been registered in other District Employment Exchanges. For the aforesaid purpose, obviously intimation is required to be given to all the District Employment Exchanges and public advertisement throughout the State is required to be made so that any willing candidate even though registered in a different district can offer his candidature." (Emphasis added) 5. Before the Division Bench, it was also pointed out that at the time of hearing of the writ petitions and writ appeals, several appointments were already been granted based upon the seniority in the district Employment Exchanges and therefore, their appointments should not be disturbed. 6. The Division Bench after holding that the selection based upon the seniority in the District Employment Exchanges was ultra vires and unconstitutional, in paragraph 36, held as follows: "36.The next question is regarding the selection already made. When the matter was entertained by the learned single Judge, an order of interim stay had https://hcservices.ecourts.gov.in/hcservices/ been granted. Subsequently, however, when the writ petitions were dismissed and the Division Bench did not pass any order of interim stay but only observed that any selection made shall be subject to the result of the writ appeals, many such appointments have been made. Even though we do not appreciate the alacrity with which such appointments have been made in the interregnum by taking advantage of the fact that no specific order of stay was granted, we feel in the peculiar factual situation and particularly keeping in view the fact that hitherto such selections have been made for number of years, the question of termination of the persons already appointed is left to the discretion of the State Government. However, in respect of the vacancies yet to be filled up, the State Government as well as other authorities are required to make the selection only after inviting applications from all over the State." (Emphasis added) 7. In so far as the petitioners case are concerned, they were not given with any appointment order. In some cases, verification process was continued. In some other cases, after verification, candidates were awaiting for appropriate appointment orders. Hence, they sent representations to the respondents seeking for grant of appointment orders. When the same was not forthcoming, they have filed the present writ petitions seeking for a writ of mandamus or any other appropriate writ before this Court to the respondents to give appointments to the petitioners as Secondary Grade Teachers from the date on which persons who had participated along with the petitioners for certificate verification and got their appointment as Secondary Grade Teachers. 8.On notice from this Court, in some of the writ petitions, the third respondent has filed a counter affidavit. In the counter affidavit, the stand taken by the respondent was that since this Court had declared the selection based upon the Employment Exchange seniority of a particular revenue district was unconstitutional and the Supreme Court not having granted stay order, the question of grant of any appointment to the petitioners may not arise. It is also brought to the notice of this Court as against the Division Bench order in Unemployed Secondary Grade Teachers Welfare Association, Society's case (cited supra) the State Government of Tamilnadu went on appeal in Special Leave to Appeal (Civil) Nos.18227 and 18228 of 2008. 9.The Supreme Court on 20.10.2008 passed an interim order with the following effect:- Leave granted. In so far as the applications for impleadment, they shall be brought up along with the main matters. Having regard to the fact that a large number of https://hcservices.ecourts.gov.in/hcservices/ vacancies in the State have remained unfilled, the State Government sought leave to fill the posts. On the submissions made, we make the following interim order, accepting the State's proposal: Appointment to the post of Secondary Grade Teachers may be made by the State Government, by calling the list of eligible persons from all the District Employment Exchanges and by newspaper Public Advertisements throughout the State so that any willing candidate even though registered in different Districts can participate in the selection. It shall be made clear in the Public Advertisement that the selection would be based on the Employment Exchange seniority. It shall also be made clear that any person selected and appointed in a particular School within a District cannot aspire for or seek transfer to another School outside the District." This aforesaid arrangement will apply for any recruitment to be made pending disposal of these appeals". (Emphasis added) 10.Even before the Supreme Court, some of the candidates sought for impleadment and those applications were tagged on with the main appeal. Therefore, in the context of the State taking umbrage under the order of the Division Bench (which was not stayed by the Supreme Court), the present petitioners have made their contentions. 