IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.02.2010 CORAM: THE HON'BLE MR.JUSTICE K.CHANDRU W.P.NO.2138 OF 2010 The Welfare Association of Persons Awaiting the post of Village Administrative Officer of Tamil Nadu Represented by its Secretary Mr.S.Muthukumar Having registered office at No.34/30-A, Pillaiyar Koil 1st Street, Ekkattuthangal, Chennai – 600 032. ... Petitioner Versus 1.The Secretary to Government Revenue Department Fort St. George, Chennai – 600 009. 2.The Special Commissioner and Commissioner of Revenue Administration Chepauk, Chennai – 600 005. ... Respondents PRAYER: Writ petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Mandamus directing the respondents to appoint the members of the petitioner's Association for the post of Village Administrative Officer as has been done in the case of 39 posts which were filled up by the Government by G.O.Ms.No.21, Revenue Service 7(1) Department, dated 13.01.2009. For Petitioner : Mr.V.Bhiman for M/s.Sampathkumar & Associates For Respondents : Mrs.C.K.Vishnu Priya Additional Government Pleader https://hcservices.ecourts.gov.in/hcservices/ O R D E R This writ petition emanates out of a misplaced sympathy earlier shown by this Court in issuing a direction to consider the petitioner's representation, inspite there being no order of the Government in favour of the petitioner while seeking such relief. 2. The members of the petitioner's Association, whose employment were curtailed by the Tamil Nadu Ordinance No.10/80 (subsequently backed by an Act) stood their employment snapped with effect from 14.11.1980. The said ordinance subsequently came to be challenged before the Supreme Court. The Supreme Court upheld the validity of the Act. But however it was observed that such of those part time Village Officers, who have lost their employment, if they are otherwise qualified, their cases can be considered for appointment to the new post of Village Administrative Officers. 3. Subsequently the deposed Village Officers formed an association and started urging the Government that persons who were employed on the cut off date, i.e. 14.11.1980 may be by fortituious circumstances and they were not in the post as on 14.11.1980 though they have several years of experience and therefore, the Government must consider the case of those persons also in the spirit with which the Supreme Court gave its direction. This persuaded the State Government to issue G.O.Ms.No.370, Revenue [Services 7(1)] Department dated 22.06.2005. 4. By virtue of the said order, the State Government initially appointed 469 persons in Category-I followed by 253 persons who were in the waiting list (Category-II) whose names were screened by the Screening Committee were also appointed by the Government. Thereafter, persons who were in the waiting list numbering 224 belonging to Category (III) were also appointed by giving necessary relaxation. 5. The State Government issued G.O.Ms.No.21, Revenue [Ser-7(1)] Department, dated 13.01.2009, in which 39 persons who are appointed temporarily as Village Officers on or before 14.11.1980 were also appointed by giving necessary relaxation. The legality or the justifiability of the said Government Order is not an issue before this Court. 6. The petitioner's Association has come before this Court seeking for a relief to direct the respondents to appoint members of its Association for the post of Village Administrative Officers in terms of G.O.Ms.No.21, Revenue [Ser-7(1)] Department, dated 13.01.2009. https://hcservices.ecourts.gov.in/hcservices/ 7. Heard the arguments of Mr.V.Bhiman, learned counsel for the petitioner and Mrs.C.K.Vishnu Priya, learned Additional Government Pleader taking notice for the respondents. 8. This Court is not inclined to entertain this writ petition for more than one reason. It is an admitted case that G.O.Ms.No.370, dated 22.06.2005 was an one time exercise and members of the petitioner's Association were not applicants pursuant to the said Government Order. Therefore, they cannot make any complaint that their case was not considered though their members were eligible. Their attempt to file a writ petition and get a direction at the admission stage so as to have their case considered without having regard to the merits cannot help them. Thereafter when a subordinate officer verified their records and sent proposals once again also will not helpful to the case of the petitioner's Association. 9. On the contrary, this Court had rejected number of writ petitions which were filed by persons who were seeking employment by coming to this Court but without making an application in terms of G.O.Ms.No.370 referred to above. The petitioner's case is no different from those cases. Merely because the petitioner came to this for a Writ of Mandamus, that itself cannot create any right in his favour. Conscious of their having failed to get into the service by sending appropriate petition before the cut off date, the petitioner's Association cannot come up with a plea that by G.O.Ms.No.21, Revenue [Ser-7(1)] Department, dated 13.01.2009, several persons have been appointed and the claim of the petitioner's Association was superior to their claims. Therefore, they should be appointed in terms of the Government Order. As already noted, the orders passed by the Government are not under challenge and therefore, this Court is not in a position to go into the legality or otherwise of that Government Order. 