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Judgment
Mr. R. Sudhakar, J. - 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 in the writ appeals, after referring the relevant provisions of
the Constitution of India and Tamil Nadu State and Subordinate Service Rules, by following the decisions of the Supreme Court in State of Bihar
v. Upendra Narayan Singh and others, (2009) 5 SCC 65 and State of Orissa v. Mamata Mohanty, (2011) 3 SCC 436, and a decision of this
Court in P.M.Malathi v. State of Tamil Nadu and others, 2012 (3) MLJ 669 held that any appointment merely by inviting names from the
Employment Exchange without wide publication in newspapers does not meet the requirement of Articles 14 and 16 of the Constitution of India
and would deprive eligible candidates having the requisite qualification from being considered for the post.
2.6. Further, the learned Single Judge held that G.O.Ms.No. 137, Animal Husbandry Dairying and Fisheries (AH7) Department dated
14.11.2011, does not stand the test of constitutional mandate of equality and is also arbitrary as Rule 10(a)(i) of the Rules does not permit the
filling up of newly created posts through Employment Exchanges. It was also held that Rule 10-A of the Rules is ultra vires the Constitution of
India, being violative of Articles 14 and 16 of the Constitution of India, as it stipulates filling up of the posts through Employment Exchange, without
wide publicity.
2.7. The learned Single Judge, while allowing W.P.(MD) Nos. 1666, 2093, 1646, 374 and 375 of 2012, directed the respondents therein to fill
up the posts of Veterinary Assistant Surgeons by following the constitutional mandate, by advertising the posts in the newspapers and other media,
besides calling for names from employment exchange and thereafter, select the candidates on merits by fixing the criteria of selection as per
decision of State Government.
2.8. Assailing the said order, the cases of Category-I have been filed by the appointees under Rule 10(a)(i) of the Rules, whose appointments have
been set aside by the learned Single Judge, and the cases of Category-II have been filed by the Department.
2.9. Subsequently, the Government vide G.O.(2D) No.6, Animal Husbandry, Dairying and Fisheries (AH7) Department, dated 17.1.2013,
approved the estimate of vacancy for the post of Veterinary Assistant Surgeon in Animal Husbandry Department for the years 2008-2009, 2009-
2010, 2010-2011, 2011-2012 as ""NIL"" and for the year 2012-2013 as 916 by direct recruitment. In line with the said Government Order, the
Tamil Nadu Public Service Commission issued Notification No.05/2013, dated 8.3.2013 inviting applications from eligible candidates to fill up
916 posts of Veterinary Assistant Surgeons.
2.10. Impugning the Notification No.05/2013, dated 8.3.2013 issued by the Tamil Nadu Public Service Commission, the appointees under Rule
10(a)(i) of the Rules filed the cases of Category-III. They sought for quashing of the said Notification dated 8.3.2013 insofar as their posts are
concerned and for a consequential direction to the respondents to conduct Special Qualifying Examination for the petitioners for their permanent
absorption as Veterinary Assistant Surgeons.
2.11. Later on, the Government issued G.O.Ms.No.104, Animal Husbandry, Dairying and Fisheries (AH7) Department, dated 20.5.2014, to
conduct a Special Test by Tamil Nadu Public Service Commission for the 636 Veterinary Assistant Surgeons recruited under Rule 10(a)(i) of the
Rules for permanently absorbing them into regular stream, specifically stating that their appointment shall be subject to the result of W.A.No.876 of
2012 and batch. For the remaining 385 vacancies of Veterinary Assistant Surgeon, the Tamil Nadu Public Service Commission was requested to
fill up the vacancies by conducting a general test.
2.12. Exasperated by the Government order in G.O.Ms.No. 104, Animal Husbandry, Dairying and Fisheries (AH7) Department, dated
20.5.2014, the cases of Category-IV are filed by persons who are qualified for appointment to the post of Veterinary Assistant Surgeons. The
petitioners therein seek to quash the said Government order and to consequently direct the respondents to conduct general competitive test for
1021 posts of Veterinary Assistant Surgeons through the Tamil Nadu Public Service Commission.
