Full Judgment
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
15. 12.2014 CORAM THE HONOURABLE MR. JUSTICE V.DHANAPALAN AND THE HONOURABLE MS. JUSTICE V.M.VELUMANI Writ Appeal (MD) No.1252 of 2014 & M.P.(MD) No.2 of 2014 C.Annadurai ... Appellant/ 5th Respondent Vs. 1.P.Durai ... 1st Respondent/ Petitioner 2.The District Collector, Sivagangai District, Sivagangai. 3.The District Employment Officer, Sivagangai, Sivagangai District. 4.The Revenue Divisional Officer, Sivagangai, Sivagangai District. 5.The Thasildar, Manamadurai Taluk, Sivagangai District. 6.Baskaran 7.Rajesh Kumar ... Respondents 2 to 7/ Respondents 1 to 4, 6 & 7 PRAYER : Writ appeal filed under Section 15 of Letters Patents Act to set aside the order dated 05.08.2014, passed in W.P.(MD) No.15206 of 2012. !For Appellant : Mr.K.K.Senthil ^For Respondent No.1 : Mr.L.Madhusudhanan For Respondent Nos.2 to 5 : Mr.A.K.Basakarapandian Special Govt. Pleader For Respondent Nos.6 & 7 : No Appearance :JUDGMENT
(Judgment of the Court was made by V.DHANAPALAN, J.) Heard Mr.K.K.Senthil, learned counsel for the appellant, Mr.L.Madhusudhanan, learned counsel for the first respondent and Mr.A.K.Baskara Pandian, learned Special Government Pleader for the respondents 2 to 5. Though notice was served on the respondents 6 and 7 and their names are also printed in the cause list, they have not chosen to appear either in person or through any pleader.
2. Questioning the order of appointment of the appellant/fifth respondent in writ petition, viz., C.Annadurai as Village Assistant, by the fifth respondent herein in his proceedings in Na.Ka.No.A1/860/2007, dated 15.09.2012, the first respondent/petitioner filed W.P.(MD) No.15206 of 2012 before this Court.
3. The learned Single Judge has allowed the said Writ Petition. Against the order of allowing the writ petition, the appellant/fifth respondent is before this Court by way of filing the present writ appeal.
4. The facts pleaded by the parties before the Writ Court read thus: (i) The first respondent is a permanent resident of Vedhiyarendhal Village, Manamadurai and he is fully eligible to the post of Village Assistant, which is called as "Thalaiyari" and has been called for the interview thrice, i.e., on 07.05.2007, 28.05.2012 and 10.09.2012 respectively. He claims employment seniority from 1992 and is well acquainted to drive bicycle and therefore, no other reasons, to omit him for the selection. (ii) Firstly, the fifth respondent called for the post of Village Assistant in the year 2007, vide his proceedings in Na.Ka.No.1/860/2007, dated 20.04.2007. The first respondent participated in the said interview held on 07.05.2007. Though the first respondent possessed all the requirement and additional qualification of cycling, he did not receive any communication. Thereafter, the fifth respondent once again called for interview for the said post on the due recommendation of the third respondent Employment Exchange, vide his Communication No.Oo.Mu.(A1)/860/12, dated 18.05.2012 and again the first respondent appeared for the interview on 28.05.2012 at 10 a.m. with relevant documents. Though the first respondent was fully eligible, as per seniority for the said post, he has not been selected by the fifth respondent and the seventh respondent is very junior to the first respondent, who was appointed by the fifth respondent. (iii) Thereafter, the fifth respondent called for interview on the sponsorship of the first respondent's name by the Employment Exchange vide Memorandum in Na.Ka.No.A1/860/2007, dated 01.09.2012. In this time also, the first respondent participated in the interview on 10.09.2012 with fullest hope, but he was not selected for the post of Village Assistant. However, the appellant was selected as Village Assistant for P.Alangulam Village by the fifth respondent, by his proceedings in Na.Ka.No.A1/860/2007, dated 15.09.2012 and he is also a Junior to the first respondent as per seniority. In all the categories, the first respondent is qualified to the said post. Further, the sixth respondent was appointed by the fifth respondent in the native place of the first respondent, viz., Vedhyarenthal on the ground that he is belonging to Most Backward Category. Hence, the first respondent has filed the writ petition challenging the appointment of the appellant/fifth respondent.
5. On various grounds, the appointment of the appellant/fifth respondent for the post of Village Assistant, made by the fifth respondent was assailed as illegal and the same is liable to be set aside particularly, on the ground of non-consideration of employment seniority.
6. The fifth respondent has filed a counter affidavit informing that the writ petition has been filed to declare the selection process for the post of Village Assistant in Manamadurai Taluk, as per the publication, dated 04.11.2011, in the daily news magazine viz., Thina Thanthi, as null and void, since the entire selection is based on G.O.Ms.No.155, Revenue [Service 8(1)]. Department, dated 26.03.2010 and that the publication made in the newspaper, which is a press release made by the Employment Department, was only challenged in the writ petition and the same is consequential one to the above said Government Order and that the said Government Order was not challenged in the writ petition.
