Madras High Court
K.G.Muthamil Selvi vs The Principal Secretary on 25 July, 2022
Author: D.Krishnakumar
Bench: D.Krishnakumar
W.P.No.18728 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.07.2022
CORAM
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
W.P.No.18728 of 2022
K.G.Muthamil Selvi ... Petitioner
vs.
1.The Principal Secretary,
Government of Tamil Nadu,
Health and Family Welfare Department,
Fort St.George, Chennai.
2.The Director of Medical and Rural Health Services,
Chennai-600 006. ... Respondents
Prayer.: Writ petition filed under Article 226 of the Constitution of India
praying to issue a writ of Mandamus directing the respondents to consider
and pass orders on the petitioner's application dated 10.04.2022 seeking to
appoint to the post of staff nurse in a Government Medical Institution on the
basis of Certificate Verification proceedings of 2nd respondent dated
18.02.2011 in Ref.No.11190/N1/2/2011.
For Petitioner : Mr.L.Chandrakumar
For Mr.N.Kalainesan
For Respondents : Mr.T.Arun Kumar,
Additional Government Pleader
1/11
https://www.mhc.tn.gov.in/judis
W.P.No.18728 of 2022
ORDER
This writ petition has been filed seeking to issue a Writ of Mandamus directing the respondents to consider the petitioner's application dated 10.04.2022 seeking appointment to the post of Staff Nurse in a Government Medical Institution on the basis of Certificate Verification proceedings of 2nd respondent, dated 18.02.2011 in Ref.No.11190/N1/2/2011.
2. The brief facts of the case:
The petitioner is a Government trained nurse having completed
3 year course in a Government Institution between 2007 – 2010. The policy of the Government of Tamil Nadu was to recruit nursing staff for medical services only from Government trained nurses, who completed the nursing course from Government Schools/Colleges, on the basis of seniority and thereby, the petitioner was selected for appointment as a Staff Nurse in the Government Institution and on 23.02.2011, the 2nd respondent has called the petitioner for certificate verification. It was informed that the candidates, whose certificates were verified were selected and advised to await for posting orders.
2/11 https://www.mhc.tn.gov.in/judis W.P.No.18728 of 2022 2.1. In the meantime, the Government changed its policy and constituted a Medical Services Recruitment Board in the year 2012, which mandated to conduct examination for qualified nurses from both Government and private institutions. The selection was done on the basis of marks secured in the examination. Due to the change of policy by the Government, those who had already been selected as early as in the year 2011 and who had undergone the process of certificate verification, were denied their legitimate rights to be appointed as Staff Nurse in a Government hospitals/institutions. Therefore, the petitioner gave a representation to the respondents to consider her request by appointing her to the post of Staff Nurse in the Government hospitals/institutions. The respondents had received the said representation, but they have not responded. Hence the Writ Petition.
3. Heard the learned counsel appearing for both the parties and I have perused the materials on record.
3/11 https://www.mhc.tn.gov.in/judis W.P.No.18728 of 2022
4. The learned counsel appearing for the petitioner submitted that though the petitioner had appeared for recruitment to the post of Staff Nurse and was selected for appointment as a Staff Nurse and also called for certificate verification on 23.02.2011, at the stage of issuing appointment order, the legitimate right of the petitioner was denied by the respondents by stating that due to change of policy, the petitioner is not entitled to be considered for the selection. He further submitted that the petitioner has made a representation on 10.04.2022, to appoint her to the post of Staff Nurse in the Government Institution, however, it was not considered. Therefore, the respondents may be directed to consider the representation of the petitioner and to appoint the petitioner as Staff Nurse.
5. The learned Additional Government Pleader appearing for the respondents has objected the said contention by stating that the petitioner has no legal right to seek for appointment order, since the Government has changed the policy in the year 2012. Further, the petitioner has approached this Court after a lapse of 11 years, and therefore the writ petition is not maintainable on the ground of delay and laches also. 4/11 https://www.mhc.tn.gov.in/judis W.P.No.18728 of 2022
6. Admittedly, the petitioner was selected for appointment as a Staff Nurse in the Government Institution during the year 2010 and subsequently, no posting orders were issued by the respondents due to the change of policy of the Government. Now, the petitioner seeks appointment to the post of Staff Nurse on the ground that she was selected after certificate verification and was advised to await for posting orders. However, the Government has taken a stand that due to change of policy, it was decided by the Government not to issue posting orders. Further, as stated by the learned Additional Government Pleader appearing for the respondent, the petitioner has approached this Court seeking relief, after a lapse of 11 years.
7. At this juncture, it is relevant to rely on the following decisions of the Hon'ble Supreme Court as well as this Court. In T.S.Anbarasu v. The State of Tamil Nadu represented by its Secretary to Government School reported in (2015) 8 MLJ 385, the Hon'ble Division Bench of this Court has observed as under:
“(xvii) Further, the Hon'ble Supreme Court in K.Jayamohan vs. State of Kerala, reported in (1997) 5 SCC 170, held that it is settled legal position that merely because a candidate is selected and kept in the waiting list, he does not 5/11 https://www.mhc.tn.gov.in/judis W.P.No.18728 of 2022 acquire any absolute right to appointment and it is open to the Government to make the appointment or not. It was further held that even if there is any vacancy, it is not incumbent upon the Government to fill up the same, but the Appointing Authority must give reasonable explanation for non-appointment. Further, the Hon'ble Supreme Court in All India SC& ST Employees' Assn., vs. A.Arthur Jeen, reported in (2001) 6 SCC 380, held that merely because the names of the candidates were included in the panel indicating their provisional selection, they did not acquire any indefeasible right for appointment even against the existing vacancies and the State is under no legal duty to fill up all or any of the vacancies as laid down by the Constitution Bench of the Hon'ble Supreme Court after referring to earlier cases in Shankarsan Dash vs. Union of India, reported in (1991) 3 SCC
47. Thus, the rules of the selection have not been changed in the midst of the selection process nor there is any arbitrariness in denying employment to the petitioners.”
