The District Collector v. T.Swaminathan

J U D G M E N T [Judgment of the Court was made by S.M.SUBRAMANIAM, J.] This writ appeal is directed against the order of the learned Single Judge, dated 13.02.2023, passed in W.P.(MD) No.21759 of 2022.

¶2The issue regarding appointment of overqualified candidates in public employment has been decided by this Court vide Judgment dated

29.11.2023 in W.A.(MD) No.1562 of 2023 etc., batch and the relevant paragraphs are extracted hereunder:-

¶8Category-2, Class-IV, Rule 2 of Section 19 of the Special Rules for Tamil Nadu Basic Service denotes the cadre "Cooks". Rule 5(1) of the Special Rules contemplates "age" as follows: "(1) Age: Candidates for appointment by direct recruitment to any of the posts other than those in Classes I and II must not have completed 30 years of age on the date of appointment. Explanation:- For the purpose of the sub-rule, the age limit, in the case of candidate appointed through Employment Exchange, be reckoned from the date of sponsoring of the candidate by the Employment Exchange concerned for appointment to the post. Provided that a candidate belonging to the Scheduled Caste or the Scheduled Tribe shall be eligible for appointment to the above classes if he has not completed 35 years of age on the date of appointment."

¶9Sub-Rule (2) to Rule 5 of the Special Rules contemplates educational qualification, which reads as under: "a) No person shall be eligible for appointment by direct recruitment to any category of the service in class I, II and III unless he has passed the III form or the VIII Standard or the E.S.L.C) of a recognized school (i.e.) a school maintained by or opened with the sanction of the Government of Tamil Nadu or to which recognition has been accorded by the Director of School Education under the Educational Rules of the State. aa) Candidates for appointment by direct recruitment to any of the categories in class IV must be able to read and writ in Tamil."

¶10The above Special Rule unambiguously stipulates that the candidate, who passed 8th Standard from any recognized school, is eligible for appointment to the post of Cook. Further, the candidates for appointment by direct recruitment must be able to read and writ Tamil. These two are the educational qualifications prescribed under the Special Rules for Tamil Nadu Basic Service.

¶11The recruitment notification issued by the Adi Dravidar and Tribal Welfare Department also indicates that the applicants must be able to read and writ Tamil language. Preference will be given to the candidates belonging to SC & ST community and further priority will be given to the applicants, who all are residing in Trichy District. These are all the conditions stipulated in the recruitment notification.

¶12As far as the age limit is concerned, the recruitment notification stipulates that the candidates in between 18-35 years are eligible to submit applications. G.O.(Ms) No.53, Adi Dravidar and Tribal Welfare Department, dated 14.08.2023, stipulates that the candidates must possess the knowledge of reading and writing Tamil. The experience in the field of Cook will also be taken into consideration and priority will be given. Preference will be given to the candidates, who all are sponsored by the District Employment Exchange. The age limit is to be fixed as per the rules in force. Thus, the age limit was fixed as per the rules in force.

¶13The Special Rules will prevail over the General Rules. When the Special Rules contemplate educational qualification and other criteria for selection and appointment, the Special Rules alone will be applicable for the purpose of recruitment to a particular post / category. Therefore, the reliance placed on by the learned Single Judge that the provisions of the State and Subordinate Service Rules will be applicable in the matter of extending the age limit is not correct. The provisions of the State and Subordinate Service is not applicable to the posts / cadres falling under the Tamil Nadu Basic Services. When the Special Rules for Tamil Nadu Basic Services contemplate educational qualifications, age limit, reservation and the procedures for selection, the learned Single Judge has erred in adopting the age limit fixed under the Tamil Nadu State and Subordinate Service Manual, since the category for which the selection process had been undertaken is falling under the Special Rules for the Tamil Nadu Basic Services. More so, the age limit was prescribed in the recruitment notification and the same remained unchallenged by the candidates, who participated in the selection process. After participating in the selection process and admitting the conditions stipulated in the recruitment notification, the candidates cannot turn around and claim that the age limit fixed in the recruitment notification is erroneous. Once the conditions for selection are stipulated, those conditions are binding on the candidates and the Selection Committee and that being the legal position, extending the age limit from 35 to 40 years for SC & ST candidates by the learned Single Judge in exercise of the power of judicial review is beyond its scope and thus, the argument advanced by the learned Additional Advocate General in this context is to be considered in favour of the State.