Contentions of Rival Parties:
Heard the learned counsel for the appellants, petitioners and the respondents at length. Their contentions category-wise are as under:
Category-I:
(Temporary Appointees under Rule 10(a)(i) of the Rules challenging the order of the learned Single Judge)
4.1. The learned Single Judge has set aside the appointments made under Rule 10(a)(i) of the Rules, without making such appointees party to the
writ petitions and, therefore, on the ground of violation of the elementary principles of natural justice, the order passed by the learned Single Judge
is liable to be set aside. In effect, it is their plea that orders passed behind their back will not be binding on them.
4.2. When the writ petitioners have not challenged G.O.Ms.No.137, Animal Husbandry, Dairying and Fisheries (AH7) Department, dated
14.11.2011 and the consequential selection process and have only sought for a direction to the Employment Exchange to sponsor their names to
the Director, Animal Husbandry and Veterinary Services, the learned Single Judge enormously expanded the scope of the controversy and erred in
setting aside the said Government order issued under Article 162 of the Constitution of India.
4.3. The recruitment was made through employment exchange in the mode prescribed and accepted by the Government and inasmuch as no fault
or misrepresentation is imputed to the appointees, the order of the learned Single Judge is against the doctrine of estoppel and the principle of
legitimate expectation, more so, when it is not the plea of the writ petitioners before the learned Single Judge that the mode of recruitment was bad
or arbitrary.
4.4. It is further pleaded that the learned Single Judge ought not to have nullified the provision of recruitment under Rule 10(a)(i) of the Rules, as
the same was framed under Article 309 of the Constitution of India.
4.5. It is also pleaded that in service matters there is no question of entertaining a public interest litigation and inasmuch as in the writ petitions the
petitioners have only sought for sponsoring of their names, the learned Single Judge ought to have either granted or declined the relief sought for,
instead of enormously expanding the scope of the writ petitions and setting aside the appointments made under Rule 10(a)(i) of the Rules.
4.6. It is their further plea that recruitment only by calling the names of eligible candidates from the employment exchange was held to be
constitutional by a learned Single Judge of this Court in W.P.No.2257 of 2012, by order dated 1.2.2012, and therefore, if a contra decision was
to be taken by the learned Single Judge, as in the order under challenge, the matter should have been referred to a Division Bench. It is also
pleaded that the Government had earlier issued orders relaxing the recruitment procedure in respect of such appointments made under Rule 10(a)
(i) of the Rules.
Category-II:
(Appeals of Department)
5.1. It is the plea of the department that the learned Single Judge had erred in holding that (i) G.O.Ms.No.137, Animal Husbandry, Dairying and
Fisheries (AH7) Department, dated 14.11.2011, directing filling up of the posts only through employment exchange under Rule 10(a)(i) of the
Rules is ultra vires; and (ii) Rule 10A of the Rules as ultra vires, when there is no specific challenge to it.
5.2. When the original writ petitioners did not review their registration with the employment exchange and are in fact not eligible for seeking any
employment, the writ petitions are not maintainable and therefore, the order passed by the learned Single Judge is liable to be set aside.
5.3. It is further pleaded that the direction given by the learned Single Judge will have adverse impact on the health of the livestock in the State;
disrupt the level of veterinary services being currently provided to the livestock; affect the productivity in Animal Husbandry Sector and will have
consequential economic impacts of reduced income levels for the farmers; increase in rural poverty and compromise with the food security.
5.4. It is stated that the Veterinary Assistant Surgeons appointed under Rule 10(a)(i) of the Rules are working in various dispensaries across the
State since May, 2012 and such appointments were made to ensure that the Government''s policy is implemented without any delay. Moreover, all
the appointments were made purely on temporary basis, initially for a period of one year, in order to tide over the prevailing situation of
tremendous increase in workload in the department and acute shortage of Veterinary Assistant Surgeons in the department.
5.5. The recruitment made by the Government under Rule 10(a)(i) of the Rules cannot be said to be in violation of Articles 14 and 16 of the
Constitution of India, as the recruitment was made through employment exchange based on seniority and following communal roster.
Category-III:
(Temporary Appointees under Rule 10(a)(i) of the Rules challenging the Notification of TNPSC)
6.1. It is the contention of the appointees under Rule 10(a)(i) of the Rules that the notification No.05/2013, dated 8.3.2013 issued by the Tamil
Nadu Public Service Commission by including the posts in which they are already working as Veterinary Assistant Surgeons is non est in law, as it
is in gross violation of the interim order passed by the Division Bench of this Court in W.A.No.818 of 2012, as such notification indirectly
terminates the services of the petitioners.
