Madras High Court
V. Arumugaperumal vs The Chairman on 22 August, 2012
Author: Vinod K. Sharma
Bench: Vinod K. Sharma
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 22/08/2012
Coram
THE HONOURABLE MR. JUSTICE VINOD K. SHARMA
W.P.(MD) No.11357 of 2012
and
M.P.(MD)Nos.2 and 3 of 2012
1. V. Arumugaperumal,
S/o. Vetrivel,
66, 9th South Street,
Thiyagaraja Nagar,
Maharaja Nagar Post,
Tirunelveli District.
2. R. Pradeep,
S/o. Late M. Ramasamy,
No.6 B, Seetha Nagar,
Shivaji Nagar West,
Thanjavur District.
3. S. Soundararajan,
S/o. M. Sannasi,
Senior Research Fellow,
Department of Economics,
Agriculture and Research Institute,
Y. Othakadai, Madurai.
4. S. Murugesan,
S/o. R. Seerangan,
Territory Business Manager,
J.S.Lakshmi Traders,
No.9, Mathan Kovil Street,
Kovilpatti.
5. K. Sekar,
S/o. D. Kannuchamy,
No.F.9, Ananth Avenue,
Melur Road,
Srirengam, Trichy. ...... Petitioners
Vs
1. The Chairman,
Tamil Nadu Public Service Commission,
No.1, Greams Road, Chennai - 6.
2. The Secretary,
Tamil Nadu Public Service Commission,
No.1, Greams Road, Chennai - 18.
3. The Commissioner of Agriculture,
Directorate of Agriculture,
Ezhilagam, Chennai - 2. ....... Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Certiorarified Mandamus to call for the
records of the second respondent in his impugned Notification No.28/2012 dated
13.08.2012 and quash the same and consequently direct the respondents 1 and 2
herein to appoint the petitioners as Agriculture Officer (Extension) based on
their Reserve List Seniority within a stipulated period as fixed by this Hon'ble
Court.
!For Petitioners... Mr. M. Thirunavukkarasu
^For Respondents... Mr. S. P. Maharajan
- - - - - - - -
:ORDER
The petitioners approached this Court, for issuance of a Writ, in the nature of Certiorari, to quash the Notification No.28 of 2012 dated 13.08.2012, issued by the Tamil Nadu Public Service Commission, inviting applications for appointment, to the post of Agricultural Officer (Extension), numbering 454 + 6 C/F.
2. The petitioners possessed the qualification of B.Sc., (Agriculture), and are registered with respective employment exchanges. An advertisement was issued by the Secretary, Tamil Nadu Public Service Commission, for filling up 520 posts of Agricultural Officer (Extension), by direct recruitment, based on the written test. The written examination was held on 03.08.2008, in which the petitioners had participated. The results were published on 12.03.2009.
3. The respondents had decided to fill up only 499 posts. The petitioners did not fall in merit, but were shown in reserved list. The first petitioner was shown 14th place in S.C. reserve list; the second petitioner was shown 7th place in S.C. reserve list; the third petitioner was shown 10th place in S.C. reserve list; the fourth petitioner was shown 13th place in M.B.C. reserve list and the fifth petitioner was shown 16th place in M.B.C. reserve list. Out of 520 posts, results were published for 499 posts and 15 posts were reserved for B.Sc., (Horticulture), those who filed writ petitions in this High Court, whereas 6 posts were reserved for physically challenged persons. There was no person in the physically challenged category eligible for appointment.
4. The writ petition filed by the candidates holding B.Sc., (Horticulture) was dismissed by this Court. It is submitted that 22 selected candidates, who joined their duty were subsequently left the jobs. The said posts are also to be filled up from the Reserved List.
5. The petitioners filed W.P.No.7600 of 2010, seeking a writ, in the nature of Mandamus, for appointment of Agriculture Officer (Extension). It is also submitted, that this Court had given liberty, to the respondents, to fill up 15 posts, which were initially reserved for B.Sc., (Horticulture), in view of the dismissal of the writ petition.
6. It is also the case of the petitioners, that the second respondent has also issued appointment orders to 37 persons from reserved list. As per the reserved list seniority and communal reservation, the first petitioner is at Sl.No.9 in S.C. General; the second petitioner is at Sl.No.2 in S.C. General; the third petitioner is at Sl.No.5 in S.C.General; the fourth petitioner is at Sl.No.1 in M.B.C. General and fifth petitioner is at Sl.No.4 in M.B.C. General. The petitioners have filed W.P.(MD)No.3317 of 2012, which is pending disposal of this Court.
