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SUPREME COURT OF INDIA
L. NAGESWARA RAO, HEMANT GUPTA, JJ.
Commissioner Of Municipal Administration & Anr. – Appellants
Versus
M.C. Sheela Evanjalin & Ors. – Respondents
Civil Appeal No. 6565 of 2019 (Arising Out Of SLP (Civil) No. 18330 of 2017)
Decided on : 22-08-2019
(a) Constitution of India – Article 309 – Appointment – Qualification for the post is not the criteria for appointment to 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 manner provided by applicable recruitment rules in terms of law enacted under Article 309 of Constitution of India or Rules made in terms of proviso to Article 309 of Constitution of India – In absence of law and/or the rules, executive instructions may also prescribe eligibility conditions including educational qualifications, experience, age limit for appointment to the post. (Para 15)
(b) Service Law – Appointment – Respondent was initially appointed as Road Gang Mazdoor – She came to be appointed as Revenue Assistant in pursuance of orders passed by Madras High Court for reason that she is qualified for such post – Respondent sought appointment as Revenue Assistant only on the basis of the fact that she possesses Diploma in Civil Engineering – Possession of Diploma in Civil Engineering is not entitlement to a public post unless such post is advertised and opportunity is given to all eligible candidates to apply for the post in terms of applicable rules – Respondent is not in feeder cadre for appointment to post of Town Planning Inspector – In absence of her being in feeder cadre, High Court committed illegality in directing consideration for appointment of respondent to post of Town Planning Inspector – 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 Rules – There cannot be any parity in illegality – Once appointment to post of Town Planning Inspector is not contemplated from amongst Revenue Inspectors, respondent cannot claim any parity on the basis of illegality committed by Municipality – Order of High Court set aside with cost of Rs.20,000/- as respondent has initiated totally untenable and frivolous proceedings. (Paras 15, 16, 19 and 20)
Facts of the Case:
High Court, on October 5, 1990, passed an order directing the appellants to consider claim of the respondent for appointment to the post of Overseer along with others who have been sponsored through Employment Exchange. Challenge in the present appeal is to an order passed by Division Bench of Madurai Bench of the Madras High Court on March 22, 2017 whereby, an order passed by Single Bench on June 18, 2014 was not interfered with.
Findings of Court:
Manner in which the High Court has issued directions time and again shows utter disregard to 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.
Result : Appeal allowed.
JUDGMENT :
HEMANT GUPTA, J.
1. Leave granted.
2. Challenge in the present appeal is to an order passed by the Division Bench of Madurai Bench of the Madras High Court on March 22, 2017 whereby, an order passed by the learned Single Bench on June 18, 2014 was not interfered with.
3. The respondent No. 1 in the present appeal was appointed as Road Gang Mazdoor on July 12, 1988 by the Kuzhithurai Municipality in pursuance of the names recommended by the District Employment Exchange Officer. The respondent filed Writ Petition No. 11518 of 1990 before the High Court on the ground that she possesses Diploma in Civil Engineering and that Kuzhithurai Municipality has invited applications through Employment Exchange for appointment to the post of Overseer. She projected her claim for consideration for appointment as Overseer. She filed writ petition before the High Court when her claim was not considered for appointment to the post of Overseer. The High Court, on October 5, 1990, passed an order directing the appellants to consider the claim of the respondent for appointment to the post of Overseer along with others who have been sponsored through the Employment Exchange.
4. The services of the respondent were terminated on November 30, 1992 by the Municipal Commissioner, Kuzhithurai Municipality. Aggrieved by the said termination order, she filed Original Application (OA) No. 622 of 1993 before the Tamil Nadu Administrative Tribunal. However, the decision of the said application is not on record. She filed another OA No. 3517 of 2002 before the Tamil Nadu Administrative Tribunal, [Tribunal] wherein, a direction was issued on June 25, 2002 to consider the claim of the respondent for absorption in the vacancies which may arise in future.
5. The respondent filed Writ Petition No. 1392 of 2005 before the Madurai Bench of the Madras High Court claiming direction to be given to the appellants for disposal of her representation dated March 19, 2003 subsequent to the order passed by the Tribunal. The High Court directed the appellants to dispose of the representation of the respondent in accordance with law and in terms of order passed by the Tribunal in OA No. 3517 of 2002.
6. The appellants filed Writ Petition No. 25330 of 2005, aggrieved against an order passed by the Tribunal on June 25, 2002. The writ petition was dismissed on account of delay in challenging the order passed and also for the reason that the said direction was given by the Tribunal only to consider the respondent for absorption against the future vacancies.
7. The respondent again filed Writ Petition No. 34131 of 2005 before the High Court to consider her claim for absorption as Overseer. The said writ petition was decided on December 2, 2005 with a direction to the appellants to consider the claim of the respondent within a period of eighteen weeks from the date of receipt of copy of the order. The Commissioner of Municipal Administration, Chennai communicated on March 8, 2006 to the State Government with copy to the respondent that the claim of the respondent, inter alia,was not acceptable on the following reasons:
“WP No. 3413/2005 and WP No. 37001/2005 dtd. 02.12.2005
Direction to CMA and Municipal Commissioner to consider the claim of the petitioner based on the observation of TNAT in O.A. No. 3517/2002.
Out of four persons appointed irregularly as mentioned above, one died and two others were absorbed in lower level posts like Helper based on TNAT and High Court orders. When vacancies were available, there are several irregularities in the original appointment of the case in question, the main being the violation of the ban of filling up the vacancy in the post of NMRs. For Road Gang Mazdoor DCE qualified candidates should not have been invited. As the individual and worked continuously four years having been sponsored by the Employment Exchange she had acquired right over absorption in regular capacity as per Judicial Interpretations in several cases. At present there is no v
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