7. The fifth respondent in his counter affidavit has further stated that from 06.12.2006 to 31.07.2009 about 2174 Village Assistant posts were vacant in Tamil Nadu Revenue Department and because of the vacancy, work of the Revenue Department in the grass root level was paralyzed and hence, it was decided to fill up the said posts through the Employment Exchanges from the eligible candidates and that as the Employment Exchange is established by the Government by an enactment with a motive to register the names from the youths of the State to provide Government Employment and enlist them in a live roll and that the duty of the Employment Exchange is to sponsor the candidates according to the request of the employer from time to time from its live roll and that all the aspirants, who wish to get a job in the Government, can register their names in the live roll of the Employment Exchange and has to wait for his/her turn for employment and that in Manamadurai Taluk 10 Thalayari posts were filled up in the existing vacancies based on the above said Government Order and the District Employment Exchange, Sivagangai District, sponsored candidates in the ratio of 1:5 on following 200% communal roster system from their live rolls based on the seniority, educational qualification, age and among them one candidate for each post of Village Assistant was selected in the interview and that the call letters were issued to the candidates on 18.05.2012 and requested the respective candidates to appear for the interview at the Taluk Office on 28.05.2012, at about 10 a.m.
8. The fifth respondent has further stated that as per the said Government Order, he has made a request to the Employment Exchange, Sivagangai, to sponsor the eligible candidates for the post of Village Assistant and that he has interviewed the candidates sponsored by the Employment Exchange and selected the appropriate candidate and the first respondent's name was not found in the list sponsored by the second respondent and he was interviewed on the above said date and was not selected to be appointed as Village Assistant, as he was not Senior in the Employment Registration and that the seventh respondent has been appointed as Village Assistant in Elanutrimangalam Village and his Enrollment Number is 4033/2003 and the first respondent has been placed at P.Alangulam and his Enrollment Number is 5159/1999 and the first respondent is working at Vedhiyarendhal Group, which comes under the Manamadurai Taluk and in different firka (Revenue Sub-Taluk) and that one Muthupandi has been appointed as Village Assistant at Melanettur, his Enrollment Number is 275/2009. Since the said person was a resident of that Village, he was given priority, besides, he is a differently abled person and capable to drive bicycle.
9. The fifth respondent has also stated that the selection or recruitment is made through the Employment Exchange, only on the motive to provide Employment to the rural poor, who registered their names in the Employment Exchange with a dream to obtain a Government Job and hence, providing an opportunity to the rural poor, who are having minimum Educational Standard of 10th fail, is not bad or illegal one, to be declared as null and void and that in the Modern Era, all the well educated youths prefer their jobs at Multi National Companies and they like this type of jobs in the ground level and hence, the Government also have no other option except to approach the Employment Exchange and that since the Government or an Employer is in a compelling situation to select eligible, best and suitable candidate for a post and all the persons, who were sponsored for interview also not claim any right for any posting based on his/her sponsorship. Further, imposition of restrictions and fixing eligibility and qualifications are the prerogative of the Employer/Government which cannot be challenged by any one and that though providing employment is the duty of the Government, imposing conditions or putting restrictions, is also the duty of the Government in order to provide reasonable opportunity to the weaker sections of the rural poor and therefore, he prayed for dismissal of the writ petition.
10. The learned Single Judge on considering every facts, ultimately allowed the writ petition quashing the impugned order, dated 15.09.2012 passed by the fifth respondent herein appointing the appellant/fifth respondent and directed to issue appointment order to the first respondent/petitioner as Village Assistant as against the said vacancy within a period of eight weeks from the date of receipt of a copy of that order.
11. On the above background pleadings, we have heard the learned counsel for the parties and perused the records.
12. Mr.K.K.Senthil, learned counsel for the appellant would vehemently contend that the employment seniority is not only the criteria to be followed and it must be adhered to the prescribed qualification and the norms for selection of the post.
13. Controverting the above submission, learned counsel for the first respondent would contend that the the first respondent enrolled in the Employment Exchange in the year 1992, having studied upto X Standard and hailing from a poor Village, waited for his turn to get his appointment. On the contrary, the fifth respondent has considered the sixth respondent out of turn and against the employment seniority.
14. Mr.A.K.Baskara Pandian, learned Special Government Pleader appearing for the respondents 2 to 5 while justifying the stand of the fifth respondent submitted that the selection was in accordance with law. However, there is no dispute that the appellant is junior to the first respondent and he has also pointed out that as per qualification, the selection has been made.
