Dr. S. Dhanasekaran v. The Board Of Governors Rep.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 20.04.2016

CORAM

THE HONOURABLE MR.JUSTICE HULUVADI G.RAMESH AND THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU W.A.No.680 of 2012 and M.P.Nos.1 and 3 of 2012 and M.P.No.1 of 2013 and Contempt Petition No.1267 of 2012

1. Dr.S.Dhanasekaran

2. K.S.Giridharan

3. Dr.T.Gnana Sambandam

4. Dr.G.A.Rathy

5. Dr.P.Malliga

6. Dr.R.Thegarajan .. Appellants in W.A.No.680 of 2012 and petitioners in Contempt Petition No.

Versus

1. The Board of Governors rep.by Chairman

2. The Director

3. The Secretary

4. Dr.V.K.Natarajan

5. Dr.G.Janardhanan

6. Dr.ESM Suresh

7. Dr.Mary Kutty Abraham RR4 to 7 impleaded as party respondents vide order of Court dated 06.12.2012 in M.P.No.2 of 2012 in W.A.No.680 of 2012

8. Dr.Mary Kutty Abraham

9. P.Ganesh Kumar .. Respondents 1 to 9 WA No.680 of 2012 RR8 and 9 impleaded as party respondents vide order of court dated 06.12.2012 in M.P.No.2 of 2012 in W.A.No.680 of 2012 Dr.S.R.K.Prasad, Chairman The Board of Governors Dr.S.Mohan The Director

3. Mr.Ashok Thakur, I.A.S., The Secretary .. Respondents 1 to 3 in Contempt Petition No.1267 of 2012 Prayer :

(i) Writ Appeal against the order of this Court dated 27.03.2012 passed in W.P.No.4811 of 2011. Writ petition praying to call for the records pursuant to the impugned advertisement bearing advertisement No.1/2010 published in The Hindu dt 25.7.2010 on the file of the 2nd respondent herein the Director National Institute of Technical Teachers Training and Research Govt. of India Ministry of Human Resource Development Tharamani Chennai 113 and to quash the same. (ii) Contempt petition under Section 11 of the Contempt of Court Acts, 70/71 to punish the respondents for having committed contempt of court for disobeying the order dated 03.04.2012 passed in M.P.No.1 of 2012 in W.A.No.680 of 2012.

For Appellants : Mr.L.Chandrakumar in W.A.No.680 of 2012 and Contempt petition No.1267 of 2012 For Respondents : Mr.A.Mohan for R2 in W.A.No.680 of 2012 Mr.V.P.Sengottuvel for R3 : Mr.V.Chockalingam for R5 : Mr.V.Ayyadurai for R6 : Mr.Kartik Mukundan for RR8 and 9 RR1, 4 and 7 Not ready For Respondents : Mr.A.Mohan for R2 in Contempt Petition Mr.V.P.Sengottuvel No.1267 of 2012 for R3 R1-Not ready COMMON JUDGMENT (Judgment of the Court was delivered by K.Ravichandrabaabu,J.,) W.A.No.680 of 2012 is filed against the order passed in W.P.No.4811 of 2011 dated 27.03.2012 by the learned Single Judge in closing the writ petition with a direction to the second respondent therein to recruit persons, who possess the requisite qualification, as per the impugned advertisement dated 25.07.2010. During the pendency of this writ appeal, interim order was granted by this Court in M.P.No.1 of 2012 dated 03.04.2012 directing the respondents not to make any appointment as per the Advertisement dated 25.07.2010 until further orders.

2. Contempt petition No.1267 of 2012 is filed by complaining that such interim order granted by this Court on 03.04.2012 in M.P.No.1 of 2012 is violated by making three appointments antedating the same as if they were made earlier to the date of the order passed in the stay petition.

3. Both the Writ Appeal and the Contempt Petition are taken up for hearing today and disposed of by this common order.

4. We heard Mr.L.Chandrakumar, learned counsel appearing for the appellants and the Contempt petitioners and the learned counsel appearing for the respondents.

5. Insofar as the writ appeal is concerned, it is the contention of the learned counsel for the appellants that when the writ petition itself was filed challenging the Advertisement bearing

No.1 of 2010 on the ground that such an advertisement was not in conformity with the qualifications prescribed for recruitment to the subject matter posts, the learned Single Judge was not justified in disposing of the writ petition by simply directing the second respondent therein to recruit persons, who possess the requisite qualification, as per the impugned advertisement. In other words, it is the contention of the learned counsel that if the impugned advertisement itself is found to be wrong and not in conformity with the prescribed qualification to the post for which it was issued, question of directing the second respondent to recruit the persons, who possess the requisite qualification as per the impugned advertisement does not arise and therefore the order of the learned Single Judge is totally erroneous and has to be set aside.