11.On behalf of the petitioners arguments were addressed by Mr.P.Gunaraj, Mr.K.A.Mariappan, Mr.P.V.S.Giridhar, Mr.K.Selvaraj, Mr.G.Jermiah, Mr.S.Ganesh, Mr.S.Mani and the respondents were represented by Mr.A.C.Manibharathi, learned Government Advocate. 12.On behalf of the petitioners, it was contended that this Court can mould the relief in the light of the observations made by the Division Bench in Paragraph 36 of the order extracted above. It was stated that the Division Bench was aware that there were candidates who were selected and candidates who were also appointed. The concept of selection and appointment were noted on an interchangeable basis. It was also stated that the petitioners for no fault of them should not be denied the appointment only because, in some cases, the certificate verification was delayed by the authorities. It was also stated that some of the persons who stood in queue along with the petitioners have been given appointment. Therefore granting appointment to one set of persons and denying the same to others in the same class is violative of Article 14 of the Constitution. 13.In support of his contention, Mr.P.V.S.Giridhar, learned counsel for some of the petitioners brought to the notice of this Court the following decisions of the Supreme Court, wherein, the Court taking into account circumstances of such cases had granted relief. https://hcservices.ecourts.gov.in/hcservices/ 1.Purushottam v. Chairman, M.S.E.B and another (1999) 6 SCC 49 2.Bhupendra Singh v. Regional Joint Director of Education and others (2006) 10 SCC 298. 3.Sonia v. Oriental Insurance Co. Ltd and others (2007) 10 SCC 627 14.In the first case reported in (1999) 6 SCC 49, the Supreme Court held that the right of a person to be appointed against the post to which he was selected cannot be taken away on the pretext that the said panel in the meantime had expired or that the post had already been filled up by somebody else. In that case as against the selection of a candidate some other candidate had been appointed. The Supreme Court in paragraph 4 of the said judgment held that usurpation of the post by somebody else is not on account of any defect on the part of the appellant, but on the erroneous decision of the employer himself. In that view of the matter as the appellant's right to be appointed to the post was illegally taken away by the employer, the impugned order was set aside and relief was granted. In the present cases, in the teeth of a decision of the Division bench (not stayed by the Supreme Court), the appointments or selections made cannot be valid appointment. 15. The second decision reported in (2006) 10 SCC 298 arose out of decline of approval by the authorities for appointment made to the post of Assistant Teacher. It was contended that the Joint Education Director refused to grant approval on the ground that no approval was taken prior to the selection of the appellant. The Basic Shiksha Adhikarai (BSA) in that case clarified the position by his letter dated 13.09.1999 to the Joint Education Director. It was contended that the appointment was made after following proper procedure and that BSA had taken the decision with the approval of District Inspector of Schools (DIOS). In that context, the Supreme Court held that in the particular facts of the case, since the recruitment process was initiated prior to the Government's order and since DIOS had himself referred the matter of selection to the post of Assistant Teacher to BSA and in view of the clarification given by BSA, relief was granted to the candidate in question. The said decision has no relevance to the case on hand. 16.In the third decision reported in (2007) 10 SCC 627, the question arose in the context of a Schedule Caste candidate claiming vacancy reserved for Scheduled Tribe post in terms of the promotional policy. Under the relevant time, the policy permitted conversion of a ST vacancy into SC vacancy. But subsequently, by an Office Memorandum the policy was reversed. It was noted that such an Office Memorandum cannot over ride the advertisement dated 30.10.2003 inviting applications for the post to the prejudice of the candidate who is midway through his recruitment process. Therefore, it was held that the candidate https://hcservices.ecourts.gov.in/hcservices/ who applies for a particular post will be governed by the Rule prevailing on the date on which applications were invited and no retrospective effect can be given to the revised policy. 17. The question for consideration in the present cases is not whether the petitioners have gone through the selection process or not. If at all there is any selection, the selection was purely based upon Employment Exchange seniority. But the non- issuance of appointment orders cannot be raised in the teeth of the Division Bench judgment holding the field. 18.It must be noted that the Division Bench had held the policy of recruitment as per G.O.447, Education, dated 16.7.96 itself was unconstitutional and violative of Article 16(2) of the Constitution. The