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2016 Supreme(Mad) 1213
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. SUDHAKAR & V.M. VELUMANI, JJ.
Dr. P. Chinna Maruthupandy – Appellant
Vs.
Vanitha – Respondent
W.A. (MD) Nos. 818, 827, 861, 876 of 2012, 97, 98, 176 to 179 of 2013, 882, 883, 944, 946, 950 and 1020 of 2015 and W.P. (MD) Nos. 4883 to 4891, 5652, 5671, 5844 and 5845 of 2013, W.P. Nos. 31395 and 24842 of 2014 and M.P. (MD) Nos. 1 of 2012, 2 of 2012 (3 Petitions), 1 of 2013 (6 Petitions), 2 of 2013 (15 Petitions), 3 of 2013 (13 Petitions), 4 of 2013 (9 Petitions), 1 of 2015 (3 Petitions), M.P. Nos. 1 of 2014 (2 Petitions), 2 of 2014 (2 Petitions), 5 of 2015 and 1 of 2015
Decided On : 22-01-2016
For the Appellants : Mr. G.R. Swaminathan, Mr. Veerakathiravan, Ms. Porkodi Karnan, Mr. Santhanaraman and Mr. Ajmal Khan.
For the Respondent: Mr. R. Sundar, Mr. K.K. Senthil, Mr. K. Ramasamy and Mr. A. John Vincent.
Headnote:Constitution of India, 1950 Article 226 Tamil Nadu State and Subordinate Service Rules, Rule 10(a) (i) – Single judge passed an order in favor of certain petitioner by directing to conduct competitive test for all assistant surgeons. In the writ petition filed by the appointees, it was held that no adverse order can be passed against appointees who were parties to the litigation. Also, if any point is raised which is new, then effective party should be put to notice. Appeal hence disposed off as single judge has gone beyond the pleadings. - Rule 10(a) (i) of the said act emphasis on the temporary appointments, can such appointments be terminated at any time without notice. Appointees cannot claim any right beyond one year time to stay on such duties. Appointees are not entitled for permanence in service since no assurance was given to them for the same.
Constitution of India, 1950 Articles 14, 16 and 226 Tamil Nadu State and Subordinate Service Rules, Rule 10(a) (ii) – Appointment should be done for the post of veterinary assistant surgeon by advertising the same in any newspaper. Simply filling the post through employment exchange is in violation of principal of natural justice and is against the mandate of Article 14 and 16 of the Constitution. Hence appointment made under Rule (10)(a)(i) violates the constitution and should be set aside.
R. SUDHAKAR, J.
1. This batch of cases can be broadly classified into four categories as under:
Category-I: Writ Appeals filed by the appointees under Rule 10(a) (i) of the Tamil Nadu State and Subordinate Service Rules (for brevity, “the Rules”), who are not arrayed as parties in the writ petitions before the learned Single Judge and whose appointments were set aside by the learned Single Judge by order dated 12.9.2012 made in W.P.(MD) Nos.1666, 2093, 1646, 374 and 375 of 2012. [W.A.(MD) Nos.818, 827, 861 and 876 of 2012; 97 and 98 of 2013; 882, 883, 944, 946, 950 and 1020 of 2015 fall under this category.]
Category-II: Writ Appeals filed by the Director of Animal Husbandry and Veterinary Services and the Professional Executive Employment Branch Offices challenging the order of the learned Single Judge dated 12.9.2012 made in W.P.(MD) Nos.374, 375, 1646 and 2093 of 2012. [W.A.(MD) Nos.176 to 179 of 2013 fall under this category.]
Category-III: Writ Petitions filed by the appointees under Rule 10(a) (i) of the Rules to quash the Notification No.05/2013, dated 8.3.2013 as illegal, insofar as notification of their vacancies are concerned and to consequentially direct the respondents to conduct Special Qualifying Examination for the petitioners for their permanent absorption as Veterinary Assistant Surgeons. [W.P.(MD) Nos.4883 to 4891, 5844, 5845, 5652 and 5671 of 2013 fall under this category.]
Category-IV: Writ Petitions filed to quash G.O.Ms.No.104, Animal Husbandry, Dairying and Fisheries (AH-7) Department, dated 20.5.2014 and to consequently direct the respondents to conduct general competitive test for 1021 posts of Veterinary Assistant Surgeons in Tamil Nadu Animal Husbandry Service. [W.P.Nos.24842 and 31395 of 2015 fall under this category.]
FACTUAL BACKDROP:
2.1. Shorn of unnecessary details, the facts leading to the filing of these cases are narrated hereunder.
2.2. The Government vide G.O.Ms.No.137, Animal Husbandry, Dairying and Fisheries (AH7) Department, dated 14.11.2011 issued orders creating 585 posts of Veterinary Assistant Surgeons initially for a period of one year temporarily and decided to fill these posts through Employment Exchange under Rule 10(a)(i) of the Rules in regular time scale of pay. Further, the Director of Animal Husbandry and Veterinary Services was also permitted to fill up the then existing 258 vacant posts of Veterinary Assistant Surgeons on the same terms, referred supra. In all, the said Government Order permitted the Director of Animal Husbandry and Veterinary Services to fill up 843 posts of Veterinary Assistant Surgeons. It was specifically stated in the government order that the recruitment from the Employment Exchange will be done following the Employment Seniority and in accordance with the Communal roster guidelines; and that before filling up of the posts through Employment Exchange, the candidates in the reserve list/regular list of Tamil Nadu Public Service Commission should be adjusted.
2.3. Pursuant to the issuance of the said government order, the Director of Animal Husbandry and Veterinary Services selected 798 candidates through employment exchange, on the basis of their seniority and by following communal roster. Out of 798 candidates who were selected, 747 candidates joined in the post of Veterinary Assistant Surgeons on various dates between May, 2012 and July, 2012. It is on record that at present only 636 candidates are working as Veterinary Assistant Surgeons in the Animal Husbandry Department.
2.4. When things stood thus, writ petitions in W.P.(MD) Nos. 1666, 2093, 1646, 374 and 375 of 2012 were filed by (i) Ms.Vanitha; (ii) Dr.K.Parthiban; (iii) Dr.A.Ravichandran; (iv) Dr.K.Vengadesan; and (v) Dr.C.Saravanakumar respectively to direct the Professional and Executive Employment Branch Offices concerned to sponsor their names for appointment as Veterinary Assistant Surgeons.
2.5. The learned Single Judge, by order dated 12.9.2012 which is called into question
