Madras High Court
J.Anburaj vs The Government Of Tamil Nadu on 20 July, 2018
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :20.07.2018 CORAM THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM W.P.No.19884 of 2015 and W.M.P.No.35432 of 2017 and M.P.No.2 of 2015 of 2015 J.Anburaj ..Petitioner vs 1.The Government of Tamil Nadu, rep.by Principal Secretary to Government, School Education Department, Fort St.George, Chennai-600 009. 2.The Director, State Council for Education, Research & Training, College Road, Chennai-600 006. 3.The Member Secretary, Teachers Recruitment Board, College Road, Chennai-600 006. .. Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records of the third respondent in relation to the proceedings issued in O.M.No.2878/A8/2015 dated 20.05.2015 and quash the same and issue a consequential direction to the respondents to select and appoint the petitioner as Senior Lecturer in Zoology in the vacancy meant for the year 2010-2011 in pursuant to the selection done in the year 2011, with monetary and service benefits. For Petitioner : Mr.R.Saseetharan For Respondents :Mr.K.Karthikeyan, Government Advocate O R D E R
The order of rejection, issued by the 3rd respondent in proceedings dated 20.05.2015 is in relation to the claim of the writ petitioner for appointment to the post of Senior Lecturer, is challenged in this writ petition.
2. The learned counsel appearing for the petitioner strenuously contended that the writ petitioner is entitled to be appointed as Senior Lecturer(Zoology) as per the mark list published by the respondent. The writ petitioner passed his Under Graduate Course in B.SC(Zoology) in the year 1994 and completed M.SC (Zoology) in the year 1996 and passed M.Phil thereafter. The petitioner is possessing B.Ed and M.Ed degree also. The petitioner secured 64% of marks in M.Sc (Zoology) and 61% of marks in M.Ed (Zoology). Thus, he is fully qualified and eligible for appointment to the post of Senior Lecturer as per the Rules in force.
3. The grievance of the petitioner is that he participated in the process of selection as per the terms and conditions stipulated and appeared in the written examination and the mark list of the written examination was published by the respondent. Accordingly, the petitioner is ranked in S.No.2 and one N.Sathi was included in S.No.1. N.Sathi secured 96 marks and the writ petitioner secured 93 marks.
4. The learned counsel for the petitioner contended that the 1st respondent N.Sathi was called for Certificate Verification but he had failed to appear before the authority for Certificate Verification and remained absent on 10.04.2015. Thus, the respondent ought to have invited second candidate for Certificate Verification so as to appoint him for the post of Senior Lecturer (Zoology). Contrary to the procedures, the respondents have not at all called the writ petitioner for Certificate Verification till date. Thus, the writ petitioner is constrained to move the present writ petition.
5. The learned counsel appearing for the petitioner is of an opinion that the writ petitioner was not even called for Certificate Verification and contrarily, the request for calling him for Certificate Verification has been rejected through the impugned order in proceedings dated 20.05.2015. The reasons stated in the impugned order is that the selection was conducted in the year in respect of the vacancies arose in the year 2011 and the written examination was conducted in the year 2015 and mark sheet was also issued thereafter. Thus, the Teachers Recruitment Board found that already two years had lapsed and therefore, the said vacancies arose in the year 2011 can be treated as backlog vacancies and the process of selection can be conducted for those vacancies along with fresh vacancies raised in the subsequent period after the decision taken in this regard. The learned counsel cited the judgment of the Division Bench of this Court in the case of R.Amirthaveni & another Vs. The District Employment Exchange Officer and others reported in 2008 [3] L.W. 884, wherein the learned counsel cited paragraphs Nos.17, 18 and 19(ii) of the judgment and the same are extracted hereunder:
17. On the other hand, in the analogous case, in Suo Motu W.P.No.32836 of 2007, it was argued by the learned Senior Counsel appearing for the High Court that the appointment of only one person recommended against one vacancy, will amount to compelling the appointing authority to appoint the person concerned and it will frustrate the selection. The aforesaid G.O.Ms.No.65, dated 30.3.2007 was attacked on the ground of violation of Articles 14 and 16 of the Constitution of India. While the decisions as referred to above were relied upon, attention was also drawn on the decision of the Supreme Court in the case of Arun Kumar Nayak (supra). In the said case, as noticed above, as only one candidate was found to be eligible, the Supreme Court held that there was no element of selection and the process of selection was a mockery.