6.2. It is pleaded that the 636 appointees under Rule 10(a)(i) of the Rules, by virtue of the interim orders passed by the Division Bench of this
Court, are serving as Veterinary Assistant Surgeons and have gained experience and they form a separate class and cannot be clubbed with the
other prospective employees.
6.3. It is also pleaded that when the appointees under Rule 10(a)(i) of the Rules are awaiting conduct of Special Qualifying Test to regularise their
services, the issuance of the impugned notification by the Tamil Nadu Public Service Commission by including the posts in which they are
appointed contradicts the doctrine of legitimate expectation.
Category-IV:
(Third parties challenging G.O.Ms.No.104, Animal Husbandry, Dairying and Fisheries (AH-7) Department, dated 20.5.2014)
7.1. It is contended that inasmuch as the appointments made under Rule 10(a)(i) of the Rules have been set aside by the learned Single Judge and
the same are challenged in the writ appeals, the decision of the Government to permanently absorb all the 636 persons by conducting a Special
Test by Tamil Nadu Public Service Commission will amount to colourable exercise of power and as such illegal.
7.2. It is pleaded that the department should conduct General Test for all 1021 vacancies and that will give a fair chance to all eligible candidates to
get appointment. In other words, it is their plea that G.O.Ms.No.104, dated 20.5.2014 discriminates equally qualified persons, as it proposes two
different types of examinations, namely Special Test for permanent absorption of appointees under Rule 10(a)(i) of the Rules and General Test for
other 385 vacancies. To put it differently, it is their plea that the Government order deprives equal opportunity in public employment.
We have considered the contentions of the learned counsel on either side and perused the order passed by the learned Single Judge.
The contentions raised are intricately entwined and they are dealt with in tandem.
Effect of orders passed behind the Back of a person adversely affecting his rights:
10.1. The plea of the appointees under Rule 10(a)(i) of the Rules is that the learned Single Judge, while setting aside their appointment, has not
chosen to implead them as party respondents and no opportunity of hearing was afforded to them.
10.2. Concededly, the appointments under Rule 10(a)(i) of the Rules were made through employment exchange pursuant to the issuance of the
Government order in G.O.Ms.137, Animal Husbandry, Dairying and Fisheries (AH7) Department, dated 14.11.2011 and at present 636
candidates are working as Veterinary Assistant Surgeons in the Animal Husbandry Department. By dint of the order passed by the learned Single
Judge, the appointments made under Rule 10(a)(i) of the Rules have been set aside. However, by virtue of the interim orders passed by the court
ever and anon, they continue to be in service as on date.
10.3. It is beyond any cavil that the prayer sought in the writ petitions originally filed before the learned Single Judge was to direct the Professional
and Executive Employment Branch Offices concerned to sponsor their names for appointment as Veterinary Assistant Surgeons. However, the
learned Single Judge, in the order under challenge, has invalidated the selection made as per Rule 10(a)(i) of the Rules and nullified their
appointments.
10.4. It is trite law that no adverse order can be passed against persons who were not made parties to the litigation. The said view of ours is
fortified by a catena of decisions of the Supreme Court as under:
(i) In Prabodh Verma v. State of U.P., (1984) 4 SCC 251, the Supreme Court emphatically held that:
A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally
affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative
capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the
Sangh''s writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them
being made respondents in a representative capacity, and had the petitioners refused to do so, ought to have dismissed that petition for non-
joinder of necessary parties.
(emphasis supplied)
(ii) In J.S. Yadav v. State of U.P., (2011) 6 SCC 570, the Supreme Court held that:
No order can be passed behind the back of a person adversely affecting him and such an order, if passed, is liable to be ignored being
not binding on such a party as the same has been passed in violation of the principles of natural justice. ......... The litigant has to ensure that
the necessary party is before the court, be it a plaintiff or a defendant, otherwise the proceedings will have to fail. In service jurisprudence if
an unsuccessful candidate challenges the selection process, he is bound to implead at least some of the successful candidates in
representative capacity.
