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Judgment
R.S. Ramanathan, J.—The Petitioner is working as Lecturer in Tamil in thefifth Respondent college and according to the Petitioner, she was
appointed on consolidated basis against two posts for Tamil Lecturers on the basis of G.O. Ms. No. 220 (Higher Education E2Department) dated
12.6.2003 as modified by the Government letter dated 5.9.2006. The Petitioner is working on consolidated salary and there are two sanctioned
posts for Tamil Lecturers and the Petitioner and another person by name Latha Maheswari we reappointed on consolidated basis for those two
posts and later, the second Respondent reduced the number of Tamil Lecturer post to one and therefore, the Petitioner was not given approval by
the third Respondent. While the Petitioner is working as Tamil Lecturer inthe fifth Respondent college, the Government sanctioned one more post
for Tamil Lecturer vide Government letter dated 3.4.2007. Though the Petitioner was working in the fifth Respondent college and was eligible to
be considered for the newly sanctioned post for Tamil Lecturer, the fifth Respondent college invited candidates for the post of Tamil Lecturer by
advertisement dated3.10.2007 and the last date for submitting the applications was12.10.2007. According to the Petitioner, the fifth Respondent
should not have issued the advertisement and ought to have appointed the Petitioner in that post. Nevertheless, by way of abundant caution, she
submitted her application as she apprehended that the fifth Respondent may appoint an outsider under the guise of conducting interview. The
Petitioner also filed W.P.(MD) No. 8776 of 2007 seeking for issuance of a writ of mandamus directing the Respondents to regularise the
Petitioner''s appointment as Lecturer in Tamil in the fifth Respondent college with effect from 3.7.2002 and that petition was disposed of by
directing the fifth Respondent to consider the representation of the Petitioner and the fifth Respondent, by proceedings dated5.9.2008, informed
the Petitioner that the claim of the Petitioner for regularization cannot be considered as there was only one approved post vacant and that was filled
by Latha Maheswari andher name was approved by the Joint Director of Collegiate Education. This order of the fifth Respondent dated 5.9.2008
is challenged in this writ petition.
Respondents 1 to 3 filed counter contending that they are unnecessary parties to the proceedings as no relief is claimed as against them. It is
further stated that there is one regular post of Lecturer in Tamil in the fifth Respondent college from30.6.2000 and the appointment has to be made
only by the fifth Respondent and thereafter, the third Respondent has to grant approval on the basis of the merits and in the absence of any relief
against Respondents 1 to 3, they are unnecessary parties.
The fifth Respondent filed detailed counter contending that by G.O. Ms. No. 220 (Higher Education E2 Department) dated 12.6.2003,
permission was granted to fill up six posts in the college on payment of consolidated salary and out of six posts, two posts were allotted for Tamil
Lecturers and the Petitioner and another by name Latha Maheswari were appointed in those two posts on consolidated salary and Latha
Maheswari was senior to the Petitioner. It is further stated that the third Respondent Joint Director sanctioned only one post for Tamil Lecturer and
therefore, for that post, Latha Maheswari, who was senior to the Petitioner, was appointed even though the fifth Respondent recommended the
name of the Petitioner and Latha Maheswari. As the sanctioned post was only one, that was filled up by appointing Latha Maheswari and
thereafter, another post was created for Tamil Lecturer and for filling that post, publication was made in the Daily Thanthi on 3.10.2007 inviting
applications to fill up the vacancy and the Petitioner and others have applied for that post and the Petitioner also filed W.P. No. 8776 of 2007
challenging the paper publication calling for applications for the post of Tamil Lecturer and as per the direction of this Court, the Petitioner was
informed that against one sanctioned post, Latha Maheswari was appointed and therefore, the request of the Petitioner to regularise her
candidature cannot be considered and the Petitioner is working in the unsanctioned post temporarily on contract basis and she has no right to seek
for regularization.
The sixth Respondent was impleaded by order dated7.9.2009 in M.P. No. 1 of 2009. The sixth Respondent also applied for the post of Tamil
Lecturer and by virtue of interim order passed by this Court in this writ petition, the fifth Respondent was permitted to conduct interview, but,
prohibited from announcing the results and therefore, the sixth Respondent filed application to impaled herself and that petition was allowed. The
sixth Respondent also disputed the claim of the Petitioner by contending that she cannot have any right to that post as she was appointed
temporarily on consolidated pay and having participated in the interview, she cannot question the selection process.
The points for consideration that arise in this writ petition is whether the Petitioner was appointed against the sanctioned post; and whether the
Petitioner is entitled to be considered for appointment to the post of Tamil Lecturer.
Mr. Isaac Mohanlal, learned Counsel for the Petitioner submitted that in the year 2002, the Petitioner was appointed on temporary basis as per
G.O. Ms. No. 220 (Higher Education E2Department) dated 12.6.2003 and by virtue of the Government letter dated 5.9.2006, the sanctioned
post for Tamil Lecturer was two and the Petitioner and Latha Maheswari were the two persons appointed on consolidated pay and against the
two sanctioned posts, those two persons were appointed and therefore, it cannot be contended now that there was only one sanctioned post and
in that post, Latha Maheswari was appointed and only thereafter, another sanctioned post was created and for that applications were called for
from the public. He further submitted that even assuming that another post was created subsequently, having regard to the fact that the Petitioner is
working in the college for more than five years, the Petitioner ought to have been considered for that post and it cannot be stated that the
Petitioner''s request for regularization cannot be considered as she was not appointed against sanctioned post. Mr. Isaac Mohanlal, reiterated that
the contention of the fifth Respondent that the Petitioner was not appointed against any sanctioned post is erroneous and as per G.O. Ms. No. 220
(Higher Education E2 Department) dated 12.6.2003,against two vacancies for the post of Tamil Lecturer, the Petitioner and Latha Maheswari
were appointed and therefore, the Petitioner was initially appointed against sanctioned post and therefore, when a vacancy arose subsequently, the
Petitioner ought to have been considered and the fifth Respondent should not have called for applications from the outsiders.
