Judgment:
JUDGMENT
1. Being aggrieved by the dismissal of the Writ Petition (Order dated 21.6.2007) declining to issue a direction to respondents 1 to 4 to reinstate the appellant, the appellant has preferred this Appeal.
2. The first respondent called for interview through Employment Exchange for appointment of a watchman. The appellant attended the interview. The appellant was selected for the post of watchman and on 8.4.2002, he was appointed as watchman in first respondent college. In the appointment order, it was clearly stated that his appointment is subject to the approval of Director of Collegiate Education. The appellant worked upto October, 2002 and he was paid consolidated pay of Rs.900/- and assured of paying the Government pay scale as early as possible.
3. The case of the appellant is that he had to appear for Secondary School Examination and with the permission of the second respondent,he took leave from 22.9.2004 to 1.10.2004 to appear for Secondary School Examination. Further case of the appellant is that, he rejoined duty on 4.10.2004 and on the same day evening, he was informed by the second respondent that he was removed from service. The appellant was informed that he was terminated as per G.O. No.463, Finance (C.M.P.C) Department, dated 23.11.2001 which bans creation of new posts in the Government Departments.
4. Contending that he was arbitrarily terminated and his removal of service was not in accordance with the provisions of the Taminal Nadu Private Colleges Act and Rules, the appellant filed Writ Petition (MD)No.3744 of 2004 seeking a Writ of Mandamus directing respondents 1 to 4 to reinstate the appellant in the post with Government pay scale.
5. By order dated 21.6.2007, after elaborately extracting the counter filed by the first respondent/management by order dated 21.6.2007, the learned single Judge dismissed the Writ Petition holding that even at the time of his appointment, it was made clear that his appointment was subject to the approval of the third respondent and that the appellant was informed that his appointment was not approved due to ban order passed by the Government.
6. Challenging the dismissal of the Writ Petition, the appellant has preferred this Appeal. By order dated 28.8.2008, earlier Division Bench of this Court has allowed the Writ Appeal. Being aggrieved by allowing of the Writ Appeal, the first respondent preferred SLP before the Supreme Court. Observing that the said order is a non-speaking order, the Hon'ble Supreme Court in SLP (C) 9455-9456/2009 C.C.No.4405 of 2009 set aside the order of the Division Bench dated 28.8.2008 and remitted the matter for consideration afresh.
7. We have heard the learned counsel for the appellant and the learned Senior Counsel for respondents 1 and 2 and the learned Additional Government Pleader for Respondents 3 and 4.
8. The learned counsel for the appellant vehemently contended that as per G.O. No.463, Finance (C.M.P.C) Department, dated 23.11.2001, there was complete ban only for creation of new posts in all the departments and there was no ban for appointment in existing posts. Drawing our attention to the information obtained through Right to Information Act, the learned counsel for the appellant further contended that as per the information obtained, the appellant was appointed as against the existing posts along with two other persons, namely, Raghunathan and Ganesan. The learned counsel further contended that when the appellant was appointed in the sanctioned posts, the respondents cannot invoke the said ban as per the Government Order, which is applicable only for creation of new posts.
9. The learned Senior Counsel for Respondents 1 and 2, Mr.AR.L.Sundaresan contended that the order of appointment of the appellant was subject to approval by the Director of Collegiate Education. At the time, when the appellant was appointed on 8.4.2002, there was complete ban for filling up vacant posts as per G.O.Ms.No.212, Personnel & Administrative Reforms (P) Department, dated 29.11.2001.
10. Of Course, G.O. No.463, Finance (C.M.P.C) Department, dated 23.11.2001 stipulates complete ban on creation of new posts in all the departments. But, the said G.O. may not be relevant to the case on hand.
11. As per another Government Order in G.O.Ms.No.212, Personnel & Administrative Reforms (P) Department, dated 29.11.2001, to effect economy in expenditure, the Government decided that there shall be complete ban for filling up vacant posts except certain categories of posts such as teachers, police constables etc.,. G.O.Ms.No.212, Personnel & Administrative Reforms (P) Department, dated 29.11.2001 reads as under:-
The Government have decided to effect economy in expenditure and accordingly direct that filling up of vacant posts shall be completely banned except certain categories of posts such as Teachers, Doctors and Police Constabulary which may be identified and declared as essential posts. Proposals for filling up vacant posts considered essential by any Department will be placed before a committee consisting of Chief Secretary, Finance Secretary and Secretary (Personnel and Administrative Reforms). (underline is added)
12. As pointed out earlier, even in the appointment order dated 8.4.2002, it was clearly stated that the appointment is subject to the approval of the Director and Joint Director of the Collegiate Education.
