G. Ramanujam, J.
1. The petitioner herein was selected and appointed temporarily as a copyist in the District Munsif's Court, Tirumangalam, by the respondent as per his proceedings dated 14th November, 1966. He was discharged on 10th May, 196' for want of vacancy. He was again reappointed as a copyist temporarily as per the respondent's proceedings dated 17th June, 1967, from 19th June, 1967. His services from that day onwards has been continuous and the same were regularised by the respondent in his proceedingi dated 27th May 1970 with effect from 19th June, 1967. He had been declared to have satisfactorily completed his probation on 19th June, 1967.
2. However by the proceedings dated 28th November, 1973 the petitioner's services were terminated from 15th December, 1973 on the ground that he has not obtained 40 per cent, of marks in English in the S.S.L.C. Examination and that therefore ha does not have the minimum general educational qualification as required by the rules. The petitioner has challenged the validity of the said order of termination dated 28th November, 1973 in this writ petition.
3. According to the petitioner he is not a temporary Government servant at the time of the termination of service but a regular member of the service. His services have been regularised with effect from 19th June, 1967 and his probation had also been declared to have been satisfactorily completed on and from 19th June, 1967. After having become a full member of the service, his services cannot he terminated for want of requisite educational qualification. The respondent is estopped from contending that the petitioner has not been properly recruited to the service at this distance of time. The impugned order Has also been questioned by the petitioner on the ground that the order terminating his services was passed without giving an opportunity to the petitioner to put forward his case.
4. A perusal of the counter-affidavit in this case indicates that the termination of service of the petitioner from the post of copyist is only for the reason that the post of copyist falls under Clause VI as G.O.Ms. No. 4027 (Home) dated 24tb November, 1962, that therefore all appointments made for such Clause VI posts on or after 24th November, 1962 must be on the basis of the requisite minimum general educational qualification, that a person who does not obtain 40 per cent, of marks in English in the S.S.L.C. examination cannot be said to possess a minimum general educational qualification and that the petitioner not having acquired 40 per cent, of marks in English in the S.S.L.C. examination he cannot be taken to satisfy the educational qualification required for the appointment under Clause VI.
5. It appears that the post of copyist was originally in Clause V and the educational qualification required for that post was a mere pass in the S.S.L.C. examination. Only when the post was brought under Clause VI the requirement of minimum of 40 per cent, marks in English was prescribed as a qualification, under Rule 19(2)(b) of the Tamil Nadu Judicial Ministerial Service Rules. It is not in dispute that the petitioner did not have the requisite 40 per cent, marks in English in his S.S.L.C. examination and he had obtained only 35 per cent. Therefore, it is possible to say that initially the appointment of the petitioner as a copyist by the respondent in the year 1966 cannot be said to be strictly in accordance with the rules. But, it is not disputed that in making temporary appointments the relaxation of the rules relating to educational qualification is possible. But, in this case though the petitioner was originally appointed temporarily as a copyist he has been appointed on a permanent basis and his services have also been regularised from 1966. He has also been declared to have satisfactorily completed his probation on 19th June, 1969 and thus though the petitioner was originally appointed as a temporary copyist his subsequent confirmation in the post of copyist and the regularisation of his services from 1966 has been done in utter ignorance of the Rule 19(2)(4). The question is whether the petitioner's services after he had become a full member of the same could be terminated merely on the basis that he did not get 40 per cent, of marks in English in the S.S.L.C. examination. The petitioner has been a full member of the services for a period of seven years. Nobody can dispute the proposition that no appointment can be made to a service in contravention of the rules prescribed for that service. But, where a person has been appointed originally on a temporary basis but subsequently confirmed on a permanent basis after his services had also been regularised, can his services be terminated on the ground that he does not have the requisite qualification at the time of his original appointment and that his appointment was contrary to the rules? According to the petitioner an appointment contrary to the Rules can be cancelled only when the person is acting on a temporary basis not after when he became a regular member of the services. As already stated the petitioner's services have been regularised from 1967 and he has been a member of the services for seven years when the order of termination came to be passed. It is also, the petitioner's case that the respondent is estopped from questioning the appointment made by him, on the plea that the petitioner did not have the requisite marks in the S.S.L.C. examination.