(emphasis supplied)
10.5. In the case on hand, none of the appointees under Rule 10(a)(i) of the Rules have been impleaded as respondents. When an order adversely
affecting the rights of a person is passed behind the back of the person, without affording him an opportunity, certainly the same is not binding on
the affected person. In our considered opinion, on this score alone, the order of the learned Single Judge setting aside the appointments of
Veterinary Assistant Surgeons under Rule 10(a)(i) of the Rules is liable to be set aside.
Significance of Pleadings in a petition and the scope of relief:
11.1. In the writ petitions originally filed, there is no pleading or challenge either to the appointments made under Rule 10(a)(i) of the Rules or the
said Rule itself. All that the writ petitioners sought was to direct the respective employment exchange to sponsor their names for appointment to the
post of Veterinary Assistant Surgeon. The learned Single Judge, while considering the merits of the pleadings of the respect writ petitioners, had
tested the validity of the Government order in G.O.Ms.No.137, Animal Husbandry, Dairying and Fisheries (AH7) Department, dated 14.11.2011
and set aside the appointments made under Rule 10(a)(i) of the Rules. That apart, the learned Single Judge held Rule 10-A of the Rules as ultra
vires and directed filling up of the posts as per the constitutional mandate.
11.2. On a careful comparison of the pleadings made in the original writ petitions; the relief sought for and the relief granted by the learned Single
Judge, it is explicitly clear that such decision rendered by the learned Single Judge is not based on pleadings made in the writ petitions, as in none
of the writ petitions, the affiants have made a plea challenging the Government order or the mode of recruitment.
11.3. It is well settled proposition of law that courts should decide the petitions on the points raised in the petition and if in a rare case, keeping in
view the facts and circumstances of the case, any additional points are to be raised, then the concerned and affected parties should be put to notice
on the additional points to satisfy the principles of natural justice and parties cannot be taken by surprise.
11.4. The purpose of the pleadings and impressibility of granting relief not founded on pleadings has been promulgated by the Supreme Court in
State of Orissa v. Mamata Mohanty, (2011) 3 SCC 436, wherein it is held as under:
Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to
help the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may
adduce appropriate evidence on the said issue. It is a settled legal proposition that ''as a rule relief not founded on the pleadings should not
be granted''. Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are
to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ.
11.5. In the present case, there is no pleading challenging the selection process or the relevant Rules. All that the original writ petitioners sought
was to direct the employment exchange to sponsor their names for selection. In such view of the matter, we hold that the relief granted by the
learned Single Judge is far beyond the pleadings made and the relief sought for and this Court cannot subscribe to the said conclusion.
Validity of the procedure adopted by the Government for making appointments under rule 10(A)(I) of the rules
12.1. Let us now analyse the scope and ambit of the appointment made under Rule 10(a)(i) of the Rules and as to whether the procedure adopted
by the Government is beyond reproach. Before adverting to the same, it would be appropriate to refer to Rule 10(a) of the Rules, which reads as
under:
10.Temporary appointments:- a(i) (1) where it is necessary in the public interest owing to an emergency which has arisen to fill immediately
a vacancy in a post borne on the cadre of a service, class or category and there would be undue delay in making such appointment in
accordance with these rules and the Special Rules, the appointing authority may temporarily appoint a person, who possesses the
qualifications prescribed for the post otherwise than in accordance with the said rules.
Provided that no appointment by direct recruitment under this clause shall be made of any person other than the one sponsored by the Tamil
Nadu Public Service Commission from its regular or reserve list of successful candidates to any of the posts with in the purview of the Tamil
Nadu Public Service Commission.
Provided further that appointment by direct recruitment under this clause (1) in respect of posts within the purview of Tamil Nadu Public
Service Commission shall be made, only where new posts with new qualifications are created temporarily and where the Tamil Nadu Public
Service Commission does not have a regular or reserve list of successful candidates for sponsoring.
(ii) Where it is necessary to fill a short vacancy in a post borne on the cadre of service, class or category and the appointment of the person
who is entitled to such appointment under these rules and the Special Rules, would involve excessive expenditure on travelling allowance or
exceptional administrative inconvenience, the appointing authority may appoint any other person who possess the qualifications, if any
prescribed for the said service, class or category.
(iii) A person appointed under clause (i) shall be replaced as soon as possible by a member of a service or an approved candidate qualified
to hold the post under the rules, and in any case, he shall not be continued for a period of more than one year from the date of his temporary
appointment;
(iv) where it is necessary to appoint an officer against whom an enquiry into allegations of corruption or misconduct is pending, the
appointing authority may appoint him temporarily, pending enquiry into the charges against him. The competent authority shall have
discretion to make regular appointment in suitable cases.