¶14As far as the selection process is concerned, no irregularity or illegality was established. The selection process was conducted in accordance with the recruitment notification and the rules in force. Regarding the ground relating to selection of overqualified candidates raised by the appellants, we are of the opinion that there is no maximum educational qualification fixed either under the Special Rules or in the recruitment notification and therefore, their selection and appointment cannot be termed as illegal. Thus, the overqualified candidates cannot be terminated from service in the present case.

¶15As far as the overaged candidates are concerned, their selection and appointment is directly in violation of the recruitment notification and therefore, the view taken by the learned Single is running counter to the rules and the recruitment notification and therefore, those overaged candidates are liable to be terminated from service, since their selection was not in consonance with the recruitment notification issued.

¶16The Court in exercise of the power of judicial review cannot extend the age limit contemplated under the recruitment notification issued by the Department. Further, the Court cannot introduce any new Rules for age relaxation for the candidates that too after the completion of selection process and appointment by the Department. Thus, the overaged candidates appointed in violation of the age criteria prescribed in the recruitment notification are liable to be terminated from service and their termination is held to be legal.

¶17The Special Rules unambiguously stipulate that the maximum age limit fixed for the General Category candidates is 30 years and five years extension is granted to the SC/ST candidates (35 years). That being so, the question arises, whether further extension of five years of age limit upto 40 years is permissible or not.

¶18Let us now consider the applicability of the General Rules relied on by the learned counsels appearing for the respective respondents and Section 20(8)(i) & (ii) of the 2016 Act.

¶19The adhoc rules issued in the year 1986 cannot be applied in view of the Special Rules, which is in force and applicable to the post of Cook. The reliance placed on by the learned counsels appearing for the respondents that the Tamil Nadu Adi-Dravidar Welfare Subordinate Service Rules are to be applied is also incorrect. Pertinently, the Tamil Nadu Adi-Dravidar Welfare Subordinate Service Rules are not applicable to the post of "Cook", which is falling under the Special Rules for Tamil Nadu Basic Service. The Tamil Nadu Adi-Dravidar Welfare Subordinate Service Rules deal with various other categories, including Headmasters of Adi Dravidar Schools etc. The post of "Cook" is not falling under the said Rules. Therefore, the arguments advanced on behalf of the respondents that the provisions of the Tamil Nadu Adi-Dravidar Welfare Subordinate Service Rules are to be applied to the case on hand is unacceptable and it is rejected.

¶20Section 20(8)(i) of the 2016 Act denotes that the maximum age limit prescribed in the Special Rules shall not apply to the appointment of a candidate belonging to any of the Scheduled Castes, Scheduled Tribes, Backward Classes, Backward Class Muslims, Most Backward Classes and De-notified Communities or of destitute widows of all castes to a post included in a service for which the Special Rules prescribe a qualification lower than a degree of any University recognized by the University Grants Commission, if such candidate possesses a general educational qualification, which is higher than that referred to in sub-section (1) and he is otherwise qualified for appointment.