8. In State of Orissa v. Rajkishore Nanda [(2010) 6 SCC 777], the Hon'ble Supreme Court had held as follows: (SCC p.783, paras 14 & 16) :
“14.A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate.
16.A select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required.”
9. Further, in Manoj Manu v. Union of India [(2013) 12 SCC 171] , it was held that merely because the name of a candidate finds place in the select list, it would not give the candidate an indefeasible right to get an 6/11 https://www.mhc.tn.gov.in/judis W.P.No.18728 of 2022 appointment as well. It is always open to the Government not to fill up the vacancies, however such decision should not be arbitrary or unreasonable. Once the decision is found to be based on some valid reason, the Court would not issue any mandamus to the Government to fill up the vacancies. Therefore, the Writ Petition is liable to be dismissed.
10. Apart from that, as already stated, the petitioner has filed the Writ Petition after a delay of 11 years. Therefore, it is useful to rely upon the decision of the Hon'ble Supreme Court of India in Kulwinder Pal Singh and Another v. State of Punjab and Others reported in (2016) 6 SCC 532, the Hon'ble Supreme Court, in paragraph No.10, the Apex Court had observed thus:
“10.It is fairly well settled that merely because the name of a candidate finds place in the select list, it would not give him indefeasible right to get an appointment as well. The name of a candidate may appear in the merit list but he has no indefeasible right to an appointment (vide Food Corporation of India v. Bhanu Lodh, All India SC & ST Employees Assn., v.A.Arthur Jeen and UPSC v.Gaurav Dwivedi.)
11. The Hon'ble Division Bench of this Court, in the case of S.Vaidhyanathan Vs.Government of Tamil Nadu reported in 2018 SCC 7/11 https://www.mhc.tn.gov.in/judis W.P.No.18728 of 2022 Online Madras 11643, in para 14 and 16, has held as under :
“14. There is an inordinate delay and laches on the part of the appellant. What is latches is as follows:
“Laches or reasonable time are not defined under any statute or Rules. “Latches” or “Lashes” is an old french word for slackness or negligence or not doing. In general sense, it means neglect to do what in the law should have been done for an unreasonable or unexplained length of time. What could be the latches in one case might not constitute in another. The latches to non-suit, an aggrieved person from challenging the acquisition proceedings should be inferred from the conduct of the land owner or an interested person and that there should be a passive inaction for a reasonable length of time. What is reasonable time has not been explained in any of the enactment. Reasonable time depends upon the facts and circumstances of each case.” ......
16. Delay defeats discretion and loss of limitation destroys the remedy itself. Delay amounting to laches results in benefit of discretionary power being denied on principles of equity. Loss of limitation resulting into depriving of the remedy, is a principle based on public policy and utility and not equity alone...............”
12. In Karnataka Power Corpn. Ltd. v. K.Thangappan reported in (2006) 4 SCC 322, the Hon'ble Supreme Court, at Paragraph 6 and 16, observed as follows:
“6. Delay or latches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in 8/11 https://www.mhc.tn.gov.in/judis W.P.No.18728 of 2022 conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party'.....
16. There is another aspect of the matter which cannot be lost sight of. The respondents herein filed a writ petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a long time, therefore, the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the court after a long time Delay and laches are relevant factors for exercise of equitable jurisdiction.”
13. In Chennai Metropolitan Water Supply and Sewerage Board v. T.T.Murali Babu reported in (2014) 4 SCC 108, at Paragraph 16, the Hon'ble Supreme Court held as follows:
“16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the Court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a 9/11 https://www.mhc.tn.gov.in/judis W.P.No.18728 of 2022 litigant - a litigant who has forgotten the basic norms, namely, “procrastination is the greatest thief of time” and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.”
14. In the case on hand, the petitioner has not approached the Court within the reasonable time. Keeping in mind the ratio laid down in the above cited decisions, and considering the facts and circumstances of the case, the writ petition is liable to be dismissed on the ground of delay and laches also.
15. Accordingly, the Writ Petition stands dismissed. No costs.
25.07.2022 (1/5) Index : Yes/No Internet : Yes/No ssi To
1.The Principal Secretary, Government of Tamil Nadu, Health and Family Welfare Department, Fort St.George, Chennai.
2.The Director of Medical and Rural Health Services, Chennai-600 006.
D.KRISHNAKUMAR,J.
10/11 https://www.mhc.tn.gov.in/judis W.P.No.18728 of 2022 ssi W.P.No.18728 of 2022 25.07.2022 (1/5) 11/11 https://www.mhc.tn.gov.in/judis