(v) A Person appointed under clause (i), (ii) or (iv) shall not be regarded as a probationer in such service, class or category or be entitled by
reason only of such 35 appointment to any preferential claim to future appointment to such service, class or category. The services of a
person appointed under clause (i), (ii) or (iv) shall be liable to be terminated by the appointing authority at any time without notice and
without any reason, being assigned.
(emphasis supplied)
12.2. From a bare reading of one of appointment orders given to the appointees under Rule 10(a)(i) of the Rules, it is lucid and clear that such
appointment is purely temporary. Even as per Rule 10(a)(i) of the Rules, such appointment is purely temporary and can be terminated by the
appointing authority at any time without notice and without any reason. Moreover, it is apparent and limpid that such appointee under Rule 10(a)(i)
cannot be continued for a period of more than one year from the date of his temporary appointment.
12.3. In the case on hand, selection of candidates was made from the list of candidates sponsored by employment exchange and, admittedly,
advertisement in newspapers was not made. It is the case of the original writ petitioners that their names were not sponsored by the employment
exchange for more than one reason. If wide publicity of such public employment is not given through newspapers, certainly the candidates who are
equally qualified, for having not registered their names in the employment exchange or awaiting registration for one reason or the other, would be
put on a different pedestal and lose a chance to compete with persons who have registered their names with the employment exchange. Therefore,
in addition to sponsoring of candidates by employment exchange, issuance of public notification having wider circulation would be in consonance
with the principles of fair play, justice and equal opportunity.
12.4. The Supreme Court in Excise Superintendent Malkapatnam, Krishna District v. K.B.N.Visweshwara Rao and others, (1996) 6 SCC 216,
emphasising the need for wider publication, held as under:
Having regard to the respective contentions, we are of the view that contention of the respondents is more acceptable which would be
consistent with the principles of fair play, justice and equal opportunity. It is common knowledge that many a candidate is unable to have the
names sponsored, though their names are either registered or are waiting to be registered in the employment exchange, with the result that
the choice of selection is restricted to only such of the candidates whose names come to be sponsored by the employment exchange. Under
these circumstances, many a deserving candidate is deprived of the right to be considered for appointment to a post under the State. Better
view appears to be that it should be mandatory for the requisitioning authority/establishment to intimate the employment exchange, and
employment exchange should sponsor the names of the candidates to the requisitioning departments for selection strictly according to
seniority and reservation, as per requisition. In addition, the appropriate department or undertaking or establishment should call for the
names by publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio,
television and employment news bulletins; and then consider the cases of all the candidates who have applied. If this procedure is adopted,
fair play would be sub-served. The equality of opportunity in the matter of employment would be available to all eligible candidates.
(emphasis supplied)
12.5 That apart, the Supreme Court in State of Orissa and another v. Mamata Mohanty, (2011) 3 SCC 436, on the issue of
appointment/employment without advertisement, held as under:
Appointment/employment without advertisement
At one time this Court had been of the view that calling the names from employment exchange would curb to certain extent the menace
of nepotism and corruption in public employment. But, later on, it came to the conclusion that some appropriate method consistent with the
requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for
applications and all those who apply in response thereto should be considered fairly. Even if the names of candidates are requisitioned from
employment exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from
the open market by advertising the vacancies in newspapers having wide circulation or by announcement in radio and television as merely
calling the names from the employment exchange does not meet the requirement of the said article of the Constitution. (Vide Delhi
Development Horticulture Employees'' Union v. Delhi Admn. AIR 1992 SC 789; State of Haryana v. Piara Singh, AIR 1992 SC 2130;
Excise Supdt. v. K.B.N. Visweshwara Rao, (1996) 6 SCC 216; Arun Tewari v. Zila Mansavi Shikshak Sangh, AIR 1998 SC 331; Binod
Kumar Gupta v. Ram Ashray Mahoto, AIR 2005 SC 2103; National Fertilizers Ltd. v. Somvir Singh, AIR 2006 SC 2319; Telecom
District Manager v. Keshab Deb, (2008) 8 SCC 402; State of Bihar v. Upendra Narayan Singh, (2009) 5 SCC 65 and State of M.P. v.
