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Judgment
G. Rajasuria, J.—The petitioner filed Original Application in O.A. No. 8083 of 1998 before the Tamil Nadu Administrative Tribunal;
consequent upon its abolition, the said Original Application was transferred to this Court and re-numbered as W.P.5436 of 2007, to call for the
entire records connected with the impugned order of the first respondent bearing No. 32883/Na.Pa.3/97-1 dated 17.04.1998, and quash the
same and forbear the respondents from interfering with the services of the applicant.
Heard both sides.
The nutshell facts which are absolutely necessary and germane for the disposal of this writ petition would run thus:
Indisputably and indubitably, the petitioner herein was appointed as N.M.R. in Sivaganga Municipality vide Order dated 29.01.1992. It so
happened that while he was functioning in that capacity and in-charge of the Cycle Stand belonging to the said Municipality, he sustained injury in
his eye caused by a spring from the cycle carrier of a customer. Thereupon, he took treatment and he was allotted with light work in Public Toilet
under the control of the same Municipality.
Taking into consideration the fact that he is educationally qualified and that he sustained injury in the course of discharging his duty as N.M.R.,
the Commissioner of Sivaganga Municipality recommended his case for being considered by the Government, so that he could be appointed in
some permanent vacancy. The Government also vide communication dated 01.11.1993 after considering the fact that he was recruited as N.M.R.
through Employment Exchange and that he sustained some amount of disability in the course of discharge of his duty as N.M.R, directed the
Commissioner, Sivaganga Municipality to appoint him as Clerk in the vacancy which arose consequent upon the promotion of the then incumbent
in that job. Accordingly, the petitioner was appointed as Clerk by the Commissioner, Sivaganga Municipality, vide order dated 04.11.1993;
subsequently he was also confirmed in that post.
While so, it appears, in some other matters the Administrative Tribunal looked askance at the conduct of the higher officials in picking and
choosing the N.M.Rs and appointing such N.M.Rs in regular vacancies discarding the Seniority of the other N.M.Rs. Thereupon, the Government
analysed and issued G.O.Ms. No. 266 dated 15.10.1996. According to the petitioner, the Commissioner concerned without actually
understanding the purport of the said G.O. and the earlier direction given by the Administrative Tribunal, erroneously treated the petitioner also as
the one irregularly appointed and accordingly, terminated him arbitrarily.
Being aggrieved by and dissatisfied with, the order of termination O.A. No. 8083 of 1998 has been filed and it was subsequently got transferred
to this Court and renumbered as W.P. No. 5436 of 2007.
Per contra, challenging the allegations/averments in the Writ Petition, the respondents filed the counter which would run thus:
The Seniority of the other N.M.Rs was not considered while appointing the petitioner on regular basis. Even though show cause Notice was
sought to be served on the petitioner, yet it could not be served because of the conduct of the petitioner in keeping himself away. Accordingly, the
respondents pray for dismissal of the Writ Petition.
The point for consideration is as to whether the petitioner is entitled to get reinstatement as clerk in the same post from which he was
ousted,consequent upon the order passed by the Commissioner dated 17.04.1998?
The learned Counsel for the Writ Petitioner would convincingly and correctly highlight that the G.O. could not be considered as one giving right
to the Commissioner to terminate any N.M.R. who has been appointed on regular basis as clerk irrespective of the merits of each and every case.
According to the learned Counsel for the Writ Petitioner, the Government applied its mind with regard to the petitioner''s grievance and without
affecting the seniority of any other person, issued direction for appointing the Writ petitioner a clerk in the then existed regular vacancy.
The learned Additional Government Pleader could not high light that any other N.M.R. who was senior to the petitioner was disregarded by
the Municipality. The counter of respondents would convey the idea that in a stereotyped manner, it was prepared and filed without any basis
relating to the case of the petitioner herein.
The perusal of the following documents viz. the proceedings of the second respondent dated 29.01.1992 and G.O.Ms.219 dated 01.11.1993
would at once demonstrate that the petitioner was not picked and chosen from the open market and simply appointed as N.M.R., but on the other
hand after obtaining list of candidates from employment exchange, he was chosen and appointed. While he was functioning as N.M.R and in the
course of his employment he sustained injury and it was recognized by the authorities concerned, as he sustained some disability while discharging
his duty as N.M.R. under Municipality. The Government took into consideration that there was vacancy in the clerk post consequent upon the
promotion given to one Kalai Rajan and thereupon the appointment was given to the writ petitioner. Hence, in such a case, absolutely there is
nothing to highlight that the petitioner entered the service through back door. If at all he entered service illegally, certainly he would not be entitled
for any consideration at all. At this juncture I would like to recollect the recent decision of the Honourable Apex Court in M.P. State Coop. Bank
Ltd., Bhopal Vs. Nanuram Yadav and Others, . An excerpt from it, would run thus:
It is clear that in the matter of public appointments, the following principles are to be followed:
(1) The appointments made without following the appropriate procedure under the rules/government circulars and without advertisement or inviting
applications from the open market would amount to breach of Articles 14 and 16 of the Constitution of India.
(2) Regularisation cannot be a mode of appointment.
(3) An appointment made in violation of the mandatory provisions of the statue and in particular, ignoring the minimum educational qualification and
other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation.
(4) Those who come by back door should go through that door.
(5) No regularisation is permissible in exercise of the statutory power conferred under Article 162 of the Constitution of India if the appointments
have been made in contravention of the statutory rules.
(6) The Court should not exercise its jurisdiction on misplaced sympathy.
(7) If the mischief played is so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been
unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necesary to issue individual show-cause notice to each
selectee. The only way out would be to cancel the whole selection.
(8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to
be set aside.
Analyzing the factual aspects involved in this case with that of the propositions set out by the Honourable Apex Court supra, it is at once clear
that the case of the petitioner could not be discarded in view of the mandates of the Honourable Apex Court set out supra.
In such a case, I am having no hesitation in setting aside the order of termination passed by the first respondent dated 17.04.1998 and for
ordering reinstatement of the Writ petitioner. He shall be considered as the person continuing in service without any break, which resulted
consequent upon his illegal termination. However, no back wages are ordered in favour of the petitioner.
Accordingly, this writ petition is disposed of. No costs.