15. It is seen that a circumference of the facts would reveal that there was a recruitment process for 10 posts of Village Assistants in the State of Tamil Nadu in the Revenue Department to the various Villages, published in the daily news magazine viz., Thina Thanthi on 04.11.2011, in the ratio of 1:5 on following 200% communal roster system from their live rolls based on the seniority, educational qualification, age and among them one candidate for each post of Village Assistant was selected in the interview and the call letters were issued to the candidates on 18.05.2012 requesting the respective candidates to appear for the interview at the Taluk Office on 28.05.2012, at about 10 a.m., as per the Government Order in G.O.Ms.No.155, Revenue [Service 8(1)]. Department, dated 26.03.2010 and the process has been commenced and in that process, the fifth respondent selected the first respondent for the post of Village Assistant and the same has been questioned by the first respondent/writ petitioner.
16. The learned Single Judge on looking into the various factors particularly, from the verification of material documents, and the registration of the Employment Exchange, came to a clear conclusion that the first respondent/writ petitioner was far senior, as he registered his name in the Employment Exchange on 20.01.1992. As he was a far senior to the appellant as well as other private respondents and ultimately, the Writ Court came to the conclusion that the writ petitioner has to succeed and allowed the writ petition accordingly.
17. It is also contended that as per the Government Order in G.O.(Ms) No.521, Revenue Ser.VII (2) Department, dated 17.06.1998, the satisfaction of the appointing authority regarding the character and antecedents of the persons being called for interview is considered for being appointed to a post, but the learned Judge has not considered the same and when the Government letter dated 07.11.2008 prescribing the ratio pertaining to number of candidates called for from the Employment Exchange as 1:5, the said aspect has not been adverted to by the learned single Judge in proper perspective.
18. The relevant Rules for consideration of selection and appointment as Village Assistant is Tamil Nadu Village Servants Service Rules 1980. Sub- section 1 of Section 53 provides Constitution as per which, the service shall consist of the post of Village Assistants in the State of Tamil Nadu. The appointment to the post shall be made by direct recruitment through the Employment Exchange concerned as per sub-section 2 and as per sub-section 3, the appointing authority is the Tahsildar. Reservation of appointment has been contemplated under sub-section 4. Age limit has been provided under sub-section 5. Under sub-section 6, Educational Qualification has been provided, which inter alia provides no person shall be eligible for appointment to the post unless, he has passed V Standard in a recognised school, viz., a school maintained by or opened with the sanction of the Government of Tamil Nadu, to which recognition has been accorded by the Director of School Education under the Tamil Nadu Educational Rules with sufficient knowledge to read and write Tamil. The other educational qualification has been provided under sub-section 7, as per which, no person shall be eligible for appointment to the post unless he is able to ride a bicycle; he satisfies the appointing authority that the character and antecedents are such as to qualify him for the post and produces a certificate regarding his physical fitness for the post in the form prescribed under Rule 10 of the Fundamental Rights and that no person shall be eligible for appointment to the post, if he has more than one spouse living or if such person has entered into or contracting a marriage with a person having a spouse living and also the person appointed to the post shall belong to the village to which he is appointed or the adjoining Village, if no suitable candidate is available from that Village.
19. From the Employment Exchange card, it is seen that the first respondent viz., P.Durai's date of birth is 12.06.1976 and he studied IX Standard and registered in the Employment Exchange on 20.01.1992 and it has been renewed subsequently. The required educational qualification as per the Rules, minimum V Standard pass and the first respondent having qualified for the post and his date of birth is 12.06.1976 and the upper age limit is 35 years and the date of notification is 04.11.2011 and he was within 35 years of age and having an eligibility of riding bicycle and he claims that his character and antecedents are good and also physically fit to hold the post.
20. On the other hand, the seventh respondent has been considered for employment, as per his Employment Card No.4033/2003, whereas the first respondent's Employment Card No.is 184/1992. It is clear that the first respondent having enrolled in 1992, waited for his employment and he has waited for a dream to enter into a Government Job and that has not been looked into by the fifth respondent, but the person, who had entered the Employment Exchange in 2003 has been considered and therefore, the learned Judge has gone to the extent of considering the materials available before him and has come to a clear conclusion that the writ petition deserves to be allowed. Accordingly, the view taken by the writ Court setting aside the order of the fifth respondent and to allow the writ petitioner does not warrant any interference by this Court and we have no hesitation to confirm the views of the learned Single Judge and accordingly, the writ appeal fails and the same is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed. (V.D.P.,J.) (V.M.V.,J.) 15.12.2014 Index : Yes Internet : Yes smn2 To 1.The District Collector, Sivagangai District, Sivagangai. 2.The District Employment Officer, Sivagangai, Sivagangai District. 3.The Revenue Divisional Officer, Sivagangai, Sivagangai District. 4.The Thasildar, Manamadurai Taluk, Sivagangai District. V.DHANAPALAN, J.
AND V.M.VELUMANI, J.
smn2 W.A.(MD) No.1252 of 2014 & M.P.(MD) No.2 of 2014 15.12.2014