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CASE NO.: Appeal (civil)  341 of 2008

PETITIONER: Commissioner, Municipal Corporation Hyderabad and others

RESPONDENT: P. Mary Manoranjani and another

DATE OF JUDGMENT: 11/01/2008

BENCH: S.B. SINHA & HARJIT SINGH BEDI

JUDGMENT: JUDGMENT

(Arising out of SLP (C) No. 5885 of 2005)

S.B. SINHA, J.

1.      Leave granted.

2.      Respondent No.1 joined the services of Appellant-Corporation  as Balwadi Teacher on an honorarium of Rs.100/- per month.  

3.      The Corporation requested the State of Andhra Pradesh to grant  exemption in regard to requirements of sponsorship of the candidates  by the Employment Exchange for appointment in the regular posts,  pursuant whereto G.O. Ms. No.27 M.A. (Q) dated 16th January, 1991  was issued, stating :-   

\023The Commissioner, Municipal Corporation of  Hyderabad in his letter 2nd read above has stated  that the Municipal Corporation of Hyderabad has  been implementing the Urban Community  Development Programme since 1967 that under  this programme a number of Balwadi and Sewing  Centres were opened in the slum areas for the  benefit of the slum Woman and Children and a  grant of Rs.250/- p.m. was paid by the Municipal  Corporation of Hyderabad to the Balwadi Teachers  and that there is a long standing demand from  these persons for absorption into posts with a  regular scale of pay as most of them are working  as Teachers from 10 to 15 years.  Therefore, the  Commissioner, Municipal Corporation of  Hyderabad has requested the Government to  exempt the voluntary workers from the  Employment Exchange Procedure so that they may  be considered for appointment in the existing and  future vacancies of Municipal Corporation of  Hyderabad as Lower Division Clerks, Lower  Division Typists, Bill Collectors, Record  Assistants or any other posts for which they are  eligible.

2.      The Government having carefully examined  the proposal of the Commissioner, Municipal  Corporation of Hyderabad hereby accord

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exempting 214 voluntary workers listed in the  annexure to this order from Employment Exchange  procedure so that they may be considered for  appointment as LDCs, L.D. Typists, Bill  Collectors, Record Assistants or any other posts  for which they are eligible in the existing and  future vacancies.

3.      The Commissioner, Municipal Corporation  of Hyderabad is requested to take necessary action  accordingly.\024

4.      The said order clearly postulates that what was exempted was  requirement of sponsorship of the candidates by the Employment  Exchange and not the selection process itself.

5.      Appellant is a \021State\022 within the meaning of Article 12 of the  Constitution of India.  It was, therefore, obligated to undertake the  selection process in terms of the constitutional scheme envisaged  under Articles 14 and 16 of the Constitution of India.         6.      Respondent, for the purpose of her selection in a regular post  created by the appellant-Corporation, was thus, required to appear for  a vive voce before a Selection Committee as also a written test.  She  appeared in the interview on 24th December, 1991.  She, however, did  not appear in the written test.  From April, 1989 she absented herself  from her duties. As she had unauthorisedly remained absent  continuously for long time, a letter dated 2nd June, 1992 was received  by the Corporation from Jai Prakash Nagar Welfare Association  requesting the Corporation to terminate her services.         7.      Having come to learn thereabout the respondent made a request  before the appellant on 12th February, 1993 that she be provided with  a job of typist stating:-       \023I am to state here that I passed Higher  Typewriting in English and S.S.C. passed I have  attend the interview on 26.12.91, by (but) could  not attend written test and   Typewriting exam as I am late and there was a  communication gap.

       I request you sir kindly to appoint me a  typist as I am fully qualified to hold the post.  My  colleagues have already been appointed.  If I am  provided with the job, I shall ever remain  grateful.\024

8.      It, therefore, stands admitted that she had not appeared at the  written test as also typewriting examination.  She also having realized  that she had been absenting from her duties continuously, purported to  file some medical certificates for treating her to be on leave from 1st  May, 1989 to 19th February, 1993.   Appellant by its letter dated 10th  March, 1993 asked her to produce copies of the representations made  by her during the period of her absence as also the acknowledgement  receipts thereto to examine her case.  The period of absence having  not satisfactorily been explained by the respondent, her services were  terminated by an order dated 24th July, 1998 stating :-       \02313. The request of Smt. Mary Manoranjani has  been examined with reference to the records  available and it is clearly established that she had