Mohd. Abrahim, (2009) 15 SCC 214.)
Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting
applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a
note on the noticeboard, etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the
mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being
considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment
mandatory compliance with the said constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that
every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit.
12.6. In view of the law as enunciated by the Supreme Court in the decisions referred supra, we hold that the procedure adopted by the
Government in selecting candidates only based on names sponsored by employment exchange, without issuance of public notification in the
newspapers is against the principles of fair play, justice and equal opportunity. On this premise, we hold that appointments made under Rule 10(a)
(i) of the Rules merely by calling for names from employment exchange violates the constitutional mandate of Articles 14 and 16 of the Constitution
of India.
12.7. The learned Single Judge also held Rule 10-A of the Rules as ultra vires. However, we do not propose to deliberate any further on the same
as in this case appointments were made only under Rule 10(a)(i) of the Rules.
Rights of candidates continuing in service based on interim orders:
13.1. It is the case of the appointees under Rule 10(a)(i) of the Rules that by virtue of the interim orders passed by the Division Bench of this Court
they are serving as Veterinary Assistant Surgeons and have gained experience and they form a separate class and cannot be clubbed with other
prospective employees.
13.2. We have already observed that the appointments made under Rule 10(a)(i) of the Rules without issuing public notification in newspapers is
against the principles of fair play, justice and equal opportunity. So, certainly such appointments are not in consonance with the rule of equality in
public employment enshrined in the Constitution of India and Courts should refrain from upholding such violation of Articles 14 and 16 of the
Constitution of India.
13.3. At this juncture, it would be apposite to refer to the law laid down by the Constitution Bench of the Supreme Court in Secretary, State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1, wherein it is held as under:
Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of
law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in
ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore,
consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment
is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the
appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or
appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could
not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary
employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in
regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due
process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary
employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not
acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption,
regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely
because an employee had continued under cover of an order of the court, which we have described as ''litigious employment'' in the earlier
part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High
Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it
may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to
continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is
really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by
the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.
...
While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the
person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an
engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes.
It may be true that he is not in a position to bargain-not at arm''s length- since he might have been searching for some employment so as to
eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional
scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued
permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a
contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the
court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of
administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would
not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens
of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined
to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing
the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows
the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which
he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the
procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been
working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he
first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail
when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.
(emphasis supplied)
13.4. In the case on hand, 636 appointees under Rule 10(a) (i) of the Rules continue to be in service even as on date by virtue of the interim orders
passed by this Court now and anon. Therefore, such appointees under Rule 10(a)(i) of the Rules can at the best be described as ""litigious
employment"" and they would not be entitled to be made permanent in service. In any event, an appointee under Rule 10(a)(i) of the Rules cannot
claim any right beyond a period of one year and that period is already over. While holding so, we would also like to observe that the what all Rule
10(a)(i) of the Rules contemplates is making of temporary appointments when it is necessary in the public interest to do so owing to an emergency
which has arisen for filling a vacancy immediately. On the face of it, the provisions of the rule and the terms of the appointment, make it amply clear
that the appointments under Rule 10(a)(i) of the Rules were made purely as a matter of stop-gap or emergency arrangement and the said provision
can by no stretch of imagination be made a source of employment, as this will run counter to the procedure established for making regular
appointments to available posts in the services of the State.
13.5. The appointees under Rule 10(a)(i) of the Rules have accepted temporary employment for a period of one year and continue to be in service
by virtue of the interim orders only. We have already made it clear that such appointees are not entitled to be made permanent in service. For
invoking the doctrine of estoppel, the party asserting the estoppel must have acted upon the assurance given to him. In this case, no such assurance
was given to the appointees under Rule 10(a)(i) of the Rules. Therefore, the doctrine of estoppel cannot be invoked. That apart, the department by
its conduct or practise has not aroused any expectation and had in fact, made it categoric that the appointment under Rule 10(a)(i) of the Rules is
purely temporary and can be terminated at any point without notice. Therefore, the appointees under Rule 10(a)(i) of the Rules cannot seek to
invoke the doctrine of legitimate expectation. The stand of the Government that they do not want to continue the appointees under Rule 10(a)(i) of
the Rules is clear from G.O.(2D) No.6, Animal Husbandry, Dairying and Fisheries (AH7) Department, dated 17.1.2013 and the consequential
Notification No.05/2013, dated 8.3.2013 issued by the Tamil Nadu Public Service Commission, inviting applications from eligible candidates to fill
up 916 posts of Veterinary Assistant Surgeons, including the posts in which the temporary appointees under Rule 10(a)(i) of the Rules are
working. The different Government orders issued only establishes the prevaricating stand of the government.
