Research › Search › Judgment

Madras High Court · body

2013 DIGILAW 947 (MAD)

Muniappan v. District Collector

2013-02-14

VINOD K.SHARMA

body2013
JUDGMENT 1. The petitioner has approached this Court with a prayer for issuance of a Writ in the nature of Mandamus, directing the respondents nos.1 and 2 to appoint the petitioner as Sweeper with the 2nd respondent. 2. Though the writ as framed is not competent, as this Court can only direct the respondent to consider the claim of the eligible persons and cannot issue direction for appointment of any individual. However, in this case, after issuance of notice of motion, it was pointed out that the third respondent was selected as "Sweeper cum Sanitary Worker". 3. In view of the stand taken by the learned counsel for the second respondent, this Court, on 23.2.2011 passed the following order: "It is stated by the learned counsel for the second respondent that one Mr. N. Sivakumar has been appointed as Sweeper in second respondent Town Panchayat on 2.3.2009. In view of that he is a necessary party and without his presence, the matter cannot be decided. Therefore, this court suo motu impleads the said person as third respondent in this case. Learned Counsel for the petitioner is permitted to take notice on the newly impleaded party returnable by 14.3.2011. Private notice is also permitted." 4. In pursuance of the order passed by this court, notice was issued to the third respondent. In view of the fact that this court has taken suo-motu action and impleaded the third respondent, it will be appropriate to modify the relief claimed on admitted facts. 5. It is pleaded by the petitioner that the petitioner got his name registered with the Erode District Employment Exchange on 24.3.1998 with Registration No.910/98. The name of the petitioner was sponsored for employment by the District Employment Officer to the second respondent for the post of Sweeper. The petitioner was interviewed on 26.12.2008. The petitioner at the time of interview produced the educational qualification certificate showing that he was a V pass and also the experience of working as Scavanger and Sweeper at Erode Hindu School. 6. Two other ladies were also interviewed along with the petitioner. It is submitted by the petitioner that the petitioner was the best among three. The stand of the writ petitioner is that though interview was held on 26.12.2008, no order of appointment was issued. The petitioner also issued legal notice on 19.2.2009 challenging the denial of the appointment to the petitioner. 7. It is submitted by the petitioner that the petitioner was the best among three. The stand of the writ petitioner is that though interview was held on 26.12.2008, no order of appointment was issued. The petitioner also issued legal notice on 19.2.2009 challenging the denial of the appointment to the petitioner. 7. It is the case of the petitioner that in pursuance to his selection, he was entitled for appointment and has approached this Court by invoking the writ jurisdiction. As already stated above, the writ petition as framed is not maintainable, as even the selected candidate has no right to claim appointment. 8. The counter has been filed by the second respondent. The second respondent submits that in pursuance of the interview held on 26.12.2008, nobody was selected and accordingly, fresh requisition was sent to Employment Exchange. The District Employment Officer, thereafter, sent the names of five persons, which did not include the name of the petitioner. After holding the interview, the third respondent, being the best person, out of five, was selected. The reason for not considering the petitioner for appointment was that there were certain complaints received from general public, that he had wrongly represented himself to be the employee of the second respondent, therefore, was not a fit person for appointment. 9. The learned counsel for the second respondent, contends, that once the petitioner was not even in the zone of consideration, he has no right to challenge the selection of the third respondent nor is entitled to seek appointment as Sweeper cum Sanitary Worker. 10. The third respondent has filed separate counter and has challenged the maintainability of the writ petition on the ground that the writ is not maintainable as the petitioner has not challenge the selection of the third respondent therefore, no relief can be granted to the petitioner. 11. It is also the contention of the learned counsel for the third respondent that the 3rd respondent has been selected by due process of law as he was the best candidate out of candidates sponsored by employment exchange and therefore, no ground is made out to set aside the appointment of the 3rd respondent. 12. On consideration, I find the writ petition deserves to succeed. 12. On consideration, I find the writ petition deserves to succeed. It has been authoritatively laid down by the Hon'ble Supreme Court in the case of State of Orissa and Another vs Mamta Mohanty (2011) 3 SCC 436 that appointment through Employment Exchange alone is violative of Article 14 and 16 of Constitution of India. It was incumbent upon the second respondent to advertise the post so that all the eligible persons could compete for the post. The petitioner could have again applied for the post as his right of consideration could not have been denied by the District Employment Exchange in not sponsoring his name for employment. 13. The stand of the respondent further shows that the action of the respondent cannot be sustained as the reason for non selection of the petitioner was certian complaints which were neither put to the petitioner nor the authenticity of the complaint was verified. It was not open to the second respondent to rely upon the complaint without these being put to the petitioner to know the veracity of such complaint which vitates the selection process. In any case, once the selection process itself is unconstitutional, appointment of the third respondent cannot be sustained. 14. Consequently, the writ petition is allowed, the appointment of the third respondent is ordered to be quashed, with a direction to the second respondent now to fill up the post by giving due publicity afresh along with calling the names from the employment exchange, and thereafter, select the best person, suitable for the post. No costs.