COMMISSIONER OF MUNICIPAL ADMINISTRATION & ANR.V. M. C. SHEELA EVANJALIN & ORS.versusM. C. SHEELA EVANJALIN & ORS.

                                          1
                         [2019] 11 S.C.R. 159                           159


COMMISSIONER OF MUNICIPAL ADMINISTRATION & ANR.                         A
                                 v.
               M. C. SHEELA EVANJALIN & ORS.
                  (Civil Appeal No. 6565 of 2019)
                         AUGUST 22, 2019                                B
     [L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
      Service Law: Appointment – On facts, initial appointment of
respondent as Road Gang Mazdoor – Respondent claimed
appointment to the post of Overseer on basis of her qualification –
                                                                        C
Several litigations – Pursuant to the order by the High Court,
respondent appointed as Revenue Assistant – Thereafter, respondent
filed writ petition seeking appointment to the post of Public Work
Supervisor, which was rejected – Subsequently, she filed another
writ petition – Issuance of direction by the High Court to appoint
respondent as Town Planning Commissioner – Respondent sought            D
appointment but her claim was rejected – Contempt petition by the
respondent alleging disobedience wherein the appellants were told
to comply with the order – On appeal, held: Possession of Diploma
in Civil Engineering is not entitlement to a public post unless such
post is advertised and opportunity is given to all the eligible
                                                                        E
candidates to apply for the post in terms of applicable rules – Post
of Town Planning Inspector can be filled up either by way of
promotion or by direct recruitment – Respondent is not in the feeder
cadre for appointment to the post of Town Planning Inspector – In
the absence thereof, the High Court committed illegality in directing
the consideration for appointment of the respondent to the post of      F
Town Planning Inspector – The General Rules provide for promotion
for the post of Revenue Assistant to the post of Revenue Inspector
but not to the post of Town Planning Inspector – Town Planning
Assistant Draughtsman is the feeder cadre for promotion of Town
Planning Inspector and that the Revenue Assistant is not the feeder
                                                                        G
cadre nor the respondent can claim any right to appointment only
on the basis of her educational qualifications – Once the
appointment to the post of Town Planning Inspector is not
contemplated from amongst the Revenue Inspectors, the respondent
cannot claim any parity on the basis of illegality committed by the
Municipality – Thus, the directions by the High Court are wholly        H
                                 159
160            SUPREME COURT REPORTS                     [2019] 11 S.C.R.


A     without any legal basis and, thus, cannot be sustained and is set
      aside.
             Constitution of India: Art. 309 – Appointment to public post
      – Manner of – Qualification for the post is not the criteria as any
      appointment to a public post cannot be made merely on the basis of
B     possessing required educational qualifications – Any appointment
      to a public post can be made in the manner provided by the
      applicable recruitment rules in terms of law enacted u/Art. 309 or
      its proviso – In absence thereof, the executive instructions may also
      prescribe the eligibility conditions for appointment to the post.
C           Allowing the appeal, the Court
             HELD: 1.1 The qualification for the post is not the criteria
      for appointment to the public post as any appointment to a public
      post cannot be made merely on the basis of possessing required
      educational qualifications. Any appointment to a public post can
D     be made in the manner provided by the applicable recruitment
      rules in terms of law enacted under Article 309 of the Constitution
      of India or the Rules made in terms of proviso to Article 309 of
      the Constitution of India. In the absence of law and/or the rules,
      the executive instructions may also prescribe the eligibility
E     conditions including the educational qualifications, experience,
      age limit for appointment to the post. In the instant case, the
      respondent sought appointment as Revenue Assistant only on
      the basis of the fact that she possesses Diploma in Civil
      Engineering. The possession of Diploma in Civil Engineering is
      not entitlement to a public post unless such post is advertised
F     and opportunity is given to all the eligible candidates to apply for
      the post in terms of applicable rules. [Para 15] [166-E-G]
            1.2 The Municipality Commissioner appointed the
      respondent as Revenue Assistant way back in 2006. However,
      the greed of the respondent for further promotion or appointment
G     to the higher post did not end. She wanted to be appointed as
      Town Planning Officer again on the strength of her qualification.
      As per the facts on record, the post of Town Planning Inspector
      is governed by the Tamil Nadu Municipal Town Planning Service
      Rules, 1970 and that such post can be filled up either by way of
H     promotion or by direct recruitment. The respondent is not in the
COMMISSIONER OF MUNICIPAL ADMINISTRATION & ANR.                       161
            v. M.C. SHEELA EVANJALIN