10. It is suffice to state that once the benefit of that Government order is not available, the cause of action for the petitioner's Association to compel the State Government to issue an order in their favour may not arise. The Supreme Court has held the High Courts should not pass such orders based upon orders issued by the State Government without going into the legality of such orders. In such circumstances, the change of discrimination or violation of Article 14 will not arise. 11. This position of law has been clarified by the latest judgment of the Supreme Court in SHANTI SPORTS CLUB & ANOTHER VS. UNION OF INDIA AND OTHERS reported in 2009 AIR SCW 6953. In paras 50 and 51 it was observed as follows: "50. The plea of discrimination and violation of https://hcservices.ecourts.gov.in/hcservices/ Article 14 of the Constitution put forward by the appellants is totally devoid of substance because they did not produce any evidence before the High Court and none has been produced before this Court to show that their land is identically placed qua the lands on which Hamdard Public School, St. Xavier School, Scindia Potteries, etc., exist. In the representations made to different functionaries of the Government and DDA, the appellants did claim that other parcels of the land have been de-notified and before the High Court a copy of notification dated 6.9.1996 issued under Section 48(1) was produced, but the said assertion and notification were not sufficient for recording a finding that their case is identical to those whose land had been denotified. The burden to prove the charge of discrimination and violation of Article 14 was on the appellants. It was for them to produce concrete evidence before the Court to show that their case was identical to other persons whose land had been released from acquisition and the reasons given by the Government for refusing to release their land are irrelevant or extraneous. Vague and bald assertions made in the writ petition cannot be made basis for recording a finding that the appellants have been subjected to invidious or hostile discrimination. That apart, we are prima facie of the view that the Government's decision to withdraw from the acquisition of some parcels of land in favour of some individuals was not in public interest. Such decisions had, to some extent, resulted in defeating the object of planned development of Delhi on which considerable emphasis has been laid by the Full Bench of the High Court and this Court. This being the position, Article 14 cannot be invoked by the appellants for seeking a direction to the respondents to withdraw from the acquisition of the land in question. Article 14 of the Constitution declares that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The concept of equality enshrined in that Article is a positive concept. The Court can command the State to give equal treatment to similarly situated persons, but cannot issue a mandate that the State should commit illegality or pass wrong order because in another case such an illegality has been committed or wrong order has been passed. If any illegality or irregularity has been committed in favour of an individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of this Court and https://hcservices.ecourts.gov.in/hcservices/ seek a direction that the same irregularity or illegality be committed in their favour by the State or its agencies/instrumentalities. In other words, Article 14 cannot be invoked for perpetuating irregularities or illegalities. In Chandigarh Administration vs. Jagjit Singh (1995) 1 SCC 745, this Court made a lucid exposition of law on this subject. The facts of that case were that the respondents, who had given the highest bid for 338 sq. yds. plot in Section 31A, Chandigarh defaulted in paying the price in accordance with the terms and conditions of allotment. After giving him opportunity of showing cause, the Estate Officer cancelled the lease of the plot. The appeal and the revision filed by him were dismissed by the Chief Administrator and Chief Commissioner, Chandigarh respectively. Thereafter, the respondent applied for refund of the amount deposited by him. His request was accepted and the entire amount paid by him was refunded. He then filed a petition for review of the order passed by the Chief Commissioner, which was dismissed. However, the Officer concerned entertained the second review and directed that the plot be