COMMISSIONER OF MUNICIPAL ADMINISTRATION & ANR.V. M. C. SHEELA EVANJALIN & ORS. versus M. C. SHEELA EVANJALIN & ORS. on 22 August 2019

59[2019] 11 S.C.R. 1

COMMISSIONER OF MUNICIPAL ADMINISTRATION & ANR.

v.

M. C. SHEELA EVANJALIN & ORS.

(Civil Appeal No. 6565 of 2019)

AUGUST 22, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Service Law: Appointment – On facts, initial appointment ofrespondent as Road Gang Mazdoor – Respondent claimedappointment to the post of Overseer on basis of her qualification –Several litigations – Pursuant to the order by the High Court,respondent appointed as Revenue Assistant – Thereafter, respondentfiled writ petition seeking appointment to the post of Public WorkSupervisor, which was rejected – Subsequently, she filed anotherwrit petition – Issuance of direction by the High Court to appointrespondent as Town Planning Commissioner – Respondent soughtappointment but her claim was rejected – Contempt petition by therespondent alleging disobedience wherein the appellants were toldto comply with the order – On appeal, held: Possession of Diplomain Civil Engineering is not entitlement to a public post unless suchpost is advertised and opportunity is given to all the eligiblecandidates to apply for the post in terms of applicable rules – Postof Town Planning Inspector can be filled up either by way ofpromotion or by direct recruitment – Respondent is not in the feedercadre for appointment to the post of Town Planning Inspector – Inthe absence thereof, the High Court committed illegality in directingthe consideration for appointment of the respondent to the post ofTown Planning Inspector – The General Rules provide for promotionfor the post of Revenue Assistant to the post of Revenue Inspectorbut not to the post of Town Planning Inspector – Town PlanningAssistant Draughtsman is the feeder cadre for promotion of TownPlanning Inspector and that the Revenue Assistant is not the feedercadre nor the respondent can claim any right to appointment onlyon the basis of her educational qualifications – Once theappointment to the post of Town Planning Inspector is notcontemplated from amongst the Revenue Inspectors, the respondentcannot claim any parity on the basis of illegality committed by theMunicipality – Thus, the directions by the High Court are wholly

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Awithout any legal basis and, thus, cannot be sustained and is setaside.

Constitution of India: Art. 309 – Appointment to public post– Manner of – Qualification for the post is not the criteria as anyappointment to a public post cannot be made merely on the basis ofBpossessing required educational qualifications – Any appointmentto a public post can be made in the manner provided by theapplicable recruitment rules in terms of law enacted u/Art. 309 orits proviso – In absence thereof, the executive instructions may alsoprescribe the eligibility conditions for appointment to the post.

CAllowing the appeal, the Court

HELD: 1.1 The qualification for the post is not the criteriafor appointment to the public post as any appointment to a publicpost cannot be made merely on the basis of possessing requirededucational qualifications. Any appointment to a public post canDbe made in the manner provided by the applicable recruitmentrules in terms of law enacted under Article 309 of the Constitutionof India or the Rules made in terms of proviso to Article 309 ofthe Constitution of India. In the absence of law and/or the rules,the executive instructions may also prescribe the eligibilityEconditions including the educational qualifications, experience,age limit for appointment to the post. In the instant case, therespondent sought appointment as Revenue Assistant only onthe basis of the fact that she possesses Diploma in CivilEngineering. The possession of Diploma in Civil Engineering isnot entitlement to a public post unless such post is advertisedFand opportunity is given to all the eligible candidates to apply forthe post in terms of applicable rules. [Para 15] [166-E-G]