feeder cadre for appointment to the post of Town Planning             A
Inspector. In the absence of her being in feeder cadre, the High
Court committed illegality in directing the consideration for
appointment of the respondent to the post of Town Planning
Inspector. Town Planning Officer Grade II is a promotional post
from amongst Town Planning Inspectors, who has worked in
                                                                      B
regular capacity for a period of ten years as per the Rules. The
General Rules provide for promotion for the post of Revenue
Assistant to the post of Revenue Inspector but not to the post of
Town Planning Inspector. The Town Planning Assistant
Draughtsman is the feeder cadre for promotion of Town Planning
Inspector and that the Revenue Assistant is not the feeder cadre      C
nor respondent can claim any right to appointment only on the
basis of her educational qualifications. [Para 16, 17] [167-A-E]
       1.3 Appointment to the post of Town Planning Inspector
from the post of Revenue Assistant in the Municipality may be
illegal and not warranted by the recruitment rules. There cannot      D
be any parity in the illegality. Once the appointment to the post
of Town Planning Inspector is not contemplated from amongst
the Revenue Inspectors, the respondent cannot claim any parity
on the basis of illegality committed by Municipality. [Para 19]
[167-G-H; 168-A]
                                                                      E
       1.4 The manner in which the High Court issued directions
time and again shows utter disregard to the basic principles of
law and then calling upon the officers to face contempt if the
directions are not complied with. The orders of the High Court
are patently illegal, unwarranted and cannot be sustained and thus,
                                                                      F
set aside with cost of Rs.20,000/- as the respondent initiated
totally 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 ; Kulwinder
                                                                      G
      Pal Singh & Anr. v. State of Punjab & Ors. (2016)
      6 SCC 532 : [2016] 4 SCR 439 – referred to.
                      Case Law Reference
[1995] 1 SCR 126               referred to            Para 19
[2016] 4 SCR 439               referred to            Para 19         H
162            SUPREME COURT REPORTS                        [2019] 11 S.C.R.


A           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6565
      of 2019.
           From the Judgment and Order dated 22.03.2017 of the Madurai
      Bench of Madras High Court in Writ Appeal (MD) No. 163 of 2015.
             S. Nanda Kumar, Ms. Deepika Nanda Kumar, Saran Kumar,
B
      P. Palanivelu, P. R. Mandal, Naresh Kumar, Advs. for the Appellants.
             Ms. Anitha Shenoy, Sr. Adv., T. Sakthi Kumaran, Anirudh
      Sanganeria, Ms. Karpaga Saravana Priya, Surinder Kumar Gupta, Advs.,
      for the Respondents.
C           The 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 the
D     Divison Bench of Madurai Bench of the Madras High Court on March
      22, 2017 whereby, an order passed by the learned Single Bench on June
      18, 2014 was not interfered with.
             3. The respondent No. 1 in the present appeal was appointed as
      Road Gang Mazdoor on July 12, 1988 by the Kuzhithurai Municipality in
E     pursuance of the names recommended by the District Employment
      Exchange Officer. The respondent filed Writ Petition No. 11518 of 1990
      before the High Court on the ground that she possesses Diploma in Civil
      Engineering and that Kuzhithurai Municipality has invited applications
      through Employment Exchange for appointment to the post of Overseer.
      She projected her claim for consideration for appointment as Overseer.
F     She filed writ petition before the High Court when her claim was not
      considered for appointment to the post of Overseer. The High Court, on
      October 5, 1990, passed an order directing the appellants to consider the
      claim of the respondent for appointment to the post of Overseer along
      with others who have been sponsored through the Employment Exchange.
G           4. The services of the respondent were terminated on November
      30, 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 filed
H     another OA No. 3517 of 2002 before the Tamil Nadu Administrative
COMMISSIONER OF MUNICIPAL ADMINISTRATION & ANR.                              163
   v. M.C. SHEELA EVANJALIN [HEMANT GUPTA, J.]

