Saraswathi vs The Government of Tamilnadu

Honourable Mr. Justice R. Sudhakar

This writ petition is filed to call for the records pertaining to proceedings vide GO Ms.226, Higher Education (D1) Department, dated 2.7.2002

issued by the first respondent and quash the same. The petitioner-widow and a destitute woman applied for a post of scavenger in the 4th

respondent private college and has appointed on 30.5.1992 subject to the approval of the Joint Director of Collegiate Education, Tirunelveli. The

third respondent by proceedings dated 15.4.1993 approved the appointment of the petitioner as scavenger to the 4th respondent college. The 4th

respondent college received the grant and disbursed the salary to the petitioner. Thereafter, by proceedings dated 10.9.1993, the services of the

petitioner was regularised with effect from 1.6.1992. By proceedings dated 18.9.1997, the third respondent cancelled the appointment of the

petitioner based on the audit objections. The order cancelling the appointment was stayed by this Court in W.P.No. 15164 of 1997 and

subsequently, it was finally disposed on 3.2.2000 and the relevant portion of the order in paragraphs 11, 12, and 14 to 19 reads as follows:

Before referring to the rival contentions, it is essential to refer the very order by which the appointment of the petitioner had been approved by the

third respondent and there is an admission that the third respondent is the competent authority. The order of approval of appointment dated

15.4.1993 specifically refers to the fact that the petitioner is a destitute widow and taking into consideration of communal rotation No. 1 for

backward class, the writ petitioner a member of the backward class had been appointed. Thus since 1.6.1992 the writ petitioner had been

appointed and the said appointment has been confirmed. The petitioner continued to work. The very order granting approval for the appointment

of the petitioner would show that the special circumstances namely the petitioner a destitute widow had been taken into consideration and

appointment has been approved as a special case. Thus there is application of mind by the competent authority when it approved the appointment.

This approval was by the comptent authority. It is to be further pointed out that there is no concealment or suppression of the facts either by the

petitioner or by the fourth-respondent college.

It is not as if the third respondent is not competent to approve the appointment. The third respondent also proceeded on the basis that the

petitioner had been appointed by following the rule of communal rotation and the said vacancy being No. (1) had been filled up by a person

belonging to the Backward Class. After lapse of six long years, the respondents 1 and 2 have been sanctioning the grant and the petitioner was

being paid regularly.

(14) The second respondent while passing the order has not not chosen to take into consideration of the special circumstances and in particular the

petitioner being a destitute widow and the post being a Scavenger post in a Women College. There is no justification to set aside the order of

appointment after six long years and that too without affording an opportunity. There should be a purposeful attempt to implement the rule of

communal rotation and when the earlier last grade post had been filled up by appointing a member of the Scheduled Caste, there is every

justification to fill up the post of scavenger even though the writ petitioner-appointee belong to Backward class.

(15) Let us not forget that the writ petitioner is a poor destitute widow and there is no justification at all to deny the benefit of valid appointment

and approval after six long years. The respondents are also estopped. The second respondent would have directed that the next vacancy be filled

up by a member of the Scheduled Caste and for the first time the reservation is being implemented in respect of a private college. As such, there is

every justification for a deviation which deviation could always be set right by filling up the next vacancy by following the communal rotation.

Admittedly, the impugned order has been passed without following the procedure and without affording an opportunity and there is neither any

justification nor there is any consideration of the fact that the writ petitioner is a poor destitute widow. Though the petitioner belong to backward

class she had volunteered to take up the post of Scavenger in a Women''s College, a special circumstance which the respondent, should not have

lost sight.

(16) The condition of the writ petitioner is so pathetic and this aspect of the matter has been taken into consideration by the 3rd respondent while

giving approval. The second respondent should have approached the problem with certain amount of munificence and consideration for the poor

widow instead of finding fault with the appointment after six long years on the premise that the rule of communal rotation had not been followed.