1.2 The Municipality Commissioner appointed therespondent as Revenue Assistant way back in 2006. However,the greed of the respondent for further promotion or appointmentGto the higher post did not end. She wanted to be appointed asTown Planning Officer again on the strength of her qualification.As per the facts on record, the post of Town Planning Inspectoris governed by the Tamil Nadu Municipal Town Planning ServiceRules, 1970 and that such post can be filled up either by way ofHpromotion or by direct recruitment. The respondent is not in the feeder cadre for appointment to the post of Town PlanningInspector. In the absence of her being in feeder cadre, the HighCourt committed illegality in directing the consideration forappointment of the respondent to the post of Town PlanningInspector. Town Planning Officer Grade II is a promotional postfrom amongst Town Planning Inspectors, who has worked inregular capacity for a period of ten years as per the Rules. TheGeneral Rules provide for promotion for the post of RevenueAssistant to the post of Revenue Inspector but not to the post ofTown Planning Inspector. The Town Planning AssistantDraughtsman is the feeder cadre for promotion of Town PlanningInspector and that the Revenue Assistant is not the feeder cadrenor respondent can claim any right to appointment only on thebasis of her educational qualifications. [Para 16, 17] [167-A-E]

1.3 Appointment to the post of Town Planning Inspectorfrom the post of Revenue Assistant in the Municipality may beillegal and not warranted by the recruitment rules. There cannotbe any parity in the illegality. Once the appointment to the postof Town Planning Inspector is not contemplated from amongstthe Revenue Inspectors, the respondent cannot claim any parityon the basis of illegality committed by Municipality. [Para 19][167-G-H; 168-A]

1.4 The manner in which the High Court issued directionstime and again shows utter disregard to the basic principles oflaw and then calling upon the officers to face contempt if thedirections are not complied with. The orders of the High Courtare patently illegal, unwarranted and cannot be sustained and thus,set aside with cost of Rs.20,000/- as the respondent initiatedtotally untenable and frivolous proceedings. [Para 18, 20] [167-F; 169-B]

Chandigarh Administration & Anr. v. Jagjit Singh &Anr. (1995) 1 SCC 745 : [1995] 1 SCR 126 ; KulwinderPal Singh & Anr. v. State of Punjab & Ors. (2016)6 SCC 532 : [2016] 4 SCR 439 – referred to.

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ACIVIL APPELLATE JURISDICTION : Civil Appeal No. 6565of 2019.

From the Judgment and Order dated 22.03.2017 of the MaduraiBench of Madras High Court in Writ Appeal (MD) No. 163 of 2015.

S. Nanda Kumar, Ms. Deepika Nanda Kumar, Saran Kumar,BP. Palanivelu, P. R. Mandal, Naresh Kumar, Advs. for the Appellants.

Ms. Anitha Shenoy, Sr. Adv., T. Sakthi Kumaran, AnirudhSanganeria, Ms. Karpaga Saravana Priya, Surinder Kumar Gupta, Advs.,for the Respondents.

CThe Judgment of the Court was delivered by HEMANT GUPTA, J.

1. Leave granted.

2. Challenge in the present appeal is to an order passed by theDDivison Bench of Madurai Bench of the Madras High Court on March22, 2017 whereby, an order passed by the learned Single Bench on June18, 2014 was not interfered with.

3. The respondent No. 1 in the present appeal was appointed asRoad Gang Mazdoor on July 12, 1988 by the Kuzhithurai Municipality inEpursuance of the names recommended by the District EmploymentExchange Officer. The respondent filed Writ Petition No. 11518 of 1990before the High Court on the ground that she possesses Diploma in CivilEngineering and that Kuzhithurai Municipality has invited applicationsthrough Employment Exchange for appointment to the post of Overseer.She projected her claim for consideration for appointment as Overseer.FShe filed writ petition before the High Court when her claim was notconsidered for appointment to the post of Overseer. The High Court, onOctober 5, 1990, passed an order directing the appellants to consider theclaim of the respondent for appointment to the post of Overseer alongwith others who have been sponsored through the Employment Exchange.

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4. The services of the respondent were terminated on November30, 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 filedanother OA No. 3517 of 2002 before the Tamil Nadu AdministrativeH

Tribunal[1] wherein, a direction was issued on June 25, 2002 to considerthe claim of the respondent for absorption in the vacancies which mayarise in future.

5. The respondent filed Writ Petition No. 1392 of 2005 before theMadurai Bench of the Madras High Court claiming direction to be givento the appellants for disposal of her representation dated March 19, 2003subsequent to the order passed by the Tribunal. The High Court directedthe appellants to dispose of the representation of the respondent inaccordance with law and in terms of order passed by the Tribunal in OANo. 3517 of 2002.