Tribunal1 wherein, a direction was issued on June 25, 2002 to consider       A
the claim of the respondent for absorption in the vacancies which may
arise in future.
       5. The respondent filed Writ Petition No. 1392 of 2005 before the
Madurai Bench of the Madras High Court claiming direction to be given
to the appellants for disposal of her representation dated March 19, 2003    B
subsequent to the order passed by the Tribunal. The High Court directed
the appellants to dispose of the representation of the respondent in
accordance with law and in terms of order passed by the Tribunal in OA
No. 3517 of 2002.
       6. The appellants filed Writ Petition No. 25330 of 2005, aggrieved    C
against an order passed by the Tribunal on June 25, 2002. The writ
petition was dismissed on account of delay in challenging the order passed
and also for the reason that the said direction was given by the Tribunal
only to consider the respondent for absorption against the future
vacancies.
                                                                             D
       7. The respondent again filed Writ Petition No. 34131 of 2005
before the High Court to consider her claim for absorption as Overseer.
The said writ petition was decided on December 2, 2005 with a direction
to the appellants to consider the claim of the respondent within a period
of eighteen weeks from the date of receipt of copy of the order. The
                                                                             E
Commissioner of Municipal Administration, Chennai communicated on
March 8, 2006 to the State Government with copy to the respondent that
the claim of the respondent, inter alia, was not acceptable on the
following reasons:
          “WP No. 3413/2005 and WP No. 37001/2005 dtd.
                                                                             F
          02.12.2005
          Direction to CMA and Municipal Commissioner to consider
          the claim of the petitioner based on the observation of TNAT
          in O.A. No. 3517/2002.
          Out of four persons appointed irregularly as mentioned             G
          above, one died and two others were absorbed in lower
          level posts like Helper based on TNAT and High Court
          orders. When vacancies were available, there are several
          irregularities in the original appointment of the case in
1
    Tribunal                                                                 H
164            SUPREME COURT REPORTS                          [2019] 11 S.C.R.


A           question, the main being the violation of the ban of filling up
            the vacancy in the post of NMRs. For Road Gang Mazdoor
            DCE qualified candidates should not have been invited. As
            the individual and worked continuously four years having
            been sponsored by the Employment Exchange she had
            acquired right over absorption in regular capacity as per
B
            Judicial Interpretations in several cases. At present there
            is no vacancy in Kuzhithurai Municipality suitable to her.
            Hence, I request the Government to order for restoring her
            as NMR for the time being to comply with the Court orders.
C           As a negative decision would only prolong the litigation in
            High Court and we have to ultimately loose, as several other
            similar cases had been decided in favour of the individuals
            for absorption. The Municipality which has poor financial
            health had already spent substantial money to defend in
            vain the case by way of advocate fees and other travel
D
            expenses for the staff.”
             8. The respondent was informed on May 11, 2006 by the
      Commissioner Kuzhithurai Municipality that there was a ban imposed
      by the Government not to appoint casual labour vide Government Order
E     dated October 12, 1974 and there was no vacancy to provide suitable
      post for her qualifications.
             9. Subsequently, Commissioner, Kuzhithurai Municipality passed
      an order of appointing the respondent as Revenue Assistant against one
      of the two vacancies in the pay scale of 3200-85-4900 on August 10,
F     2006.
             10. After securing appointment as Revenue Assistant, the
      respondent started another round to claim appointment to the post of
      Public Works Supervisor vide letter dated September 8, 2007. She
      reiterated such request on May 29, 2008 for appointment to the post of
G     Public Works Supervisor. She filed Writ Petition (MD) No. 6825 of
      2008, which was disposed of with a direction to the Commissioner of
      Municipal Administration to pass final order on the recommendation of
      Commissioner, Kuzhithurai Municipality within eight weeks. Her claim
      for appointment as Public Works Overseer was rejected by the Director
H     of Municipal Administration on December 30, 2008.
COMMISSIONER OF MUNICIPAL ADMINISTRATION & ANR.                                  165
   v. M.C. SHEELA EVANJALIN [HEMANT GUPTA, J.]