(17) It would have been better for the second respondent to have taken up the matter with the first respondent for according relaxation if so

required and also permitting the college to fill up the next vacancy by appointing a member of the scheduled caste. Further, the post being a

Scavenger, a last grade and menial post, there is no reason at all to deny the said post to a poor destitute widow after several years of her

appointment. There is definite violation of principles of natural justice. To a certain extent this Court will be justified in holding that the very

appointment of the petitioner is by relaxation and the very consideration of the material aspects by the third respondent would also show that the

third respondent had applied its mind.

(18) It is fairly stated that no notice has been issued before passing the impugned order, which also militates against the order. Thus there is

violation of principles of natural justice as well. This Court holds that there is no justification at all for the second respondent to interfere with the

orders of appointment of a destitute women and that too the menial post of Scavenger after several years. This may lead to denial of livelihood to

the writ petitioner and result in violation of Article 21. There is no justification to cancel the appointment after several years when the writ petitioner

is a destitute widow and it is not as if any other individual had come forward claiming rule of reservation. The rule of reservation could be

implemented by subsequently filling up the next vacancy from the member of the scheduled caste or such socially backward community to which,

the vacancy is reserved by applying the rule of communal reservation. The parties have not placed the relevant Government Orders for obvious

reasons.

(19) For all the above reasons, the impugned proceedings are quashed. The rule nisi is made absolute and the petitioner shall be allowed to work

permanently as a valid appointee. The parties shall bear their respective costs.

In the above decision, the order of cancellation of the appointment was quashed and the petitioner was allowed to work out her remedy as a

valid appointee. In effect, the order of approval dated 15.4.1993 and the subsequent regularisation is restored automatically. For whatever reason,

the department proceeded to take up the matter as if there was a direction from this Court in the earlier order and passed the present proceedings

in G.O.No. 226, Higher Education (D1) Department, dated 2.7.2002 and while granting relaxation from the Rule of reservation, the respondents

were directed to recover the salary paid for the period from 1.6.92 till the date of passing the G.O. i.e. on 2.7.2002. Aggrieved by this, the present

writ petition has been filed.

It is the contention of the petitioner that since the order of cancellation has been quashed and the appointment has been approved as valid and

permanent one, the question of recovery of salary from 1.6.92 to 1.7.2002 does not arise. This plea of the petitioner appears to be justified as in

the earlier order of this Court in WP No. 15164 of 1997 dated 3.2.2000, the cancellation order was quashed and the petitioner was directed to

do work permanently as a valid appointee, which means, the appointment order dated 3.0.5.1992, approved on 15.4.1993 and subsequently

regularised on 10.9.93 is restored. Therefore, the question of recovery of salary already paid as a regular appointee does not arise. The

Government Order insofar the order of recovery of salary already paid from 1.6.1992 is totally unjustified and has no legal basis. In any event, the

order passed by this Court in W.P.No. 15165 of 1997 has not been appealed and has become final.

The learned counsel for the petitioner stated that by over sight, they failed to challenge the consequential order dated 12.8.2002 passed by the

Joint Director of Collegiate Education, which is based on the impugned Government Order. Since the consequential order affects the salary and

other benefits that will accrue to the petitioner in the event of succeeding in the writ petition, considering the plea made by the counsel for the

petitioner, this Court is inclined to amend the writ petition as follows:

to quash the direction issued by the first respondent in the consequential order dated 12.8.2002 refixing the pay passed by the third respondent.

Insofar as the consequential order passed by the third respondent is concerned, it is based on the premise that the appointment is regularised only

after the issuance of the Government Order and therefore, the salary has been refixed. Since the G.O. 226 Higher Education (D1) Department,

dated 2.7.2002 is set aside, the consequential order passed by the third respondent will have no effect in law and that since the appointment

originally made in 1992 and the approval is accepted by this Court, the question of refixing the salary does not arise and therefore, the

consequential order of the third respondent is also set aside. Accordingly, this writ petition is allowed. No costs.