¶21Section 20(8)(ii) of the 2016 Act stipulates that to the appointment to a post included in a service of a candidate belonging to any of the Scheduled Castes, Scheduled Tribes, Backward Class Muslims, Most Backward Classes and De-notified Communities or of destitute widows of all castes who holds a degree of any University recognised by the University Grants Commission if the degree he holds is not lower than the degree prescribed in the special rules for appointment to such post and if he is otherwise qualified for appointment. Provided that for direct recruitment to a post included in a service for which the minimum qualification required is not higher than the minimum general educational qualification, the age limit prescribed shall be increased by five years in respect of candidates belonging to Scheduled Castes or Scheduled Tribes or in respect of destitute widows of all castes, who do not possess a general educational qualification, which is higher than the minimum general educational qualification. Provided further that for direct recruitment to a post included in a service for which the minimum qualification required is not higher than the minimum general educational qualification, the age limit prescribed shall be increased by two years in respect of candidates belonging to Backward Classes, Backward Classes Muslims, Most Backward Classes and De-notified Communities who do not possess a general educational qualification, which is higher than the minimum general educational qualification.

¶22In the above context, we have to consider Rule 68 of the 2016 Act, which provides overriding effect of special rules as under: "65. Overriding Effect of special rules.-If any provision of this Act is inconsistent with any provision of the special rules applicable to any particular service, the special rules shall, in respect of that service, prevail over the provisions of this Act."

¶23With reference to Sections 20(8) and 68 of the 2016 Act, interpretation of inconsistency is to be taken note of. The 2016 Act speaks about the general service conditions such as general qualifications, such as age and education, recruitment, commencement of probation, declaration of probation, etc. But the special rules governing the particular post to which recruitment is to be made will speak about the specific age and educational qualifications, method of appointment and specific period of probation, etc., for that post. However, for appointment to a post, both the provisions in this Act and special rules governing the particular post have to be applied. While doing so, inconsistency may arise. We may see as to how the inconsistency as contemplated in this Act will arise. The following hypothetical illustration will explain such inconsistency:

¶24"A" belongs to Scheduled Caste Community has applied for the post of Deputy Collector which has been classified in the special rules for the Tamil Nadu Civil Service. His age is 36 years at the time of applying for the post. The Specific Rule for the Tamil Nadu Civil Service specifically states that for appointment to the post of Deputy Collector, one should not have attained more than 35 years of age.

¶25But, Section 20(8) of the Tamil Nadu Government Servant (Conditions of Service) Act, 2016 stipulates that the maximum age limit prescribed in any special rules or in this Act shall not apply to the appointment of a candidate belonging to any of the Scheduled Castes, Scheduled Tribes, Most Backward Classes / Denotified Communities and Destitute Widows.

¶26"A" in the above illustration is 36 years old and over aged as per the Special Rule for the Tamil Nadu Civil Services governing the post of Deputy Collector vis-a-vis the provisions under Section 20(8) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016. The inconsistency in respect of age is cropped up in this case. In such circumstances, the provisions in the special rule for the Tamil Nadu Civil Service will prevail over the provisions in the above Act. As such "A" is not eligible for appointment to the post of Deputy Collector as per the provisions of the Special Rules for the Tamil Nadu Civil Service on account of over age.

¶27The legal position is that the Special Rules will prevail over the General Rules in the matter of appointment. In the event of inconsistency, the rule is to be interpreted holistically to understand that no discrimination is caused upon amongst the candidates, who all are aspiring to secure public employment. In the present case, age relaxation of five years for the SC/ST candidates has already been granted under the Special Rules for Tamil Nadu Basic Service and in the recruitment notification. Thus, the question of extending the age limit further would not arise at all. When the Special Rules contemplate age limit specifically by providing extension of five years to the candidates belonging to Scheduled Caste and Scheduled Tribe communities, further extension of five years of age limit under the General Rules is impermissible and the General Rules, in such circumstances, would have no application.

¶28Concession of age limit of five years granted to SC/ST candidates for appointment cannot be further extended to another five years by the Court based on the General Rules, which is otherwise not applicable for appointment to the post of "Cook" under the Tamil Nadu Basic Service.