6. We have perused the order passed by the learned single judge. The relevant portion of the said order reads as follows: "3. After hearing the arguments of the respective parties elaborately, the learned counsel for the petitioners fairly submitted that the petitioners' only apprehension is that, persons who are not qualified as per the required norms even as per the impugned advertisement, are sought to be selected and if that act is safe-guarded or restricted by this Court, his endeavour is achieved by filing the writ petition.

4. However, it is pertinent to note that no institution can ever appoint a candidate, who is not even qualified as per the notification or the impugned advertisement, and it is a mandatory requirement for every institution to appoint persons those who are qualified as per the norms prescribed under the notification or the advertisement.

5. Thus, taking into consideration the limited scope of the prayer now made by the learned counsel for the petitioners, suffice to direct the second respondent to recruit persons, who possess the requisite qualification, as per the impugned advertisement dated 25.07.2010. With this direction, the writ petition is closed. Consequently, M.P.No.1 of 2012 has become unnecessary and the same is closed. M.P.Nos.1 and 2 of 2011 are closed. No costs."

7. It is seen from the order of the learned Single Judge that the counsel for the appellants, who appeared before the learned single Judge as the counsel for the writ petitioners only apprehended that persons who are not qualified, as per the required norms and even as per the impugned advertisement, were sought to be selected and if such an attempt is either prevented or restricted by this Court, the endeavour of the writ petitioners is achieved by

filing the writ petition. Taking note of such apprehension and recording the same in the order, the learned Single Judge passed the above order. However, the order passed by the learned Single Judge is sought to be challenged by filing the present writ appeal on very many grounds out of which, one of the grounds raised is that such submission as recorded by the learned Single Judge in para No.3 of the order is not factually correct and it is error apparent on the face of the records.

For proper appreciation, Ground B of the Memorandum of grounds of Writ Appeal is extracted hereunder: [B] It is submitted that the order of the learned Judge in holding that the Counsel fairly submitted the only apprehension is that unqualified persons as per the required norms are sought to be selected as the only ground of attack, suffers an error apparent on the face of records since the prayer in the writ petition was for Certiorari to quash the advertisement which did not specify the AICTE norms/regulations. Therefore, the reasoning by the learned Judge is a total misconception hence liable to be set aside.

Therefore, it is evident from the submission of the learned counsel for the appellants as well as from the above ground raised in the writ appeal that, he is disputing the recording of the reasons stated at para No.3 of the order by contending that, it is not the submission made before the learned Single Judge and therefore it is an error apparent on the face of the record.

8. Needless to say that, if that is the contention of the learned counsel for the appellants, filing of Writ Appeal is not the proper course of action, as it is for the writ petitioners/appellants herein to approach the learned Single Judge, by filing a review, by raising the grounds as raised in this writ appeal.

9. It is also seen that the learned Single Judge has not dealt with any rival contention of the parties or given any finding on the merits of the qualifications as contended before this Court. When there is no finding regarding such contentions, we are of the view that we cannot go into the same for the first time that too, by considering the present writ appeal, especially when the learned Single Judge has directed the second respondent therein to recruit persons, who possess the requisite qualification, as per the impugned advertisement. Therefore, it is for the appellants to go before the learned Single Judge and file a Review Petition and work out their remedy accordingly.

10. In view of the above stated facts and circumstances, we are of the view that the present Writ Appeal is not maintainable and consequently, the same is dismissed, however, without expressing any view on the merits of the matter or the contentions raised by the parties. Liberty is given to the appellants to file a Review before

the learned Single Judge. No costs. Consequently, the connected miscellaneous petitions are closed.

11. Since we are closing the Writ Appeal, as stated supra, no further order is necessary in the Contempt Petition, which arises out of an interim order passed during the pendency of the writ appeal. Accordingly, the Contempt Petition is also closed. Sd/- Asst.Registrar (CO) /true copy/ Sub Asst. Registrar vj2 To

1. The Chairman Board of Governors

2. The Director

3. The Secretary 1 cc to Mr. Ayyadurai, Advocate, Sr. 24374 1 cc to Mr. Chockalingam, Advocate Sr. 24373 1 cc to Mr.L. Chandrakumar, Advocate, Sr. 24495 1 c to Mr. Sengottuvel, Advocate, Sr. 24498 1 cc to M/s. Karthik Mukundan, Advocate, SR. 24595 2 ccs to Mr. Mohan, Advocate, Sr. 24710 Writ Appeal No.680 of 2012 and Contempt Petition No.1267 of 2012 MG (CO) kk 3/5