7. The W.P.No.16131 of 2011 filed in the Principal Bench of High Court was disposed of, with a direction to the second respondent, to pass appropriate orders, by taking into consideration the fact, that the petitioners were in the zone of consideration. Till date, no order has been passed.
8. It is also submitted, that two of the selected candidates in the S.C. reserve list have sent letters to the first and second respondents, that they are not interested in the job as they have joined alternative jobs.
9. It is also the case of the petitioners, that as per the provisional selection order, it was stated, that reserved list candidates will be considered for allotment from the respective categories against the vacancies to be caused by (1) non-joining of duty of selected candidates and (2) leaving of posts by the selected candidates, after joining duty or cancellation of provisional selection of the selected candidate for any other reason.
10. Though the Notification was issued by the Tamil Nadu Public Service Commission, the petitioners have chosen not to implead the Tamil Nadu Public Service Commission, as a party to the writ petition, and instead impleaded its Chairman and Secretary.
11. The impugned Notification is challenged by the petitioner, on the ground, that as per the Statutory Proviso to Rule 10(a)(i) of The Tamil Nadu State and Subordinate Service Rules, the persons in the reserved list have got right to be appointed, if the selected candidates failed to join duty for one reason or other. The petitioners have right of appointment on the failure of the selected candidates to report for duty on the last date fixed for joining. That the petitioners have sent a telegram to first and second respondents, with a request to issue appointment letters to the petitioners, and because of the issuance of the impugned Notification, their rights are affected.
12. In support of his contention, the learned counsel for the petitioner placed reliance on the decision of the Hon'ble Division Bench of this Court in THE SECRETARY, TAMIL NADU PUBLIC SERVICE COMMISSION ..VS.. R. NAGARAJAN (2008 (3) L.W. 222) wherein the Hon'ble Division Bench was pleased to lay down as under:-
11. Three selected candidates - E. Bakthavatchalam [General Turn (General)]; G.M. Vasanthi [General turn (General)] joined the post, left the services and joined as Civil Judges. One K. Sathasivam (MBC/DC)[W] had resigned from service. The main point raised is, in the resultant vacancies arising out of three candidates joined and subsequently left/resigned, whether the Writ Petitioners are to be appointed. Contention of TNPSC is that Rule 10(a)(i) cannot be operated in cases of candidates who joined and subsequently left/ resigned. What is urged is strict interpretation of proviso to rule 10(a)(i);
Rule 10(a)(i) which reads as under:
"Provided further that the reserve list of successful candidates shall be in force until the regular list of successful candidates is drawn up subsequently; and that candidates shall be allotted from such reserve list for the vacancies in the place of those who have not joined duty."
12. Though 10(a)(i) provides for allotment from reserve list for the vacancy in the place of those who have not Joined duty, it cannot be strictly interpreted so as to exclude resultant vacancies caused due to candidates joined and subsequently left/resigned. The very purpose of Subordinate Service Rules is to sub-serve the interest of the public and the process of selection. No doubt a candidate has indefeasible right to be appointed for the post, but when the Writ Petitioners have been placed in the reserve list, it is a fallacy to argue that they cannot be appointed in the resultant vacancies. We are of the view that if such interpretation is to be adopted, the expression "such reserve list will be in force...until the drawal of next selected list by the commission", would defeat the intention of the Legislature. We are of the view that a meaningful interpretation of rule 10(a)(i) would sub-serve the interest of the public. In fact, having noticed the anomaly, the Government has issued amendment to Rule 2 of Part I and Rules 10(a)(i)(i) and 22(d) under Part II of the General Rules for the Tamil Nadu State and Subordinate Services to the effect that "the reserve list shall be operated even against the vacancies caused due to the fact that the candidates have joined duty but left thereafter while the reserve list is in force". The learned Counsel for the Commission has submitted that the above amendment has only prospective effect and it cannot be applicable to the Writ Petitioners.
13. Three candidates have joined and left only to join as Civil Judges [Junior Division]. The other candidate Sathasivam has resigned from service. Having regard to the facts and circumstances of the case, the learned Judges allowed the Writ Petitions, directing appointment of Writ Petitioners when there was resultant vacancies.
14. It is to be noted that Appointing Authority viz., Government has not preferred any appeal. As held in A.I.R. 1987 S.C. 169 (MISS NEELIMA SHANGLA ..VS.. STATE OF HARYANA AND OTHERS), duty of Public Service Commission is only to make available to the Government a complete list of qualified candidates arranged in order of merit. It is the Government who strictly appoints in the order in which they have been placed by the Commission as a result of the examination. When there are resultant vacancies, TNPSC cannot contend that the selected list prepared in 2002 got expired. In fact, while issuing notification inviting applications for 44 vacancies of Additional Public Prosecutor Grade II, it was notified that "the recruitment of the posts is subject to the result of various cases filed in the High Court Madras, which are still pending". Having said so, the appellant is not justified in contending that at present there is no vacancy. This is all the more so, when the Government and TNPSC had taken time in the contempt proceedings for implementing the order."