¶29Changes required in the matter of appointment of overqualified candidates and the constitutional perspectives:

29.1. The current position of appointing overqualified candidates in Group-IV Services is resulting in unconstitutionality. To remove the inequality and to provide a level playing field amongst the equals, it is necessary to fix minimum educational qualification and maximum educational qualification for selection and appointment to the Group-IV posts. The candidates possessing minimum educational qualification of E.S.L.C., or S.S.L.C., are permanently deprived of their employment opportunity on account of participation of higher qualified candidates in the process of selection. These lesser qualified candidates cannot compete with the higher qualified candidates in the competitive examinations. Denial of equal opportunity resulting in inequality is infringing the basic rights of the candidates, who all are lesser qualified and longing to secure public employment through open competitive process.

29.2. Persons with limited qualifications have very few job opportunities. By usurping the opportunity of these people, when overqualified persons are appointed, then the balance under Article 14 of the Constitution of India will definitely be tilted. It is not the opinion of the Court that overqualified persons should not be appointed, but that in the process of giving opportunity to the overqualified graduates, the plight of lakhs of lesser qualified persons, who are largely unemployed in our great Nation and whose only source of livelihood depends on these menial jobs must not be forgotten. Constitutional ideal has always been to provide opportunities to all classes of people without any kind of discrimination. This includes the stage for every citizen in this country and to tap the potential of such citizens. But, our country has still not reached the stage of educational ampleness. We are still work in progress. It is no doubt that we will definitely reach great heights in the forthcoming generations. But the reality today must be the concern. The educational disparity exists and some due to financial, social and geographical conditions, are not able to acquire pinnacles of educational profusion. But, that does not mean that they should be denied their opportunity to work in the Government employment for which minimum educational qualifications are enough to carry out the prescribed tasks.

29.3. This Court is not suggesting that overqualified persons are ineligible for menial jobs. But, have we achieved the stage where education has reached the nook and corner of every street? We are working towards it and until we show substantial progress where we have reached the point with every person being graduate with skills of his own, this kind of appointments have to be contemplated. Overqualified persons have jobs of their own competence to compete for and to transgress into jobs specifically requiring lesser qualification will directly strike into Article 14 of the Constitution of India.

29.4. Furthermore, the potential of overqualified persons must be tapped in for jobs that are in need for such skilled candidates. When a person is more than qualified for the job he is accommodated in, it is not only discourages him, but, may lead to instances where his potential is not used to the fullest, which can simultaneously institute moral degeneration in him / her. A person pursues higher qualifications to ensure that he / she is fully equipped to increase his social, financial and intellectual standard in the society. But, even after acquiring a higher qualification, if he is employed in a menial job requiring very little of his potential, it will dilute his moral and social spirit and may lead to under-performance in the said job. Such disheartened performance in the job not only affects the tasks at hand, but also strikes at his right to get an employment, which is equivalent to the qualification acquired by him.

29.5. In a country like India, though the issue of unemployment still persists, misplaced employment will lead to more serious consequences. The right man for the right job can increase the productivity of the job in hand. When highly qualified persons are appointed at unskilled jobs, a) the lesser qualified persons loose their opportunity to get a job; b) the higher qualified persons may not be able to deliver the job passionately; c) the job also may end up being underperformed, and d) highly skilled jobs will loose out on these highly qualified candidates.

29.6. The essence of Human Resource Management is not only ensure that human resources are fully utilized, but also to make sure that the employees are guaranteed a healthy workplace environment and justice cannot be done, if the employees are not satisfied in their respective jobs.

29.7. Prescription of educational qualification for selection is the prerogative of an employer. However, providing equal opportunity in public employment is the constitutional mandate. Level playing field is imminent in the process of selection so as to minimize the inequalities and to provide equal opportunity. The State is duty bound to protect the constitutional rights of the citizens. In the event of appointing overqualified candidates in menial jobs, efficiency in public administration may fall down. The current situation is teaching lessons to the administrators, since they are unable to potentially extract work from the overqualified candidates, who all are appointed in Group-IV posts. Even the High Court administration is facing such issues, since the recent appointments to menial jobs are occupied by overqualified candidates, who all are possessing master degrees and professional degrees. The candidates are either reluctant or evasive or tactical or refusing to perform the duties and responsibilities attached to Group-IV services. The ultimate result would be that the administration cannot provide efficient public administration for the benefit of the people at large, which is the mandate under the Constitution. There is an urgent need to amend the Service Rules in this regard by fixing minimum educational qualifications and maximum educational qualifications for selection and appointment to various posts.