13.6. In view of the above, we hold that the appointees under Rule 10(a)(i) of the Rules, by virtue of their continuance in service based on interim
orders passed by this Court, would not be entitled to any right to be absorbed or made permanent in service.
Relaxation of recruitment procedure for appointees under rule 10(A)(I) of the rules:
14.1. It is no doubt true that the Government, vide G.O.Ms.No.104, Animal Husbandry, Dairying and Fisheries (AH-7) Department, dated
20.5.2014, issued orders to conduct a special test by Tamil Nadu Public Service Commission for the Veterinary Assistant Surgeons who were
appointed under Rule 10(a)(i) of the Rules. The said Government order, it is stated, is issued by the Governor by virtue of the power conferred
under Rule 48 of the Rules, which reads as under:
Rule 48. Notwithstanding anything contained in these rules or in the special rules, the Governor shall have power to deal with the case of
any person or class of persons serving in a civil capacity under the Government of Tamil Nadu or of any person who has or of any class of
persons who have served as aforesaid or any candidate or class of candidates for appointment to a service in such manner as may appear to
him to be just and equitable:
Provided that, where any such rule is applicable to the case of any person or class of persons, the case shall not be dealt with in any manner
less favourable to him or them than that provided by that rule.
14.2. The Government issued the above said Government order taking into consideration the interim orders passed by this Court. When we have
already held that such continuation of service by virtue of interim orders will not confer any right on the appointees under Rule 10(a)(i) of the Rules,
certainly they are not entitled to any preferential treatment. In our considered opinion, they have to compete with other veterinary graduates by
facing the general test to be conducted by the Tamil Nadu Public Service Commission. This will be in consonance with the decisions of the
Supreme Court in K.B.N.Visweshwara Rao case and Mamata Mohanty case, referred supra.
14.3. It is the further case of the appointees under Rule 10(a) (i) of the Rules that the Government, on many an occasion, issued notifications and
Government orders conducting only special test for such appointees. When the provisions of the Rule and the appointment orders in no uncertain
terms state that the appointment is purely temporary in order to tide over an emergent situation and such appointees are to be replaced at the
earliest by candidates sponsored by the Tamil Nadu Public Service Commission, in our considered opinion, such appointees under Rule 10(a)(i) of
the Rules can be granted no relaxation of the Rules and this would be against the principle of fair play, justice and equal opportunity. We hasten to
add that where recruitment is regulated by statutory rules, recruitment must be in accordance with the rules and any appointment dehors the rules
would be illegal and such appointees cannot claim any preferential treatment. This Court cannot rubberstamp such proceedings bypassing the Rules
and grant relief to fructify illegality. The State being the model employer is required to act fairly giving due regard to the rules framed by it and it
cannot relax the Rules to the extent of making them nugatory.
14.4. One of the contentions raised by the appointees under Rule 10(a)(i) of the Rules is that their services should be regularised in line with the
judgment of the Supreme Court in K.Gunavathi v. V.Sangeeth Kumar and others, (2014) 11 SCC 491, wherein it is held as under:
The order dated 19.11.2009 directing filling up of 175 existing vacancies and future vacancies of Computer Instructors on the basis of
the employment exchange seniority was a conscious decision taken in departure from the virtually settled position in law that recruitment to
public service, normally, ought to be by open advertisement and requisitions through the employment exchange can at best be supplemental.
(See: Excise Superintendent Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao and Ors. (1996) 6 SCC 216, Arun Kumar
Nayak v. Union of India and Ors., (2006) 8 SCC 111 and State of Orissa and Anr. v. Mamata Mohanty, (2011), 3 SCC 436). Such
departure was felt necessary due to the compulsive needs dictated by the peculiar facts of the case. At that point of time, out of the 1880
available posts 1683 posts had already been filled up by the adhoc and underqualified Computer Instructors already working leaving only
175 vacancies and an unknown number of further vacancies which was contingent on the result of the second recruitment test ordered by
this Court as a one time measure. Both the recruitment tests, ordered by the High Court as well as this Court, were exclusive to the adhoc
and unqualified persons leaving a large number of qualified candidates like the petitioners out of the arena of consideration.