13. The Judgment, on which reliance placed has been passed relying on the decision of the Hon'ble Supreme Court in MISS NEELIMA SHANGLA ..VS.. STATE OF HARYANA (A.I.R. 1987 S.C. 169). However, subsequently, the said judgment was considered by the Constitutional Bench of the Hon'ble Supreme Court in SHANKARSAN DASH ..VS.. UNION OF INDIA (A.I.R. 1991 S.C. 1612), wherein the Hon'ble Supreme Court has been pleased to lay down as under:-
"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in STATE OF HARYANA ..VS.. SUBHASH CHANDER MARWAHA (1974 (1) S.C.R. 165 = A.I.R. 1973 S.C. 2216), MISS NEELIMA SHANGLA ..VS.. STATE OF HARYANA (1986 (4) S.C.C. 268 = A.I.R. 1987 S.C. 169) or JITENDRA KUMAR ..VS.. STATE OF PUNJAB (1985 (1) S.C.R. 899 = A.I.R. 1984 S.C. 1850).
8. In STATE OF HARYANA ..VS.. SUBHASH CHANDER MARWAHA (A.I.R 1973 S.C. 2216) 15 vacancies of Subordinate Judges were advertised, and out of the selection list only 7, who had secured more than 55 per cent marks, were appointed, although under the relevant rules the eligibility condition required only 45 per cent marks. Since the High Court had recommended earlier, to the Punjab Government that only the candidates securing 55 per cent marks or more should be appointed as Subordinate Judges, the other candidates included in the select list were not appointed. They filed a writ petition before the High Court claiming a right of being appointed on the ground that vacancies existed and they were qualified and were found suitable. The writ application was allowed. While reversing the decision of the High Court, it was observed by this Court that it was open to the government to decide how many appointments should be made and although the High Court had appreciated the position correctly, it had "somehow persuaded itself to spell out a right in the candidates because in fact there were 15 vacancies". It was expressly ruled that the existence of vacancies does not give a legal right to a selected candidate. Similarly, the claim of some of the candidates selected for appointment, who were petitioners in JITENDRA KUMAR ..VS.. STATE OF PUNJAB (A.I.R. 1984 S.C. 1850), was turned down holding that it was open to the government to decide how many appointments would be made. The plea of arbitrariness was rejected in view of the facts of the case and it was held that the candidates did not acquire any right merely by applying for selection or even after selection. It is true that the claim of the petitioner in the case of MISS NEELIMA SHANGLA ..VS.. STATE OF HARYANA (A.I.R. 1987 S.C. 169), was allowed by this Court but, not on the ground that she had acquired any right by her selection and existence of vacancies. The fact was that the matter had been referred to the Public Service Commission which sent to the government only the names of 17 candidates belonging to the general category on the assumption that only 17 posts were to be filled up. The government accordingly made only 17 appointments and stated before the court that they were unable to select and appoint more candidates as the Commission had not recommended any other candidate. In this background it was observed that it is, of course, open to the government not to fill up all the vacancies for a valid reason, but the selection cannot be arbitrarily restricted to a few candidates notwithstanding the number of vacancies and the availability of qualified candidates; and, there must be a conscious application of mind by the government and the High Court before the number of persons selected for appointment is restricted. The fact that it was not for the Public Service Commission to take a decision in this regard was emphasised in this judgment. None of these decisions, therefore, supports the appellant.