Learned Counsel for the fifth Respondent submitted that the Petitioner and Latha Maheswari were appointed as per G.O. Ms. No. 220 (Higher
Education E2 Department) dated 12.6.2003 and there was only one sanctioned post for Tamil Lecturer and Latha Maheswari, being senior, was
appointed in that post and subsequently one sanctioned post became vacant and for filling up that post, applications were called for by issuing
advertisement and that is the usual procedure for appointing any person for that post and even on earlier occasion when the Petitioner and Latha
Maheswari were appointed, it was done only after inviting applications from public and therefore, it cannot be contended now by the Petitioner
that the fifth Respondent should not consider the applications from outsiders and consider the Petitioner and appoint her in the new post.
Mr. K.N. Thampi, learned Counsel for the sixth Respondent submitted that the Petitioner has no locus stand to maintain the writ petition and she
is stopped from challenging the advertisement or the impugned order as she has participated in the interview in response to the advertisement dated
3.10.2007 and having applied for the post, she has filed the writ petition and got injunction order and therefore, the conduct of the Petitioner would
make it clear that she is stopped from questioning the impugned order or the publication and in support of his contention, he relied upon the
judgments reported in
I.L. Honnegouda v. State of Karnataka AIR 1978 SC 28
Om Prakash Shukla Vs. Akhilesh Kumar Shukla and Others,
Dr. R. Murali Vs. Dr. R. Kamalakkannan and three others,
It is seen from the affidavit filed in support of the petition that the Petitioner was appointed as Lecturer in Tamil on3.7.2002 and according to the
Petitioner, she was appointed against an approved vacancy. Nevertheless, it is also admitted byte Petitioner that by G.O. Ms. No. 220 (Higher
Education E2Department) dated 12.6.2003, the Commissioner, H.R.& C.E permitted the fifth Respondent college to fill up six Lecturer posts
consisting of two posts in Tamil and for filling up those two posts, applications were invited from all candidates by making wide publication in the
newspaper and the Petitioner and others submitted applications and on the basis of the interview conducted by the college, the Petitioner was
appointed as Lecturer in Tamil on consolidated pay from 30.12.2003. Therefore, from the admitted facts made in the affidavit, it cannot be stated
that the Petitioner was appointed against a sanctioned post and as per G.O. Ms. No. 220 dated 12.6.2003, six persons were appointed on
consolidated pay and the Petitioner and Latha Maheswari were two persons appointed for the post of Lecturer in Tamil as per the above
Government Order. Further, it has been made clear in the letter of appointment dated 30.12.2003 that the appointment is only temporary and on
contract basis and the persons cannot claim any right to that post. Therefore, it cannot be stated that the Petitioner was appointed against a
sanctioned post even in the year 2002. Further, the fifth Respondent, in his counter affidavit clearly stated that the Petitioner was not appointed
against a regular post. Respondents 1 to 3 also stated in their counter affidavit that there was only one sanctioned post for Tamil Lecturer in the
fifth Respondent college. Taking all these facts, it can easily be concluded that there was only one sanctioned post for Tamil Lecturer in the fifth
Respondent college and Latha Maheswari, being the senior to the Petitioner, was considered for that post and hence, there is no question of
regularization of the services of the Petitioner on the ground that she is working in the college for more than five years.
Further, it is seen from the advertisement dated3.10.2007 that one post for Tamil Lecturer was available to be filled up and for that post
advertisement was made. The Petitioner also applied for that post and immediately thereafter, she also filed W.P. No. 8776 of 2007 and obtained
injunction order on 17.12.2008. By reason of the injunction order granted by this court, the interview was permitted to be conducted, but, the fifth
Respondent was prohibited from publishing the result. In this connection, the judgments referred to by Mr. K.N. Thampi, learned Counsel for the
sixth Respondent have to be considered. In the judgment in I.L. Honnegouda v. State of Karnataka AIR 1978 SC 28, it has been held that a
person having applied for the post and appeared for the interview, cannot challenge the constitutionality of rules under which applications were
called for. In the judgment in Om Prakash Shukla Vs. Akhilesh Kumar Shukla and Others, , the Honorable Court has observed that the candidate
who had challenged the examination appeared for examination without protest and he filed the writ petition only after he realized that he would not
succeeding the examination and in such circumstances, the Honorable Supreme Court has held that the candidate cannot challenge the examination
after having participated in the interview. In the Full Bench judgment in Dr. R. Murali Vs. Dr. R. Kamalakkannan and three others, , also the same
principle has been reiterated in Para 46. Therefore, it is clear from the above judgments that a person, having participated in the interview in
response to the advertisement, cannot challenge the selection process. Though inthe writ petition, the Petitioner has challenged the order of thefifth
Respondent refusing to regularise the appointment of the Petitioner, in fact, she has only challenged the advertisement dated 3.10.2007 calling for
applications and as per the Supreme Court judgments cited above, the Petitioner is not entitled to challenge the same and she is stopped from
challenging the same. Further, as held supra, the Petitioner was not originally appointed against the sanctioned post and one more post was created
only in the year 2007 and for that post, applications were called for and hence, it cannot be stated that the Petitioner is entitled to be appointed for
that post. Therefore, the two points that arose for consideration are answered against the Petitioner.
In the result, the writ petition fails and the same is dismissed. No costs. Consequently, the miscellaneous petitions are dismissed.