¶30Conclusion:

30.1. In respect of the writ appeals on hand, violations are committed by selecting the overaged candidates with reference to the Special Rules and recruitment notification. The appointed candidates are to be segregated into two categories viz., overqualified candidates and overaged candidates. Regarding appointment of overqualified candidates, their selection and appointment to the post of Cook cannot be termed as illegal, since there is no prescription of maximum educational qualification either in the Special Rules or in the recruitment notification. Thus, the appointment of overqualified candidates in the post of Cook is held to be valid.

30.2. Regarding appointment of overaged candidates, their selection and appointments are directly in violation of Rule 5(1) of the Special Rules for Tamil Nadu Basic Service and the recruitment notification issued by the competent authorities. Once the Special Rules and the recruitment notification unambiguously stipulate that the age limit for general category candidates is 30 years and for SC / ST candidates 35 years, the selection of candidates over and above the age limit fixed under the recruitment notification is directly in violation of the Special Rules and the recruitment notification and it cannot be sustained. Hence, the selection of overaged candidates in violation of the recruitment notification is illegal.

30.3. Accordingly, we are inclined to pass the following orders in modification of the order passed by the learned Single Judge in the writ petitions:

(i) The appellants / competent authorities are directed to permit the selected overqualified candidates to join duty to the post of Cook, based on their respective appointment orders, within a period of four weeks from the date of receipt of a copy of this Judgment.

(ii) The selection and appointment of overaged candidates in violation of Rule 5(1) of the Special Rules for Tamil Nadu Basic Service and the recruitment notification are illegal and these overaged candidates are not entitled to continue in service, as their selection and appointment are illegal.

(iii) The appellants / Government of Tamil Nadu is directed to consider the spirit of the ratio laid down by this Court in the present Judgment regarding selection and appointment of overqualified candidates to Group-IV Services and amend the Rules suitably, by fixing minimum educational qualifications and maximum educational qualifications for the posts falling under the Tamil Nadu Basic Services, at the earliest possible, so as to eliminate discrimination and inequalities and to protect equality clause under the Constitution of India.

30.4. With the above directions, the writ appeals are disposed of. No costs. Consequently, connected miscellaneous petitions are closed.

¶3In terms of the above Judgment, the present writ appeal stands disposed of. No costs. Consequently, connected miscellaneous petition is closed.

[S.M.S., J.] [V.L.N., J.]

21.12.2023 NCC : Index : Internet :

krk To:

1.The District Collector, Tuticorin District, Tuticorin.

2.The District Adi-Dravidar and Tribal Welfare Officer, Adi-Dravidar and Tribal Welfare Officer, Thoothukudi District.

3.The Special Tahsildar, Adi Dravidar and Tribal Welfare Department , Tiruchendur,

S.M.SUBRAMANIAM, J. and V . LAKSHMINARAYANAN , J . krk and C.M.P.(MD) No.12350 of 2023

21.12.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21.12.2023 CORAM: THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM and THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN and C.M.P.(MD) No.12350 of 2023 1.The District Collector Tuticorin District Tuticorin 2.The District Adi-Dravidar and Tribal Welfare Officer Thoothukudi District 3.The Special Tahsildar Adi Dravidar and Tribal Welfare Department Tiruchendur ... Appellants -vs- T.Swaminathan ... Respondent Writ Appeal filed under Clause 15 of Letters Patent to set aside the order, dated 13.02.2023, passed in W.P.(MD) No.21759 of 2022, on the file of this Court. For Appellants : Mr.T.Amjadkhan Government Advocate For Respondent : Mr.M.Jerin Mathew for Mr.M.E.Ilango