6. Apart from the fact that the impugned order of termination of services is vitiated foe the reasons that it has been pasted without following the principles of natural justice in that the petitioner, has not been given any show cause notice why his services should not be terminated, before his order of probation was made, the order cannot also be sustained as the respondent is barred by the plea of equitable estoppel in questioning the appointment made by him in going back on his own orders regularising the services of the petitioner from the year 1967 and also declaring completion of his probation in the year 1969.
7. In a similar case, Palaniswamy, J., has observed in V.P. Thirunavukkarasu v. The State of Tamilnadu rep. by District Revenue Officer, Cuddalore W.P.No. 4108 of 1970, that it would be most inequitable and unjust to hold that the petitioner cannot hold the post at this late stage of his life and also to treat him as a candidate appointed under Rule 10(a)(i) without any right to hold the post, if the authorities concerned, whose duty was to check up the qualifications of the persons who apply for an appointment, and if the authorities concerned who had maintained the service register of the petitioner for a long number of years had done their duty properly by checking the qualifications of the petitioner, it would have been possible for them to have discovered that the petitioner did not possess the minimum general educational qualification, though the service register was prepared wrongly as if he was eligible for service commission. If the petitioner had been told at the earliest opportunity about his lack of qualification he could have taken a decision either to continue in service as a temporary candidate without necessary qualifications or to seek employment elsewhere on a permanent footing or to qualify himself by appearing for the necessary examination. Though the authorities concerned cannot be charged with having done anything positively to the detriment of the petitioner, they by reason of their inaction or silence for a long number of years after the petitioner's entry into service have induced the petitioner to believe that he was qualified to continue in service. In these circumstances, this is eminently a fit case for the application of the doctrine of equitable estoppel, and the order of the respondent cannot be sustained.
8. Ismail J., also took a similar view in Kothainayaki v. Director of Secondary Education Madras (1969) 82 L.W. 91 In that case the petitioner was appointed temporarily as a sewing mistress and was considered to possess the minimum general educational qualification though, in fact, she did not possess. She was declared to have satisfactorily completed her probation. But it was discovered that at the time of appointment, she did not possess the requisite qualification and thereupon, an order was passed refixing the salary on the basis of her being an unqualified candidate and cancelling the previous orders sanctioning increments. The petitioner was also asked to be relieved from her duties. The validity of that order was challenged. The learned Judge allowed the petition pointing out that the petitioner did not put forward a claim to a qualification which she did not possess, that the mistake was only on the part of the authority who originally made the appointment and that, in those circumstances the order relieving her from duties was unsustainable.
9. The plea of equitable estoppel has been considered by a Division Bench of this Court in Registrar v. Sundara : (1956)1MLJ25 wherein Rajamannar, G.J., speaking for the Court observed dealing with an order of cancellation of admission of a student on the strength of a wrong endorsement made by the Secondary Education Board, acting presumably on behalf of the University, the petitioner had expended time and money in pursuing a course of study in the college for nearly two years. He should not now he told that there is a mistake and all the two years of study should go waste.... We would prefer to rest our decision on this ground of equitable estoppel rather than on the ground of unreasonable exercise of power by the University, though ultimately the same result follows.... In our opinion, this is an instance of something much more substantial than what Mr. Venkatasubramania Iyer characterised as sentimental estoppel. It is a case of legal or equitable estoppel which satisfies practically all the conditions embodied in Section 115 of the evidence Act.' In W.P. Nos. 3061 and 3487 of 1970, Ramaprasada Rao, J., has also invoked the principle, of equitable estoppel and has set aside an order of termination of services under similar circumstances. That was also a case where a person who had already become a member of the services was deprived of his office on the ground that he did not have minimum general educational qualification on the data of his original appointment.