18. It may be in the aforesaid background that after the hearing of the present cases were concluded, the cases were again brought in the list at the instance of the counsel for the State, who brought on record G.O.Ms.No.18, dated 25.2.2008, issued from Labour and Employment (N.2) Department, published during the pendency of the cases and by the said G.O. dated 25.2.2008, the earlier G.O.Ms.No.65, dated 30.3.2007 issued from Labour and Employment Department and the other instructions on that issue, were superseded. G.O.Ms.No.18, dated 25.2.2008 issued from Labour and Employment (N.2) Department, is extracted hereunder:
"ABSTRACT Employment Exchanges Filling up of Vacancies Fixation of ratio 1:5 for sponsoring candidates from the Employment Exchanges Orders issued.
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Labour and Employment (N2) Department G.O.(Ms).No.18 Dated: 25.2.2008 Read:
1. G.O.Ms.No.201, Labour and Employment Department, dated 28.09.1993.
2. G.O.Ms.No.180, Labour and Employment Department, dated 13.09.1995.
3. G.O.Ms.No.152, Labour and Employment Department, dated 17.11.1998.
4. G.O.(4D).No.1, Labour and Employment Department, dated 13.01.1999.
5. G.O.(4D).No.2, Labour and Employment Department, dated 16.02.1999.
6. G.O.(2D).No.21, Labour and Employment Department, dated 20.09.2001.
7. G.O.(Ms).No.6, Labour and Employment Department, dated 01.02.2002.
8. G.O.Ms.No.65, Labour and Employment Department, dated 30.3.2007.
9. Government Letter No.2167/N2/2007-2, L & E dated 25.04.2007.
10. G.O.Ms.No.86, Labour and Employment Department, dated 12.5.2007.
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Order:
In order to have uniformity in the fixation of ratio for sponsoring the candidates and to ensure expeditious filling up of vacancies, the Government have reviewed the existing Government Orders & guidelines regarding fixation of ratio for sponsoring the candidates from the Employment Exchanges to fill up the vacancies for various categories of posts.
2. In super session of the Government orders & guidelines read above and all other instructions issued on the subject, the Government, after careful consideration issue order as follows:- For filling up of all categories of posts coming under the purview of Government Departments, Local Bodies (Urban and Rural), Cooperative institutions, Public Sector Undertakings, all Government aided Education institutions and Government aided Engineering Colleges and Polytechnics, all other private organizations and institutions etc. Employment Exchanges shall sponsor candidates in the ratio of 1:5.
3. The Special Commissioner and Commissioner of Employment and Training is requested to issue necessary instructions, to display the contents of this order in the Notice Boards of all Employment Exchanges for information of the registrants and the public. (BY ORDER OF THE GOVERNOR) L.K.TRIPATHY CHIEF SECRETARY TO GOVERNMENT"
19(ii) For the Government Departments and others, as referred to therein, the Employment Exchanges are required to sponsor candidates in the ratio of 1:5, i.e. five names of persons against one vacancy."
6. The contention of the learned counsel is that the ratio of 1:1 fixed in the selection was disapproved by the Division Bench and the modified Government order issued by the Government fixing ratio at 1:5 was approved. Thus, in the present writ petition also, the respondents cannot stop the selection in respect of the 1st candidate and therefore, bound to invite the next candidate for Certificate Verification. Inviting 1st candidate alone for Certificate Verification is to be treated as non selection as decided by the Division Bench in the case cited supra.
7. Yet another judgment of the Hon'ble Supreme Court in the case of Ashok Kumar and others Vs. The Chairman, Banking Service Recruitment Board and others reported in AIR 1996 SUPREME COURT 976, has also been referred and it is relevant to extract Paragraph No.5 of the same:
5.Article 14 read with Article 16 [1] of the Constitution enshrine fundamental right to every citizen to claim consideration for appointment to a post under the State.