13. Placing reliance upon (2001) 9 SCC 613 [Government of Andhra Pradesh and others v. Sri Sevadas Vidyamandir High School and others], learned counsel for appellant contended that the ban order in G.O.Ms.No.212 dated 29.11.2011 cannot be made applicable to the Appellant, since his appointment was as against the sanctioned post. In the said case, C.A.M.High School, Nellore, which was a private aided school approached the District Education Officer, Nellore for grant of permission to fill up the existing vacant posts. By his letter dated 17.9.2004 addressed to the Regional Joint Driector, School Education, Guntur, the District Education Officer, Nellore recommended the grant of sanction to the Management of the School to fill up the vacant aided posts. The Regional Joint Director, School Education, Guntur had also granted permission by the letter dated 22.9.2004. While the recruitment process was underway, the School informed that the Government had issued a Memo dated 20.10.2004 imposing the ban on the filling up of the vacant posts and therefore, selection process could not be completed. In those facts and circumstances of the case, confirming the Judgment of Andhra Pradesh High Court, the Hon'ble Supreme Court held that the Memo imposing ban on recruitment cannot be given retrospective effect, so as to negate the approval already given for recruitment.
14. The ratio of the above decision is not applicable to the case on hand. In the present case, G.O.Ms.No.212 dated 29.11.2011 imposing complete ban for filling up vacant posts was in force even with effect from 29.11.2001. When the ban order was in force, Appellant was appointed on 8.4.2002 and in his appointment order, it was clearly stated that his appointment is subject to the approval of the Director and Joint Director of Collegiate Education. Rightly the School Authorities sent the proposal to the 4th Respondent for approval of the appointment of the Appellant. In view of the ban order in force, the proposal was not approved. In such facts and circumstances, the ratio of the above decision is of no assistance to the Appellant.
15. Likewise, the factual matrix of the other decisions relied on by the learned counsel for Appellant in (2006)5 SCC 493 (National Fertilizers Limited and ohters v. Somvir Singh) and (2008) 11 SCC 90 (Rajendra v. State of Maharashtra and others) do not apply to the facts of the case on hand.
16. As stipulated by the said Government Order, a proposal was sent by the first respondent to the fourth respondent for approval of the appointment of the appellant. The proposal so sent was rejected by the fourth respondent. While so, the first respondent cannot be faulted for not taking back the appellant. After expiry of leave, the appellant rejoined duty on 4.10.2004. On the same day, he was informed that since his appointment was not approved by the fourth respondent, the appellant was removed from service. In this regard, the learned Senior Counsel has also produced a letter written by the appellant wherein the appellant has made an endorsement to the effect that he received all his certificates on 4.10.2004. When the appellant has received back all his certificates, the appellant cannot seek for a Writ of Mandamus directing the respondents to reinstate him.
17. The learned counsel for the appellant contended that the appellant's right was violated and the appellant was discriminated as the two other persons who were appointed along with the appellant were retained and the appellant alone was removed from service. The above said contention is not substantiated by any materials.
18. In this regard, the learned Senior Counsel for respondents 1 and 2 clearly submits that since the appointments of Raghunathan and Ganesan were not approved, they were also removed from service, there is no force in the contention of the appellant that he was discriminated and his right was violated. The learned Senior Counsel further contended that the other two persons, namely, Raghunathan and Ganesan were issued with N.O.C. at the time of removal from service and that the respondents 1 and 2 are ready to issue N.O.C. even to the appellant.
19. In the circumstances, after elaborately referring to the counter, the learned single Judge rightly dismissed the Writ Petition. We do not find any reasons warranting interference with the order of the learned single Judge.
20. In the result, the Writ Appeal is dismissed. No costs. Connected Miscellaneous Petition is closed. The learned Senior Counsel for Respondents 1 and 2 submitted that if the appellant requires/requests, the Respondents 1 and 2 shall issue N.O.C. to the appellant also. Considering the said submission, on application made by the appellant, the Respondents 1 and 2 shall issue No Objection Certificate to the appellant also within a period of four weeks from the date of receipt of such application from the appellant.