M ANANDAN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE petitioner was appointed as Junior Assistant by proceedings dated 21.03.1990 of the Personal Assistant (General) to the District Collector and he joined in the Dharmapuri Collectorate on 21.03.1990. On 26.03.1990, he received a telegram that his sister died, therefore, he intimated the same to the Personal Assistant (General) to the District Collector on the same day i.e., 26.03.1990 by a telegram seeking leave and proceeded to Krishnagiri. When he reported back for duty, he was informed that persons appointed along with him were already ousted for want of vacancy and as such there was no vacancy to take him back in service. Subsequently, an order dated 26.03.1990 was also passed to that effect. According to the petitioner, the Government issued G.O. Ms. No. 433, P & AR Department dated 14.02.1993 for conducting special qualifying exam by the Tamil Nadu Public Service commission to all the temporary Junior Assistants, Typists and Steno Typists, who were recruitted through employment exchange since 1986 and subsequently ousted from service and those who are appointed on or before 15.09.1991 and continued in service irrespective of the length of service put in by them. As per the orders of the Government, the Commission issued a notification inviting applications from those who were in temporary employment in Tamil Nadu Ministerial service during the period from 15.11.1990 to 24.09.1984 and from 12.05.1989 to 15.05.1991 to participate in the special qualifying test. It was stated in the said notification that even if a person put in temporary service for a single day, he can also participate in the special qualifying examination. Since the petitioner has temporarily worked from 21.03.1990 to 25.03.1990, he also submitted his application for participating in the examination vide Registration No. 004040 and he was also declared successful. Subsequently, he was appointed as Junior Assistant by proceedings dated 20.10.1997 of the Assistant Commissioner of Commercial taxes, Dharmapuri and posted as Junior Assistant in Commercial Tax Office, Dharmapuri from 22.10.1997. While so, he received a Memorandum dated 13.10.1998 from the second respondent stating that he ought not to have been permitted to write the special qualifying exam as he is ineligible to participate in the said examination since he stayed away from duty on 26.03.1990 while working as Junior Assistant at Dharmapuri Collectorate and therefore, the results of Group IV services stands cancelled. Challenging the same, the petitioner has filed O.A. No. 8642 of 1998. Subsequently, the second respondent passed an order dated 23.10.1998 terminating the service of the petitioner as Junior Assistant with effect from 23.10.1998, which was challenged in O.A. No. 8721 of 1998. On abolition of the Tribunal, the matter stood transferred to this Court and re-numbered as W.P. No. 33821 & 33822 of 2006.

(2.) THE petitioner mainly contended that pursuant to the publication made in the newspaper for participating in the special qualifying examination, he applied with the Public Service Commission. THE examination was a special qualifying examination to accommodate those temporary Junior Assistants, Typists and Steno Typists, who have helped the Government during the strike period and on their successful completion of the examination, they were given the post. THErefore, when once the petitioner was permitted to participate in the examination and he was also appointed as Junior Assistant, after one year, the impugned orders were issued without any notice.

(3.) IN the counter, in Page No.9, it was stated that by letter dated 11.08.1998, the Government clarified that the persons who stayed away from duty and those who have resigned their job are not eligible to participate in the special qualifying examination. It is pertinent to point out that the notification was of the year 1994, the special qualifying examination was conducted in the year 1995, results declared and records of the petitioner were verified in the year 1997 and he was appointed as Junior Assistant on 20.10.1997. But, the Commission appears to have obtained a clarification from the Government only in the year 1998 regarding the eligibility of those persons who have attended the examination and pursuant to such clarification, the impugned orders were passed terminating the petitioner from service. It is not known how the Government can set aside the very selection process conducted in the year 1994 and impose some other conditions, after four years, at the stroke of a pen by means of a subsequent clarification. Even if such clarification is given, principles of natural justice requires that the petitioner, who was in service for more than one year, ought to have been given a notice calling for his explanation as to why his appointment should not be cancelled. Only after issuing such notice, the second respondent ought to have passed the impugned orders. Therefore, the impugned orders passed by the second respondent without notice are per se illegal.