Therefore, vacant posts arising or expected should be notified inviting applications from all eligible candidates to be considered for their selection in accordance with their merit. The recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16 [1] of the Constitution. The procedure adopted, therefore, in appointing the persons kept in the waiting list by the respective Boards, though the vacancies had arisen subsequently without being notified for recruitment, is unconstitutional. However, since the appointments have already been made and none was impleaded, we are not inclined to interfere with these matters adversely affecting their appointments. However, hereafter the respective Boards should notify the existing and excepted vacancies and the Recruitment Board should get advertisement published and recruitment should strictly be made by the respective Boards in accordance with the procedure to the notified vacancies but not to any vacancies that may arise during the process of selection.
8. The learned counsel made sincere attempts to establish that such a selection made in respect of sending a communication for Certificate Verification to the candidate in S.No.1 alone is in violation of Article 14 & 16 of the Constitution of India. Therefore, the present writ petition also deserves to be considered in the light of the said judgment. Apart from these judgments, the learned counsel referred Rule 22 (d) proviso 2 of the State and Subordinate Rules.
9. The learned Government Advocate appearing for the respondents opposed all the contentions raised by the learned counsel for the petitioner by stating that the writ petitioner is not entitled to claim appointment in view of the fact that he was not even called for Certificate Verification. The authorities competent found that the selection need not be continued and they have not selected and appointed any other candidates, who secured lesser marks than that of the marks secured by the writ petitioner. There was no irregularity or illegality in the process of selection and the authorities found that there was an enormous delay in conducting the selection process. Therefore, they had cancelled the entire selection process and treating the vacancies raised in the year 2011 as backlog vacancies and decided to fill up the vacancies along with the subsequently raised vacancies and hence, there was no irregularity in respect of the decision taken. So also the impugned order, the Certificate Verification was conducted based on the ratio of 1:1 which was prevailing as per the Government Order during the relevant point of time and therefore, the writ petition deserved to be rejected.
10. Considering the arguments advanced by the respective learned counsel for the petitioner and the respondents, the fact remains that the writ petitioner participated in the process of selection for appointment to the post of Senior Lecturer. Admittedly, the writ petitioner had undertaken the process of written examination and secured 93 marks and the name of the writ petitioner is placed in S.No.2 of the mark list. The grievance of the writ petitioner is that he was not invited for Certificate Verification by the respondents. Contrarily, the candidate in S.No.1 alone was called for Certificate Verification who remained absent and therefore, the respondent ought to have invited the writ petitioner for Certificate Verification.
11. The one question that arises for consideration before this Court is whether the petitioner has got any legal right to claim appointment or for a direction to call him for Certificate Verification.
12. As decided by the Constitution Bench and the Apex Court, participation in the process of selection by eligible persons is a fundamental right. However, the appointment can never be claimed as a matter of right. The authorities competent are empowered to cancel the selection at any point of time and reasons cannot be questioned by the candidates who participated in the process of selection. Mere participation in the process of selection will not confer any legal right on the candidates and the same will not form any basis to file a writ petition for the purpose of securing appointment.
13. The candidate who participated in the process of selection can question the selection on certain limited grounds. The process of selection can be questioned only if there is any malpractice, illegality or irregularity or corrupt practices. If such allegations are substantiated or established, then alone the Courts can interfere with the process of selection; otherwise prescribed educational qualification and upper age limit and other conditions are the prerogative of the appointing authorities. However, those conditions prescribed must be in consonance with the constitutional principles and the recruitment rules in force. It is needless to mention that conditions stipulated by the competent authorities must also satisfy the test of reasonableness and must be accord with the recruitment rules in force. In all other circumstances, the candidates who participated in the process of selection has no right to claim appointment on the grounds that they have participated and secured marks in the process of selection. Admittedly, in the instant case, candidates who secured lesser marks than that of the petitioner have not been appointed at all. Contrarily, the respondents have dropped all further selection and closed the process of selection itself. Such being factum of the case, the writ petitioner has not made out any valid ground for the purpose of interference in respect of the decision taken by the competent authority dropping all further proceedings in respect of the selection process.