What would be the extent of the `adverse'' effect on the failed teachers if the remaining appointments are to be made on the basis of
employment exchange seniority cannot be determined with any degree of accuracy at this stage inasmuch as a large number of such persons
had qualified in the meantime and by virtue of clause (v) of Para 53 of the impugned order, the names of the failed computer instructors who
were earlier registered in the employment exchanges have been directed to be re-entered and their earlier seniority restored. While it is also
correct that by ordering recruitment on the basis of employment exchange seniority other eligible candidates who could have taken part in
the competitive examination would loose out, no such person is presently before us to persuade us to take the view that for the purpose of
recruitment to the 652 posts of Computer Instructors the earlier order of this Court dated 19.11.2009 should not prevail.
We accordingly allow these appeals and set aside directions (vi) and (vii) of Para 53 of the impugned order dated 18.09.2013 of the
High Court and direct that recruitment to the 652 vacant posts shall be made on the basis of employment exchange seniority. We also make
it clear that the above direction shall also govern the 175 existing vacancies covered by the order of this Court dated 19.11.2009 if the same
continue to remain vacant as on date. To all other vacancies, existing or future, as may be, the State will be at liberty to follow such policy as
may be in force or considered appropriate.
(emphasis supplied)
However, in our considered opinion, the present case does not fall within the parameters of exceptional category. The Government order in G.O.
(2D) No.6, Animal Husbandry, Dairying and Fisheries (AH7) Department, dated 17.1.2013 and the consequential Notification No.05/2013,
dated 8.3.2013 issued by the Tamil Nadu Public Service Commission, inviting applications from eligible candidates to fill up 916 posts of
Veterinary Assistant Surgeons, including the posts in which the temporary appointees under Rule 10(a)(i) of the Rules are working, goes to show
that the Government wanted to recruit Veterinary Assistant Surgeons following the procedure prescribed by the Supreme Court in
K.B.N.Visweshwara Rao case and Mamata Mohanty case, referred supra. In such view of the matter, we hold that the appointees under Rule
10(a)(i) of the Rules are not entitled to any preferential treatment and have to compete with other veterinary graduates by facing the general test to
be conducted by the Public Service Commission.
Conclusion:
For the foregoing reasons, we pass the following order:
(i) the writ appeals which fall under Category-I [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] are disposed of with the following observations:
(a) the order of the learned Single Judge is set aside on the grounds that it was passed behind the back of the appointees under Rule 10(a)(i)
of the Rules; and that the relief granted is not in line with the pleadings made or the relief sought; and
(b) it is made clear that the same does not confer any right on the appointees under Rule 10(a)(i) of the Rules, as their appointment without
wide publication in newspapers and continuance in service based on interim orders is in gross violation of the constitutional mandate and
runs counter to the recruitment process contemplated under the Rules;
(ii) The writ appeals which fall under Category-II [W.A.(MD) Nos.176 to 179 of 2013] are allowed however, in terms of paragraph 15(i)
of this judgment;
(iii) The writ petitions falling under Category-III [W.P.(MD) Nos.4883 to 4891, 5844, 5845, 5652 and 5671 of 2013] challenging the
Notification No. 05/2013, dated 8.3.2013, which includes the posts of appointees under Rule 10(a)(i) of the Rules are dismissed.
However, since the said notification was not acted upon by virtue of the interim order passed by this Court, the Government may pass fresh
orders in this regard, as per the direction given in clause (iv) hereunder;
(iv) The writ petitions falling under Category-IV [W.P.Nos.24842 and 31395 of 2015] are allowed and G.O.Ms.No.104, Animal
Husbandry, Dairying and Fisheries (AH-7) Department, dated 20.5.2014, is set aside and the respondents are directed to conduct general
competitive test for 1021 posts of Veterinary Assistant Surgeons in Tamil Nadu Animal Husbandry Department strictly adhering to the
procedure contemplated under law.
No costs. Consequently, all the connected miscellaneous petitions are closed.