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

      “The petitioner has got a chequered history. She had to obtain
      her rights through this Court, since 1990 onwards. After continuous        B
      legal battle, eventually, she was appointed as Revenue Inspector
      in the year 2006 and she was working as such. As far as the
      eligibility is concerned, in paragraph Np.7, the fourth respondent
      admits that she is qualified for the post, which she seeks for, in
      this Writ Petition. However, the respondents state that the rules          C
      alone are not applicable to the petitioner. As rightly pointed out by
      the learned counsel appearing on behalf of the petitioner, when
      there is a proceedings of the Municipal Commissioner, Nagercoil
      Municipality, Kanyakumari District to the effect that both General
      Rules as well as the Tamil Nadu Municipal Town Planning Service            D
      Rules,1970 are followed to fill up the post of Town Planning
      Inspector and also in view of the facts narrated above, there is no
      justifiable reason to ignore the claim of the petitioner, despite the
      fact that all along, she has obtained favourable orders from this
      Court. If both the rules are applied in the case on hand, the petitioner
                                                                                 E
      comes within the zone of consideration. Therefore, the impugned
      order passed by the second respondent in proceedings Na.ka.No.
      43733/08/KI2 dated 30/12/2008 is quashed. Consequently, the
      second respondent is directed to appoint the petitioner as Town
      Planning Inspector, in any one of the Municipalities, within a period
      of six weeks from the date of receipt of a copy of this order.             F
      While doing so, since the fifth respondent in this Writ Petition has
      no say as regards the claim of the petitioner, this Writ Petition is
      dismissed in respect of the fifth respondent.”

      12. The appeal against the said order was dismissed on March               G
22, 2017 which is the order challenged in the present appeal.
       13. The respondent on the basis of the order passed by the High
Court sought appointment to the post of Town Planning Inspector for
the reason that she has Diploma in Civil Engineering with first class on
August 6, 2014. On April 27, 2017, Commissionerate of Municipal                  H
166                SUPREME COURT REPORTS                         [2019] 11 S.C.R.


A     Administration, Chennai rejected the claim of the respondent on the
      ground that the post of Town Planning Inspector is governed by Tamil
      Nadu Municipal Town Planning Service Rules, 19702 and that the method
      of appointment for the post of Town Planning Inspector is either by
      direct recruitment or by promotion from the post of Town Planning
      Assistant Draughtsman. The post of Revenue Assistant is governed by
B
      Tamil Nadu Municipal General Service Rules, 19703. Therefore, she is
      not holding a feeder category post for appointment to the post of Town
      Planning Inspector, and thus not eligible for appointment to the post of
      Town Planning Inspector.

C            14. The respondent filed contempt petition alleging disobedience
      of the order dated March 22, 2017 passed by the High Court. In Writ
      Appeal (MD) No. 163 of 2015 filed by the appellants, the High Court
      gave opportunity to the appellants to comply with the order failing which
      the contemnors were called upon to appear in person.
D            15. We find that the orders of the High Court are patently illegal
      and unwarranted. The respondent was initially appointed as Road Gang
      Mazdoor. She came to be appointed as Revenue Assistant in pursuance
      of the orders passed by the Madras High Court for the reason that she
      is qualified for such post. The qualification for the post is not the criteria
E     for appointment to the public post as any appointment to a public post
      cannot be made merely on the basis of possessing required educational
      qualifications. Any appointment to a public post can be made in the manner
      provided by the applicable recruitment rules in terms of law enacted
      under Article 309 of the Constitution of India or the Rules made in terms
F     of proviso to Article 309 of the Constitution of India. In the absence of
      law and/or the rules, the executive instructions may also prescribe the
      eligibility conditions including the educational qualifications, experience,
      age limit for appointment to the post. In the present case, the respondent
      sought appointment as Revenue Assistant only on the basis of the fact
G     that she possesses Diploma in Civil Engineering. The possession of
      Diploma in Civil Engineering is not entitlement to a public post unless
      such post is advertised and opportunity is given to all the eligible candidates
      to apply for the post in terms of applicable rules.

      2
          Rules
H     3
          General Rules
COMMISSIONER OF MUNICIPAL ADMINISTRATION & ANR.                                 167
   v. M.C. SHEELA EVANJALIN [HEMANT GUPTA, J.]