14. In respect of the judgment cited by the learned counsel for the petitioner that the ratio of 1:1 is irregular and illegal and the ratio of 1:5 is to be adopted and if the ratio of 1:5 is adopted, at least the candidates who secured higher marks up to S.No.5 ought to have been invited for Certificate Verification. This Court is of an opinion that the case decided by the Division Bench cited supra by the learned counsel for the petitioner is in relation to the inviting candidates from the Employment Exchange. While sponsoring the candidates from the Employment Exchanges, the ratio of 1:1 was followed and that was found to be irregular. Accordingly, the Court upheld the modified Government Order fixing 1:5 by the Government to sponsor the candidates. Those facts are relevant in respect of the facts in the present writ petition.
15. In respect of the second judgment, this Court is of an opinion that the Supreme Court has settled the principles in respect of the fundamental rights of candidates for appointment to the public post.. However such a right will not confer any legal right for a candidates to seek appointment by filing the writ petition. Admittedly, the writ petitioner had participated in the process of selection and he had secured 93% of marks and placed in S.No.2. However, the candidate in S.No.1 had failed to appear before the authorities for Certificate Verification. Thus, the writ petitioner cannot claim any right that he must be called for Certificate Verification. However, the entire process of selection had been dropped by the authorities.
16. The third ground raised by the writ petitioner is Rule 22 and as per the proviso to Sub Clause D of Rule 22 which states as follows:
''Provided that if qualified and suitable candidates belonging to any of the scheduled castes and scheduled tribes are not available for selection for appointment by recruitment by transfer or by promotion in the turns allotted to them in the cycle, the turns so allotted to them shall not lapse and the number of candidates to be selected in that recruitment shall be reduced by the number of candidates belonging to Scheduled Castes and Scheduled tribes not available for selection against the turn allotted to them; the unfilled vacancies reserved for the Scheduled Castes and Scheduled Tribes to be filled by recruitment by transfer or by promotion shall be carried over to the four consecutive recruitment years, namely, year of recruitment plus three subsequent recruitment years. The selection for appointment to the vacancies in the next recruitment shall be made first for the carried over turns and then the normal rotation shall be followed. If qualified and suitable candidates belonging to any of the Scheduled Castes and Scheduled Tribes are not available for selection for appointment by recruitment by transfer or by promotion even thereafter, the vacancies reserved for those categories shall first be dereserved by obtaining the orders of the Government before filling them by candidates in the next turns in the order of rotation.''
17. This Court is of an opinion that the rule itself clarifies that the selection is in relation to the appointment or by recruitment or by transfer under the Tamil Nadu State and Subordinate Service Rules. The said rules are not applicable in respect of the candidates, who are participating in the open competitive process. The rules are applicable only in respect of the approved probationers and the persons who already working in Government Departments aspiring for the higher posts. The said rule cannot be considered in respect of the present recruitment, as the writ petitioner is not in Government services nor an approved probationer. Thus, the rule cited by the petitioner cannot be relied upon. At the outset, the writ petitioner has made a sincere attempt to secure appointment through this writ petition on the ground that he was ranked second in the mark list.
18. This Court is of an opinion that mere passing in a written test or the rank will not constitute any legal right for the writ petitioner to claim appointment or to seek direction to invite the writ petitioner for Certificate Verification. Even in case of verification of the certificates, the writ petitioner cannot claim appointment as a matter of right. Every stage of selection process is subject to the approval of the competent authorities and only in certain circumstances, the process of selection can be challenged as stated in the earlier paragraphs.
19. In this view of the matter, the writ petitioner has not made out any acceptable grounds for the purpose of interference as regards the impugned order passed by the respondents.
20. The writ petition stands dismissed. No costs. Consequently connected miscellaneous petition is closed.
20.07.2018 sk Internet:Yes/No Internet:Yes/No To
1.The Principal Secretary to Government, School Education Department, Fort St.George, Chennai-600 009.
2.The Director, State Council for Education, Research & Training, College Road, Chennai-600 006.
3.The Member Secretary, Teachers Recruitment Board, College Road, Chennai-600 006.
S.M.SUBRAMANIAM, J.
sk W.P.No.19884 of 2015 20.07.2018