restored to the respondent. The latter did not avail benefit of this unusual order and started litigation by filing writ petition in the High Court, which was dismissed on March 18, 1991. Thereafter, the respondent again approached the Estate Officer with the request to settle his case in accordance with the policy of the Government to restore the plots to the defaulters by charging forfeiture amount of 5%. His request was rejected by the Estate Officer. He then filed another writ petition before the High Court, which was allowed only on the ground that in another case pertaining to Smt.Prakash Rani, the Administrator had restored the plot despite dismissal of the writ petition filed by her. While reversing the order of the High Court, this Court observed as under:- "We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Since we have come across many such instances, we think it necessary to deal with such pleas at a little length. Generally speaking, the mere fact that the respondent- authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in https://hcservices.ecourts.gov.in/hcservices/ favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent- authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law – indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law – but even if it cannot be corrected,it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioner's case is similar to the other person's case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before the Court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the Court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the https://hcservices.ecourts.gov.in/hcservices/ order made or action taken in another person's case, which other person is not before the case nor is his case. In our considered opinion, such a course – barring exceptional situations – would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world".(Emphasis added) 51. Similar is the ratio of the judgments in Narain Das v. Improvement Trust, Amritsar (1973) 2 SCC 265,Gursharan Singh v.New Delhi Municipal Committee (1996) 2 SCC 459, Secretary, Jaipur Development Authority v. Daulat Mal Jain (supra), Yadu Nandan Garg v. State of Rajasthan and others (supra), State of Haryana v. Ram Kumar Mann [(1997) 3 SCC 321], Faridabad CT. Scan Centre v. D.G.Health Services [(1997) 7 SCC 752], Style (Dress land) v. Union Territory, Chandigarh [(1999) 7 SCC 89], State of Bihar v. Kameshwar Prasad Singh (2000) 9 SCC 94, Union of India v. International Trading Co. (2003) 5 SCC 437, Ekta Sakthi Foundation v. Govt. of NCT of Delhi (2006) 10 SCC 337, Sanjay Kumar Munjal v. Chairman, UPSC (2006) 3 SCC 42, K.K.Bhalla v. State of M.P. and others (2006) 3 SCC 581, National Institute of Technology v. Chandra Sekhar Chaudhary (2007) 1 SCC 93, Vice Chancellor, M.D.University, Rohtak v. Jahan Singh (2007) 5 SCC 77, State of Kerala and others v. K.Prasad and another (2007) 7 SCC 140, Punjab State Electricity Board and others vs. Gurmail Singh (2008) 7 SCC 245 and Panchi Devi v. State of Rajasthan and others (2009) 2 SCC 589." 12. Apart from this, on notice from this Court in respect of similar claims, the State Government was directed to take a definite stand as whether it intends to consider such cases once again. The Secretary to Government by its communication dated 11.01.2010 informed the learned Additional Government Pleader that the https://hcservices.ecourts.gov.in/hcservices/ Government did not propose to conduct any fresh exercise for such recruitment after the case of S.KUMARASAMY AND 14 OTHERS and hence no further claims can be considered. In paras 4 and 5 of the communication, it was informed as follows: "4.Further the High Court, Madras in its orders dated 9.2.09 in batch wp.nos filed by Tr.S.Kumarasamy and 14 others, while dismissing the WPs, has observed that the post of Village Administrative falls with in the purview of TNPSC and the present recruitment drive by conducting Special Qualifying Test is in deviation of Special Rules. However, the Hon'ble Court has observed that the writ petitioners may be given chance, if the Government decide to conduct one more Special Qualifying Test. 5.In this context, I am to state that there is no proposal at Government level to conduct a Third Phase of Special Qualifying test for those persons who were not appeared in the two tests already conducted by Principal Secretary and Commissioner of Revenue Administration." 13. In the light of the above, there is no case made out. Accordingly, this writ petition is dismissed. No costs. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ TK To 1.The Secretary to Government Revenue Department Fort St. George, Chennai – 600 009. 2.The Special Commissioner and Commissioner of Revenue Administration Chepauk, Chennai – 600 005. + 1 C.C TO MR. Sampathkumar and Associations, Advocate SR.NO.7857. W.P.NO.2138 OF 2010 KK[CO] KS 18/02/2010 https://hcservices.ecourts.gov.in/hcservices/