6. The appellants filed Writ Petition No. 25330 of 2005, aggrievedagainst an order passed by the Tribunal on June 25, 2002. The writpetition was dismissed on account of delay in challenging the order passedand also for the reason that the said direction was given by the Tribunalonly to consider the respondent for absorption against the futurevacancies.

7. The respondent again filed Writ Petition No. 34131 of 2005before the High Court to consider her claim for absorption as Overseer.The said writ petition was decided on December 2, 2005 with a directionto the appellants to consider the claim of the respondent within a periodof eighteen weeks from the date of receipt of copy of the order. TheCommissioner of Municipal Administration, Chennai communicated onMarch 8, 2006 to the State Government with copy to the respondent thatthe claim of the respondent, inter alia, was not acceptable on thefollowing reasons:

“WP No. 3413/2005 and WP No. 37001/2005 dtd.02.12.2005

Direction to CMA and Municipal Commissioner to considerthe claim of the petitioner based on the observation of TNATin O.A. No. 3517/2002.

Out of four persons appointed irregularly as mentionedabove, one died and two others were absorbed in lowerlevel posts like Helper based on TNAT and High Courtorders. When vacancies were available, there are severalirregularities in the original appointment of the case in 1 Tribunal AB

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Aquestion, the main being the violation of the ban of filling upthe vacancy in the post of NMRs. For Road Gang MazdoorDCE qualified candidates should not have been invited. Asthe individual and worked continuously four years havingbeen sponsored by the Employment Exchange she hadacquired right over absorption in regular capacity as perBJudicial Interpretations in several cases. At present thereis no vacancy in Kuzhithurai Municipality suitable to her.

Hence, I request the Government to order for restoring heras NMR for the time being to comply with the Court orders.CAs a negative decision would only prolong the litigation inHigh Court and we have to ultimately loose, as several othersimilar cases had been decided in favour of the individualsfor absorption. The Municipality which has poor financialhealth had already spent substantial money to defend invain the case by way of advocate fees and other travelDexpenses for the staff.”

8. The respondent was informed on May 11, 2006 by theCommissioner Kuzhithurai Municipality that there was a ban imposedby the Government not to appoint casual labour vide Government OrderEdated October 12, 1974 and there was no vacancy to provide suitablepost for her qualifications.

9. Subsequently, Commissioner, Kuzhithurai Municipality passedan order of appointing the respondent as Revenue Assistant against oneof the two vacancies in the pay scale of 3200-85-4900 on August 10,F2006.

10. After securing appointment as Revenue Assistant, therespondent started another round to claim appointment to the post ofPublic Works Supervisor vide letter dated September 8, 2007. Shereiterated such request on May 29, 2008 for appointment to the post ofGPublic Works Supervisor. She filed Writ Petition (MD) No. 6825 of2008, which was disposed of with a direction to the Commissioner ofMunicipal Administration to pass final order on the recommendation ofCommissioner, Kuzhithurai Municipality within eight weeks. Her claimfor appointment as Public Works Overseer was rejected by the DirectorHof Municipal Administration on December 30, 2008.

COMMISSIONER OF MUNICIPAL ADMINISTRATION & ANR.v. M.C. SHEELA EVANJALIN [HEMANT GUPTA, J.]

11. The respondent filed Writ Petition (MD) No. 5698 of 2009which was decided on June 18, 2014 wherein, direction was issued toappoint the respondent as Town Planning Inspector. The said directionwas issued by recording the following findings:

“The petitioner has got a chequered history. She had to obtainher rights through this Court, since 1990 onwards. After continuouslegal battle, eventually, she was appointed as Revenue Inspectorin the year 2006 and she was working as such. As far as theeligibility is concerned, in paragraph Np.7, the fourth respondentadmits that she is qualified for the post, which she seeks for, inthis Writ Petition. However, the respondents state that the rulesalone are not applicable to the petitioner. As rightly pointed out bythe learned counsel appearing on behalf of the petitioner, whenthere is a proceedings of the Municipal Commissioner, NagercoilMunicipality, Kanyakumari District to the effect that both GeneralRules as well as the Tamil Nadu Municipal Town Planning ServiceRules,1970 are followed to fill up the post of Town PlanningInspector and also in view of the facts narrated above, there is nojustifiable reason to ignore the claim of the petitioner, despite thefact that all along, she has obtained favourable orders from thisCourt. If both the rules are applied in the case on hand, the petitionercomes within the zone of consideration. Therefore, the impugnedorder passed by the second respondent in proceedings Na.ka.No.43733/08/KI2 dated 30/12/2008 is quashed. Consequently, thesecond respondent is directed to appoint the petitioner as TownPlanning Inspector, in any one of the Municipalities, within a periodof six weeks from the date of receipt of a copy of this order.While doing so, since the fifth respondent in this Writ Petition hasno say as regards the claim of the petitioner, this Writ Petition isdismissed in respect of the fifth respondent.”

12. The appeal against the said order was dismissed on March22, 2017 which is the order challenged in the present appeal.

13. The respondent on the basis of the order passed by the HighCourt sought appointment to the post of Town Planning Inspector forthe reason that she has Diploma in Civil Engineering with first class onAugust 6, 2014. On April 27, 2017, Commissionerate of Municipal A

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AAdministration, Chennai rejected the claim of the respondent on theground that the post of Town Planning Inspector is governed by TamilNadu Municipal Town Planning Service Rules, 1970[2] and that the methodof appointment for the post of Town Planning Inspector is either bydirect recruitment or by promotion from the post of Town PlanningAssistant Draughtsman. The post of Revenue Assistant is governed byBTamil Nadu Municipal General Service Rules, 1970[3]. Therefore, she isnot holding a feeder category post for appointment to the post of TownPlanning Inspector, and thus not eligible for appointment to the post ofTown Planning Inspector.

C14. The respondent filed contempt petition alleging disobedienceof the order dated March 22, 2017 passed by the High Court. In WritAppeal (MD) No. 163 of 2015 filed by the appellants, the High Courtgave opportunity to the appellants to comply with the order failing whichthe contemnors were called upon to appear in person.

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15. We find that the orders of the High Court are patently illegaland unwarranted. The respondent was initially appointed as Road GangMazdoor. She came to be appointed as Revenue Assistant in pursuanceof the orders passed by the Madras High Court for the reason that sheis qualified for such post. The qualification for the post is not the criteriaEfor appointment to the public post as any appointment to a public postcannot be made merely on the basis of possessing required educationalqualifications. Any appointment to a public post can be made in the mannerprovided by the applicable recruitment rules in terms of law enactedunder Article 309 of the Constitution of India or the Rules made in termsFof proviso to Article 309 of the Constitution of India. In the absence oflaw and/or the rules, the executive instructions may also prescribe theeligibility conditions including the educational qualifications, experience,age limit for appointment to the post. In the present case, the respondentsought appointment as Revenue Assistant only on the basis of the factGthat she possesses Diploma in Civil Engineering. The possession ofDiploma in Civil Engineering is not entitlement to a public post unlesssuch post is advertised and opportunity is given to all the eligible candidatesto apply for the post in terms of applicable rules.

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16. The fact remains that the Commissioner, KuzhithuraiMunicipality has appointed the respondent as Revenue Assistant wayback in 2006. However, the greed of the respondent for further promotionor appointment to the higher post did not end. She wanted to be appointedas Town Planning Officer again on the strength of her qualification ofDiploma in Civil Engineering. As per the facts on record, the post ofTown Planning Inspector is governed by the Tamil Nadu Municipal TownPlanning Service Rules, 1970 and that such post can be filled up eitherby way of promotion or by direct recruitment. The respondent is not inthe feeder cadre for appointment to the post of Town Planning Inspector.In the absence of her being in feeder cadre, the High Court committedillegality in directing the consideration for appointment of the respondentto the post of Town Planning Inspector. It may be noticed that TownPlanning Officer Grade II is a promotional post from amongst TownPlanning Inspectors, who has worked in regular capacity for a period often years as per the Rules.

