Union Of India v. M.Gopalakrishnan

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 28.09.2021 Coram THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN AND THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN W.A.No.1872 of 2018 and CMP.No.15003 of 2018

1. Union of India through Secretary, Ministry of Social Justice and Empowerment, Government of India, New Delhi.

2. National Institute for the Visually Handicapped, 116, Rajpur Road, District Dehradun, through its Director

3. National Institute for the Visually Handicapped, Regional Centre, Rep. by its Regional Director, Karaiyanchavadi, Poonamalle, Chennai ...Appellants vs.

M.Gopalakrishnan

...Respondent

Prayer: Writ appeal is filed under clause 15 of the Letter Patent praying to set aside the order dated 02.11.2017 made in W.P.No.31810 of 2006.

Prayer in W.P.No.31810 of 2006:

Writ petition filed under Article 226 of the Constitution of India praying for issuance of a certiorarified Mandamus to call for the records pursuant to the Notification made in Employment News dated 24.6.2006 by the 2nd respondent calling for the application from the new candidates for the post of vocational Training and Placement Officer and to quash the same and to direct the respondents to regularize the services of the petitioner herein as Vocational Training and Placement Officer in the office of the 3rd respondent herein.

For Appellants : Mr. V. Chandrasekeran for 1st appellant Mr. R. Priyakumar for 2nd & 3rd appellants For Respondent : Mr.B.Vijayakumar

JUDGMENT

(Judgement of the Court was made by S.VAIDYANATHAN, J.) The present writ appeal has been preferred against the order dated 02.11.2017 in W.P.No.31810 of 2006.

2. According to the appellants, there was an advertisement in the newspaper for one post of Vocational Training and Placement Officer reserved for OBC and that the writ petitioner/respondent herein who is a visually impaired person has been appointed as a 'Braille Shorthand Instructor'. While so, he was asked to perform the additional duties of the Placement Officer, therefore he has been sought to be regularised on the phase of the notification. However, the writ petitioner does not fall under any of the categories earmarked for OBC and that he has not participated in the direct recruitment for the said post to be considered for appointment.

The learned counsel for the appellants further submit that in the light of the fact that it is reserved for OBC, the writ petitioner being a Scheduled Caste candidate cannot be asked to be posted in a post as there cannot be any direct recruitment for Scheduled Caste when the post is earmarked for OBC. Hence the learned Single Judge ought not to have directed regularisation of the writ petitioner services as Vocational Training and Placement Officer from the date of his initial appointment with all other benefits. He would further submit that now the writ petitioner/respondent herein has attained the age of superannuation.

3. The learned counsel for the respondent/writ petitioner would contend that he has joined the services in the year 1986 as stated by the appellants herein but he was appointed at Dehradurn and thereafter transferred to Chennai in the year 1994. Pursuant to an office order dated 26.08.1994, he was asked to look after the Vocational Training aspects of the centre, apart from the duties of the 'Braille Shorthand Instructor'. The learned Single Judge taking note of the fact that the respondent's herein services have been utilised in both the posts and that the respondent was in service for more than three decades and that he has been discharging work of both the posts namely short hand instructor and the Vocational Training and Placement Officer from the year 1994 has rightly directed the

appellants to regularise the services of the writ petitioner. Hence even though the post has been reserved for OBC the fact that the writ petitioner/respondent herein has been discharging work for nearly three decades shall not be disturbed from the present position was the observation made by the learned Single Judge which need not be interfered with.

4. Heard both parties and perused the materials available on record.

5. The facts that the writ petitioner joined the service in the year 1986 as Braille Shorthand Instructor by the second appellant which organisation is functioning under the control of the first appellant Ministry and transferred from Dehradun to Chennai in the year 1988 and performing work of Shorthand instructor apart from Vocational Training aspect in the centre from 01.09.1994 are not in dispute. From that date onwards he has been discharging the work of both the posts and retired from service. While considering the notification published in the newspaper dated 24.06.2006 the learned Single Judge has observed as follows:- "8.

This Court after having considered the rival submissions of the learned counsel for the parties and perusing the documents and pleadings placed on record, is in full agreement with the contentions putforth by the learned counsel for the petitioner. The petitioner having rendered the services for more than 20 years in the post of Vocational Training and Placement Officer, his services required for the Institute in a larger public interest and for the benefit of the students, who are studying in the Institute.

Although this Court is conscious of the fact that as per the notification, the said post is reserved for OBC category, nevertheless this Court has to consider the larger interest of the petitioner vis-a-vis Institute and therefore, hold that the petitioner is entitled to regularisation of his services as Vocational Training and Placement Officer, in view of his long uninterrupted service. According to the petitioner, he is fully qualified for the post, which fact has not been disputed in the counter affidavit. Moreover, by virtue of the admitted fact that the petitioner has been continued for more than 20 years in the same post, even assuming that there is any short coming in the qualification, the same cannot be held against the petitioner.

Particularly, the Institute itself has extracted the services of the petitioner in the same post for more than 20 years.

9.As regards the reservation to the post in the OBC category is concerned, this Court is of the view that the constitutional protection given to the Schedule Cast category must prevail and preference to OBC category cannot result in negation of the right of the persons belonging to SC category. While holding so, this Court is of the view that the very notification for the subject post is arbitrary, unreasonable and irrational since already the petitioner was available for being regularly appointed and such being the case, the question of notifying the vacancy for direct recruitment does not arise at all. Therefore, this Court has no other option except to conclude that the impugned notification in respect of the subject post namely the Vocational training and placement Officer calling for applications from open competition is liable to the interfered with".

10. In view of the above observation, it is very clear that the writ petitioner was employed for more than two decades and after having extracted the work, it cannot be contended that an advertisement has been made and that the writ petitioner is not eligible to be appointed or regularised as the writ petitioner has been asked to perform additional work cannot be accepted. The appellants 2 & 3 ought to have taken steps to regularise the services of the writ petitioner who belongs to Scheduled Caste Community. Now that the writ petitioner has already retired from service.

Therefore, there will not be any embargo for publishing fresh advertisement for the said post based on the rules available and as the writ petitioner has discharged both the works, he would be entitled to get all the benefits as if he has discharged the service as the Vocational Training and Placement Officer and the terminal benefits have got to be released. In fact as per the pension rules, the last ten months drawn pay have to be taken into account for the purpose of settling the pensionary and other benefits. In view of the same, we are of the view that there is no reason to interfere with the order of the learned Single Judge and the writ appeal is dismissed. No costs. Consequently connected miscellaneous petition is also closed.

Sd/- Assistant Registrar(CS IV) True Copy// Sub Assistant Registrar

dpq To

1. The Secretary, Union of India, Ministry of Social Justice and Empowerment, Government of India, New Delhi.

2. The Director National Institute for the Visually Handicapped, 116, Rajpur Road, District Dehradun.

3. The Regional Director, National Institute for the Visually Handicapped, Regional Centre, Karaiyanchavadi, Poonamalle, Chennai.

+1cc to Mr.B.Vijayakumar, Advocate, S.R.No.50653 W.A.No.1872 of 2018 and CMP.No.15003 of 2018 RR[co] NSK 03/12/2021