Case: COMMISSIONER OF MUNICIPAL ADMINISTRATION Vs. M.C. SHEELA EVANJALIN

Court for the reason that she is qualified for such post. The qualification for the post is not the criteria for appointment to the public post as any appointment to a public post cannot be made merely on the basis of possessing required educational qualifications. Any appointment to a public post can be made in the manner provided by the applicable recruitment rules in terms of law enacted under Article 309 of the Constitution of India or the Rules made in terms of proviso to Article 309 of the Constitution of India. In the absence of law and/or the rules, the executive instructions may also prescribe the eligibility conditions including the educational qualifications, experience, age limit for appointment to the post. In the present case, the respondent sought appointment as Revenue Assistant only on the basis of the fact that she possesses Diploma in Civil Engineering. The possession of Diploma in Civil Engineering is not entitlement to a public post unless such post is advertised and opportunity is given to all the eligible candidates to apply for the post in terms of applicable rules. 16. The fact remains that the Commissioner, Kuzhithurai Municipality has appointed the respondent as Revenue Assistant way back in 2006. However, the greed of the respondent for further promotion or appointment to the higher post did not end. She wanted to be appointed as Town Planning Officer again on the strength of her qualification of Diploma in Civil Engineering. As per the facts on record, the post of Town Planning Inspector is governed by the T amil Nadu Municipal Town Planning Service Rules, 1970 and that such post can be filled up either by way of promotion or by direct recruitment. The respondent is not in the feeder cadre for appointment to the post of Town Planning Inspector. In the absence of her being in feeder cadre, the High Court committed illegality in directing the consideration for appointment of the respondent to the post of Town Planning Inspector. It may be noticed that Town Planning Officer Grade II is a promotional post from amongst Town Planning Inspectors, who has worked in regular capacity for a period of ten years as per the Rules. 17. The stand of the respondent that the post of Town Planning Inspector is governed by the General Rules, is not made out as such Rules provide for promotion for the post of Revenue Assistant to the post of Revenue Inspector but not to the post of Town Planning Inspector. The Town Planning Assistant Draughtsman is the feeder cadre for promotion of Town Planning Inspector and that the Revenue Assistant is not the feeder cadre nor the respondent can claim any right to appointment only on the basis of her educational qualifications. 18. We find the manner in which the High Court has issued directions time and again shows utter disregard to the basic principles of law and then calling upon the officers to face contempt if the directions are not complied with. Such directions are wholly without any legal basis and, thus, cannot be sustained. 19. At this stage, it may be mentioned that learned counsel for the respondent referred to appointment to the post of Town Planning Inspector from the post of Revenue Assistant in the Nagercoil Municipality. We find that such appointment may be illegal and not warranted by the recruitment rules. It is well settled that there cannot be any parity in the illegality. Once the appointment to the post of Town Planning Inspector is not contemplated from amongst the Revenue Inspectors, the respondent cannot claim any parity on the basis of illegality committed by Nagercoil Municipality. Reference can be made to Chandigarh Administration & Anr. v. Jagjit Singh & Anr. (1995) 1 SCC 745 and Kulwinder Pal Singh & Anr. v. State of Punjab & Ors.(2016) 6 SCC 532 . This Court in Kulwinder Pal Singh, held as under: 16. The learned counsel for the appellants contended that when the other candidates were appointed in the post against dereserved category, the same benefit should also be extended to the appellants. Article 14 of the Constitution of India is not to perpetuate illegality and it does not envisage negative equalities. In State of U.P . v. Rajkumar Sharma [State of U.P . v. Rajkumar Sharma, (2006) 3 SCC 330 : 2006 SCC (L&S) 565] it was held as under: (SCC p. 337, para 15)?15. Even if in some cases appointments have been made by mistake or wrongly, that does not confer any right on another person. Article 14 of the Constitution does not envisage negative equality, and if the State committed the mistake it cannot be forced to perpetuate the same mistake. (See Sneh Prabha v. State of U.P . [Sneh Prabha v. State of U.P ., (1996) 7 SCC 426 ]; Jaipur Development Authority