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absented from duty w.e.f. April, 1989 onwards for  reasons best known to her.  There is nothing on  record to show that she has either submitted any  leave application or any medical certificate during  the period of her absence, until she again  submitted application on 20.02.1993 requesting for  permission to join today.  The Balwadi/Sewing  teachers have been appointed by the respective  welfare associations located in slums and they  were not appointed by MCH.  Smt. Mary  Manoranjani has already been communicated that  her request for rejoining into duty is rejected vide  this office letter 7th cited.  Smt. Mary Manoranjani  has not put forth any new grounds to reconsider  her case.\024

9.      Aggrieved thereby she filed a writ petition before the High  Court of Judicature at Andhra Pradesh in August, 1998.  By a  judgment and order dated 9th March, 2004 a learned Single Judge of  the High Court, without entering into the merit of the matter, allowed  the said petition stating :-

\023Admittedly, the Government has issued G.O.Ms.  No.27 on 16.1.1991 and as per the contents of the  said G.O. voluntarily workers working in the  Municipal Corporation of Hyderabad should be  absorbed in regular vacancies by relaxing the rules  relating to employment exchange etc., and from  the papers produced by the learned counsel for the  petitioner, it is clear that a list of casual workers  was prepared and the petitioner is placed at serial  No.100.  When once the petitioner is in the list of  candidates and the purpose of G.O.Ms. No.27 is to  give relaxation of the existing rules and for  absorption of those who are working as casual  workers as on the date of the G.O., it cannot be  said that the petitioner\022s case cannot be considered  simply on the ground that as on the date of  interview she was not in actual service.  Hence, I  deem fit to direct the respondents to consider the  case of the petitioner for appointment as Lower  Division Typist or in any other equivalent post in  terms of G.O.Ms. No.27 dated 16.1.1991.\024

        10.     An intra court appeal preferred by the appellant thereagainst has  been dismissed by a Division Bench of the said High Court by reason  of the impugned judgment.    

11.     Mr. L.N. Rao, learned senior counsel appearing on behalf of the  appellants, submitted that the impugned orders of the High Court are  ex facie illegal as in a case of this nature the aforesaid G.O.Ms. cannot  be said to have any application whatsoever.         12.     Mr. Anil Kumar Tandale, learned counsel appearing on behalf  of the respondent, on the other hand, submitted that keeping in view  the tenor of the order passed by the learned Single Judge which has  been affirmed by the Division Bench, as a mere direction for  consideration of the case of the respondent in terms of the said  G.O.M. has been made, no interference therewith by this Court is  warranted.         13.     Constitutional scheme in regard to public employment as  enumerated in Articles 14 and 16 of the Constitution of India is

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explicit.  Any appointment made by a \021State\022 within the meaning of  Article 12 of the Constitution of India must be subject to the  constitutional scheme.  In making appointments the State is obligated  to comply with the same as also statutory requirements, if any.     Neither the appellant nor the State could grant any exemption in  regard to compliance of the statutory requirements.   

14.     The G.O.M. granted only exemption from sponsorship of the  names by the Employment Exchange.  Appellant did not and in fact  could not ask for grant of any exemption from its obligation to comply  with the requirements of Articles 14 and 16 of the Constitution of  India or other Statutory Rules operating in the field in this behalf.  It is  now a well settled principle of law that any appointment made in  violation of the statute or the constitutional provision would be illegal.   (See \026 Secretary State of Karnataka and others vs. Uma Devi (3) and  others :(2006) 4 SCC 1.         15.     G.O. Ms. No. 27 M.A. (Q) dated 16th January, 1991, therefore,  is not at all applicable in a case of this nature, where a candidate not  only did not appear at the written test for the purpose of recruitment to  the regular post but also failed to attend to her duties for a number of  years.  Respondent was engaged for a particular purpose, namely \026 to  impart education to the poor children.  She failed to carry out her  contractual obligations.         16.     Only when she came to learn of the fact that a complaint had  been made against her, she requested either for her recruitment as a  typist or grant her leave on medical ground, which ex-facie appears to  be mala fide.         17.     We, therefore, are of the opinion that she did not have any legal  right to continue in the said post.  The direction of the High Court to  consider her case in the light of G.O.Ms. No. 27 M.A. (Q) dated 16th  Januay, 1991 is eminently unsustainable as the said government order  would have no application to the facts and circumstances of the case.       18.     For the reasons abovementioned the impugned judgment cannot  be sustained and is set aside accordingly.  The appeal is allowed.   However, there shall be no order as to costs.