       16. The fact remains that the Commissioner, Kuzhithurai                  A
Municipality has appointed the respondent as Revenue Assistant way
back in 2006. However, the greed of the respondent for further promotion
or appointment to the higher post did not end. She wanted to be appointed
as Town Planning Officer again on the strength of her qualification of
Diploma in Civil Engineering. As per the facts on record, the post of           B
Town Planning Inspector is governed by the Tamil Nadu Municipal Town
Planning Service Rules, 1970 and that such post can be filled up either
by way of promotion or by direct recruitment. The respondent is not in
the feeder cadre for appointment to the post of Town Planning Inspector.
In the absence of her being in feeder cadre, the High Court committed
illegality in directing the consideration for appointment of the respondent     C
to the post of Town Planning Inspector. It may be noticed that Town
Planning Officer Grade II is a promotional post from amongst Town
Planning Inspectors, who has worked in regular capacity for a period of
ten years as per the Rules.
       17. The stand of the respondent that the post of Town Planning           D
Inspector is governed by the General Rules, is not made out as such
Rules provide for promotion for the post of Revenue Assistant to the
post of Revenue Inspector but not to the post of Town Planning Inspector.
The Town Planning Assistant Draughtsman is the feeder cadre for
promotion of Town Planning Inspector and that the Revenue Assistant             E
is not the feeder cadre nor the respondent can claim any right to
appointment only on the basis of her educational qualifications.
       18. We find the manner in which the High Court has issued
directions time and again shows utter disregard to the basic principles of
law and then calling upon the officers to face contempt if the directions       F
are not complied with. Such directions are wholly without any legal basis
and, thus, cannot be sustained.
      19. At this stage, it may be mentioned that learned counsel for the
respondent referred to appointment to the post of Town Planning
Inspector from the post of Revenue Assistant in the Nagercoil                   G
Municipality. We find that such appointment may be illegal and not
warranted by the recruitment rules. It is well settled that there cannot
be any parity in the illegality. Once the appointment to the post of Town
Planning Inspector is not contemplated from amongst the Revenue
Inspectors, the respondent cannot claim any parity on the basis of illegality   H
168               SUPREME COURT REPORTS                           [2019] 11 S.C.R.


A     committed by Nagercoil Municipality. Reference can be made to
      Chandigarh Administration & Anr. v. Jagjit Singh & Anr.4 and
      Kulwinder Pal Singh & Anr. v. State of Punjab & Ors.5. This Court
      in Kulwinder Pal Singh, held as under:
                “16. The learned counsel for the appellants contended that when
B              the other candidates were appointed in the post against dereserved
               category, the same benefit should also be extended to the appellants.
               Article 14 of the Constitution of India is not to perpetuate illegality
               and 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.
C
               337, para 15)
               “15. Even if in some cases appointments have been made by
               mistake or wrongly, that does not confer any right on another
               person. Article 14 of the Constitution does not envisage negative
               equality, and if the State committed the mistake it cannot be forced
D
               to perpetuate the same mistake. (See Sneh Prabha v. State of
               U.P. [Sneh Prabha v. State of U.P., (1996) 7 SCC 426]; Jaipur
               Development Authority v. Daulat Mal Jain [Jaipur
               Development Authority v. Daulat Mal Jain, (1997) 1 SCC 35]
               ; State of Haryana v. Ram Kumar Mann [State of Haryana v.
E              Ram Kumar Mann, (1997) 3 SCC 321 : 1997 SCC (L&S) 801] ;
               Faridabad CT Scan Centre v. DG, Health Services [Faridabad
               CT Scan Centre v. DG, Health Services, (1997) 7 SCC 752] ;
               Jalandhar Improvement Trust v. Sampuran Singh [Jalandhar
               Improvement Trust v. Sampuran Singh, (1999) 3 SCC 494];
               State of Punjab v. Rajeev Sarwal [State of Punjab v. Rajeev
F              Sarwal, (1999) 9 SCC 240 : 1999 SCC (L&S) 1171] ; Yogesh
               Kumar v. Govt. (NCT of Delhi) [Yogesh Kumar v. Govt. (NCT
               of Delhi), (2003) 3 SCC 548 : 2003 SCC (L&S) 346] ; Union of
               India v. International Trading Co. [Union of India v.
               International Trading Co., (2003) 5 SCC 437] and Kastha
G              Niwarak Grahnirman Sahakari Sanstha Maryadit v. Indore
               Development Authority [Kastha Niwarak Grahnirman
               Sahakari Sanstha Maryadit v. Indore Development Authority,
               (2006) 2 SCC 604].)”
      4
          (1995) 1 SCC 745
      5
H         (2016) 6 SCC 532
COMMISSIONER OF MUNICIPAL ADMINISTRATION & ANR.                              169
   v. M.C. SHEELA EVANJALIN [HEMANT GUPTA, J.]

       Merely because some persons have been granted benefit illegally       A
or by mistake, it does not confer right upon the appellants to claim
equality.”
       20. In view of the above, we find that the order of the High Court
dated March 22, 2017 cannot be sustained and is, thus, set aside with
cost of Rs.20,000/- as the respondent has initiated totally untenable and    B
frivolous proceedings. The respondent shall deposit costs with Tamil
Nadu Legal Services Authority within three months from the date of this
judgment. The appeal is allowed.

Nidhi Jain                                                 Appeal allowed.   C




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