REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  6565    OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 18330 OF 2017)

COMMISSIONER OF MUNICIPAL  ADMINISTRATION & ANR. .....APPELLANT(S)

VERSUS

M.C. SHEELA EVANJALIN & ORS. .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1. Leave granted.

2. Challenge  in  the  present  appeal  is  to  an  order  passed  by  the

Division  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

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.  She filed writ petition

Page 1 of 10

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.   

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 another OA No. 3517 of 2002

before the Tamil Nadu Administrative Tribunal1  wherein, a direction

was  issued  on  June  25,  2002  to  consider  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 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

1  Tribunal  

Page 2 of 10

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.

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  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. 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  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 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 Judicial  Interpretations  in  several  cases.   At  present there is no vacancy in Kuzhithurai Municipality suitable to her.

Page 3 of 10

Hence,  I  request  the  Government  to  order  for restoring her as NMR for the time being to comply with the Court  orders.   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 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  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, 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 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

Page 4 of 10

Overseer was rejected by the Director of Municipal Administration

on December 30, 2008.

11. The respondent filed Writ Petition (MD) No. 5698 of 2009 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 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  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 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 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.  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 22,

Page 5 of 10

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

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  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.

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.

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

2  Rules 3  General Rules

Page 6 of 10

reason that she is qualified for such post.  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  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  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 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.   

16. The fact remains that the Commissioner, Kuzhithurai 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  Town Planning Inspector  is  governed  by  the

Tamil Nadu Municipal Town Planning Service Rules, 1970 and that

Page 7 of 10

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  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

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 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

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

Page 8 of 10

Inspector  from  the  post  of  Revenue  Assistant  in  the  Nagercoil

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  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 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. 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 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. Ram Kumar Mann, (1997) 3 SCC 321 : 1997 SCC (L&S) 801] ; Faridabad  CT  Scan  Centre v. DG,  Health

4  (1995) 1 SCC 745 5  (2016) 6 SCC 532

Page 9 of 10

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  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  Niwarak Grahnirman  Sahakari  Sanstha Maryadit v. Indore  Development Authority [Kastha  Niwarak  Grahnirman Sahakari  Sanstha  Maryadit v. Indore Development Authority, (2006) 2 SCC 604].)”

Merely  because  some  persons  have  been  granted benefit illegally 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 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.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; AUGUST 22, 2019.

Page 10 of 10