17. The stand of the respondent that the post of Town PlanningInspector is governed by the General Rules, is not made out as suchRules provide for promotion for the post of Revenue Assistant to thepost of Revenue Inspector but not to the post of Town Planning Inspector.The Town Planning Assistant Draughtsman is the feeder cadre forpromotion of Town Planning Inspector and that the Revenue Assistantis not the feeder cadre nor the respondent can claim any right toappointment only on the basis of her educational qualifications.

18. We find the manner in which the High Court has issueddirections time and again shows utter disregard to the basic principles oflaw and then calling upon the officers to face contempt if the directionsare not complied with. Such directions are wholly without any legal basisand, thus, cannot be sustained.

19. At this stage, it may be mentioned that learned counsel for therespondent referred to appointment to the post of Town PlanningInspector from the post of Revenue Assistant in the NagercoilMunicipality. We find that such appointment may be illegal and notwarranted by the recruitment rules. It is well settled that there cannotbe any parity in the illegality. Once the appointment to the post of TownPlanning Inspector is not contemplated from amongst the RevenueInspectors, the respondent cannot claim any parity on the basis of illegality AB

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Acommitted by Nagercoil Municipality. Reference can be made toChandigarh Administration & Anr. v. Jagjit Singh & Anr.[4] andKulwinder Pal Singh & Anr. v. State of Punjab & Ors.[5]. This Courtin Kulwinder Pal Singh, held as under:

“16. The learned counsel for the appellants contended that whenthe other candidates were appointed in the post against dereservedcategory, the same benefit should also be extended to the appellants.Article 14 of the Constitution of India is not to perpetuate illegalityand it does not envisage negative equalities. In State of U.P. v.Rajkumar Sharma [State of U.P. v. Rajkumar Sharma, (2006)3 SCC 330 : 2006 SCC (L&S) 565] it was held as under: (SCC p.337, para 15)

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“15. Even if in some cases appointments have been made bymistake or wrongly, that does not confer any right on anotherperson. Article 14 of the Constitution does not envisage negativeequality, and if the State committed the mistake it cannot be forcedto perpetuate the same mistake. (See Sneh Prabha v. State ofU.P. [Sneh Prabha v. State of U.P., (1996) 7 SCC 426]; JaipurDevelopment Authority v. Daulat Mal Jain [JaipurDevelopment Authority v. Daulat Mal Jain, (1997) 1 SCC 35]; State of Haryana v. Ram Kumar Mann [State of Haryana v.Ram Kumar Mann, (1997) 3 SCC 321 : 1997 SCC (L&S) 801] ;Faridabad CT Scan Centre v. DG, Health Services [FaridabadCT Scan Centre v. DG, Health Services, (1997) 7 SCC 752] ;Jalandhar Improvement Trust v. Sampuran Singh [JalandharImprovement Trust v. Sampuran Singh, (1999) 3 SCC 494];State of Punjab v. Rajeev Sarwal [State of Punjab v. RajeevSarwal, (1999) 9 SCC 240 : 1999 SCC (L&S) 1171] ; YogeshKumar v. Govt. (NCT of Delhi) [Yogesh Kumar v. Govt. (NCTof Delhi), (2003) 3 SCC 548 : 2003 SCC (L&S) 346] ; Union ofIndia v. International Trading Co. [Union of India v.International Trading Co., (2003) 5 SCC 437] and KasthaNiwarak Grahnirman Sahakari Sanstha Maryadit v. IndoreDevelopment Authority [Kastha Niwarak GrahnirmanSahakari Sanstha Maryadit v. Indore Development Authority,(2006) 2 SCC 604].)”

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4 (1995) 1 SCC 745H5 (2016) 6 SCC 532

COMMISSIONER OF MUNICIPAL ADMINISTRATION & ANR.v. M.C. SHEELA EVANJALIN [HEMANT GUPTA, J.]

Merely because some persons have been granted benefit illegallyor by mistake, it does not confer right upon the appellants to claimequality.”

20. In view of the above, we find that the order of the High Courtdated March 22, 2017 cannot be sustained and is, thus, set aside withcost of Rs.20,000/- as the respondent has initiated totally untenable andfrivolous proceedings. The respondent shall deposit costs with TamilNadu Legal Services Authority within three months from the date of thisjudgment. The appeal is allowed.

Nidhi Jain

Appeal allowed.

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