v. Daulat Mal Jain [Jaipur Development Authority v. Daulat Mal Jain, (1997) 1 SCC 35 ] ; State of Haryana v. Ram Kumar Mann [State of Haryana v. Ram Kumar Mann, (1997) 3 SCC 321 : 1997 SCC (L&S) 801] ; Faridabad CT Scan Centre v. DG, Health Services [Faridabad CT Scan Centre v. DG, Health Services, (1997) 7 SCC 752 ] ; Jalandhar Improvement Trust v. Sampuran Singh [Jalandhar Improvement Trust v. Sampuran Singh, (1999) 3 SCC 494 ]; State of Punjab v. Rajeev Sarwal [State of Punjab v. Rajeev Sarwal, (1999) 9 SCC 240 : 1999 SCC (L&S) 1171] ; Yogesh Kumar v. Govt. (NCT of Delhi) [Yogesh Kumar v. Govt. (NCT of Delhi), (2003) 3 SCC 548 : 2003 SCC (L&S) 346] ; Union of India v. International Trading Co. [Union of India v. International Trading Co., (2003) 5 SCC 437 ] and Kastha Niwarak Grahnirman Sahakari Sanstha Maryadit v. Indore Development Authority [Kastha Niwarak Grahnirman Sahakari Sanstha Maryadit v. Indore Development Authority, (2006) 2 SCC 604 ].)? Merely because some persons have been granted benefit illegally or by mistake, it does not confer right upon the appellants to claim equality.?

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]15. We find that the orders of the High Court are patently illegal and unwarranted. The respondent was initially appointed as Road Gang Mazdoor. She came to be appointed as Revenue Assistant in pursuance of the orders passed by the Madras High Court for the reason that she is qualified for such post. The qualification for the post is not the criteria for appointment to the public post as any appointment to a public post cannot be made merely on the basis of possessing required educational qualifications. Any appointment to a public post can be made in the manner provided by the applicable recruitment rules in terms of law enacted under Article 309 of the Constitution of India or the Rules made in terms of proviso to Article 309 of the Constitution of India. In the absence of law and/or the rules, the executive instructions may also prescribe the eligibility conditions including the educational qualifications, experience, age limit for appointment to the post. In the present case, the respondent sought appointment as Revenue Assistant only on the basis of the fact that she possesses Diploma in Civil Engineering. The possession of Diploma in Civil Engineering is not entitlement to a public post unless such post is advertised and opportunity is given to all the eligible candidates to apply for the post in terms of applicable rules.The fact remains that the Commissioner, Kuzhithurai Municipality has appointed the respondent as Revenue Assistant way back in 2006. However, the greed of the respondent for further promotion or appointment to the higher post did not end. She wanted to be appointed as Town Planning Officer again on the strength of her qualification of Diploma in Civil Engineering. As per the facts on record, the post of Town Planning Inspector is governed by the T amil Nadu Municipal Town Planning Service Rules, 1970 and that such post can be filled up either by way of promotion or by direct recruitment. The respondent is not in the feeder cadre for appointment to the post of Town Planning Inspector. In the absence of her being in feeder cadre, the High Court committed illegality in directing the consideration for appointment of the respondent to the post of Town Planning Inspector. It may be noticed that Town Planning Officer Grade II is a promotional post from amongst Town Planning Inspectors, who has worked in regular capacity for a period of ten years as per the Rules.The stand of the respondent that the post of Town Planning Inspector is governed by the General Rules, is not made out as such Rules provide for promotion for the post of Revenue Assistant to the post of Revenue Inspector but not to the post of Town Planning Inspector. The Town Planning Assistant Draughtsman is the feeder cadre for promotion of Town Planning Inspector and that the Revenue Assistant is not the feeder cadre nor the respondent can claim any right to appointment only on the basis of her educational qualifications.We find the manner in which the High Court has issued directions time and again shows utter disregard to the basic principles of law and then calling upon the officers to face contempt if the directions are not complied with. Such directions are wholly without any legal basis and, thus, cannot befind that such appointment may be illegal and not warranted by the recruitment rules. It is well settled that there cannot be any parity in the illegality. Once the appointment to the post of Town Planning Inspector is not contemplated from amongst the Revenue Inspectors, the respondent cannot claim any parity on the basis of illegality committed by Nagercoil Municipality.