10. The Andhra Pradesh High Court has also taken a similar view in Jagannathan v. District Collector : AIR1966AP59 . In that case a person was allowed to appear in a competitive examination and he came out successful therein. Thereafter he was appointed on probation as typist and hit name was included in the Hit of approved candidates for appointment selected by the Service Commission After he joined services it was discovered that he was not qualified to sit for the competitive examination and on that ground he was reverted. The validity of the order of reversion was challenged. It was held that the petitioner had become overaged at the time o discharge and that there was no valid justification for depriving him of his service career merely because the authorities happened to be remiss or negligent in, informing themselves correctly at the appropriate time of a matter which related to a period anterior to the petitioner's appointment in Government Service, that therefore they are estopped from reverting the petitioner on the ground that he did not have the requisite qualification at the time of entry in to the services. A Division Bench of the Delhi High Court in Delhi University v. Ashok Kumar : AIR1968Delhi131 considered the question of equtiable estoppel in an eloborote manner if I can say so with respect. In that case a student was admitted to a course in a college in violation or breach of a clause of the University Ordinance relating to admission to the University Course. After the student had undergone the course for two years his original admission to the course was cancelled. Dealing with the validity of such an order the Court held on the facts of that case the principle of equitable estoppel will clearly come into operation.
11. The learned Government Pleader however contends that therecan be no estoppel against a statute, that the statutory rules having prescribed a specific educational qualification for a particular post that cannot be overlooked by the appointing authority, and that the Court cannot compel any authority to sustain an appointment which is admittedly contrary to the rules. The learned Government Pleader cites the decision in Ramanatha v. Stale of Kerala : (1973)IILLJ409SC wherein the Supreme Court has observed that as a general rule the doctrine of estoppel will not be applied against the State in its governmental public or sovereign capacity and submits that therefore the plea of equitable estoppel cannot be used in the circumstances of this case. But, the same decision has also laid down that an exception to that general rule however arises where it is necessary to prevent fraud or manifest injustice. Thus though the normal rule is that the doctrine of estoppel will not be applied against the State in its governmental functions, it can be used in exceptional circumstances where the conduct of the authorities in being remiss or negligent in the application of the rules has caused considerable hardship and injustice to the person who is seriously affected by such negligent conduct. The learned Government Pleader also referred to the decision in State of Punjab v. Jagadeep Singh : (1966)ILLJ749SC wherein it has been pointed out that a wrong confirmation of a person in a post can always be cancelled if it is contrary to the rules. In that case a person's confirmation was cancelled and an order de confirming him was passed on the ground that the confirmation was made on the erroneous assumption that a post was available, while it was in fact not available. I do not see how the principle laid down in that case can be applied to deprive the petitioner herein of the benefit of his confirmation and regularisation of services.
12. Admittedy the petitioner's appointment has been regularised. The petitioner has been confirmed and his services has been regularised in the post of copyist by the respondent from 1967 though without closely following the statutory rules and the petitioner had been made a full member of services for well over a period of seven years His services cannot now be terminated that he did not have the requisite qualification. The rule requiring a particular educational qualification for a post has to be applied at the time when the person enters into service and not at the time when he has been made a permanent member of the services after treating him as duly qualified for the post. It is not in dispute that the rule requiring the minimum of 40 per cent, of marks in English can be relaxed by the Government under, general Rule 48. In such a case, the petitioner's appointment while he does not have that required qualification can only be treated as irregular and not void. The petitioner was not terminated due to want of vacancy but on the ground that at the time of the original appointment he did not have the requisite educational qualification. In this case the petitioner is not to blame for anything tha thad happened. There was no misrepresentation on his part. He merely applied for the post and he was selected and later his services had been regularised and confirmed. The entire mistake appears to be with the respondent in regularising the temporary services of the petitioner and also confirming and making him full member of the services in utter ignorance of service rules. For such a negligent conduct on the part of the respondent the petitioner cannot be penalised. I am therefore of the view that on the facts and circumstances of this case the petitioner is entitled to invoke the plea of equitable estoppel against the respondent and say that after he has become a regular member of the services his services cannot be terminated merely on the ground that he had not Secured 40 per cent, of marks but has acquired only 35 per cent of marks. In this view the impugned order has to be set aside. The writ petition is allowed and the impugned order is set aside. There will be no order as to costs.