14. Therefore, it is not correct to say that the Hon'ble Supreme Court in the case of MISS NEELIMA SHANGLA ..VS.. STATE OF HARYANA (A.I.R. 1987 S.C. 169) has deviated from the settled law that a person in the select list has indefeasible right to appointment. In view of the Judgment of the Constitutional Bench reproduced above, the law is settled that selectees cannot claim the appointment as a matter of right. The mere inclusion of candidates name in the list does not confer any right to be selected, even some of the vacancies remain unfilled and the concerned candidates cannot claim that they have been given hostile discrimination. Reference can be made to SMT. ASHA KAUL AND ANOTHER ..VS.. STATE OF JAMMU & KASHMIR (1993(2) SCT 744 = (1993(2) SCC
573)), UNION OF INDIA ..VS.. S.S.UPPAL (1998(1) SCT 384 = (AIR 1996 SC 2340)), HANMAN PRASAD ..VS.. UNION OF INDIA (1996(4) SCT 608 = (1996(10) SCC 742)), BIHAR PUBLIC SERVICE COMMISSION AND OTHERS ..VS.. STATE OF BIHAR AND OTHERS (1997(1) SCT 501 = (AIR 1997 SC 2280)), SYNDICATE BANK AND OTHERS ..VS.. SHANKAR PAUL AND OTHERS (1997(3) SCT 791 = (AIR 1997 SC 3091)), VICE CHANCELLOR, UNIVERSITY OF ALLAHABAD ..VS.. DR. ANAND PRAKASH MISHRA AND OTHERS (1997(3) SCT 588 = (1997(10) SCC 264)), PUNJAB STATE ELECTRICITY BOARD ..VS.. SEEMA (1999 SCC (L&S) 629); ALL INDIA SC & ST EMPLOYEES ASSOCIATION ..VS.. A.ARTHUR JEEN (2001(2) SCT 737 = AIR 2001 SC 1851), VINODAN .T. ..VS.. UNIVERSITY OF CALICUT (2002(2) SCT 1046 = (2002(4) SCC 726)), S. RENUKA ..VS.. STATE OF ANDHRA PRADESH AND OTHERS (2002(2) SCT 568 = (AIR 2002 SC 1523)) and BAITARIANI GRAMIYA BANK ..VS.. PALLAB KUMAR AND OTHERS (2003(4) SCT 321 = (AIR 2000 SC 4248)).
15. Rule 10(a)(i)(1) of the Tamil Nadu State and Subordinate Service Rules reads as under:-
"10. Temporary appointments :- a(i) (1) Where it is necessary in the public interest owning to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and there would be undue delay in making such appointment in accordance with these rules and the Special Rules, the appointing authority may temporarily appoint a person, who possesses the qualification prescribed for the post otherwise than in accordance with the said rules.
# (Added Vide G.O.Ms.No.21 P & AR (S) Dept. 23.01.1996 w.e.f. 23.01.1996) Provided that no appointment @ by direct recruitment under this clause shall be made of any person other than the one sponsored by the Tamil Nadu Public Service Commission from its regular or reserve list of successful candidates to any of the posts with in the purview of the Tamil Nadu Public Service Commission.
@(Added vide G.O.Ms.No.21 P&AR (S) Dept. 23.01.1996 w.e.f. 23.01.1996) Second Proviso omitted vide G.O.Ms.No.146 P&AR(S) Dept. dated 13.09.2006 w.e.f. 16.08.1982.
Provided ** further that appointment by direct recruitment under this clause (1) in respect of posts within the purview of Tamil Nadu Public Service Commission shall be made, only where new posts with new qualifications are created temporarily and where the Tamil Nadu Public Service Commission does not have a regular or reserve list of successful candidates for sponsoring. **Substituted vide G.O.Ms.No.146 P&AR(S) Dept. dated 13.09.2006 w.e.f.
16.8.82 Provided also that notwithstanding anything contained in the first proviso, the appointing authority shall make temporary appointment by direct recruitment through the Employment Exchange, for the posts of Typist and Steno- Typist (Grade III) in the Tamil Nadu Ministerial Service and for the post of Typist in Tamil Nadu Secretariat Service, as a one time measure to overcome the difficulty in filling up the vacancies for the above posts due to the ban on direct recruitment that existed between the 29th November 2001 and the 7th February 2006".
16. This Rule does not deal with the appointment of the person in the select list. Further more, the decision of the Hon'ble Division Bench of this Court in THE SECRETARY, TAMIL NADU PUBLIC SERVICE COMMISSION ..VS.. R. NAGARAJAN (2008 (3) L.W. 222) (supra) as also the decision of the learned Single Judge in DR. D. KARAL AND OTHERS ..VS.. STATE OF TAMIL NADU, REP. BY ITS SECRETARY (2009 (1) M.L.J. 1259) are merely per incuriam and not laying down the correct law in view of the fact that these Judgments are based on Proviso to Rule 10(a)(i) of the Tamil Nadu State and Subordinate Service Rules, which in fact, is not in the Statute Book and was deleted vide G.O.Ms.No.146 Personnel and Administrative Reforms (A) Department dated 13.09.2006.
17. In view of the deletion of the second proviso, the petitioners cannot claim any right nor can place reliance on the Judgment of this Court to challenge the Notification.
18. The point in this writ petition is not as to whether the petitioners have the right of consideration or appointment against the post being in the reserved list, but the question is whether the petitioners have any locus standi to question the right of the Government to invite fresh application for filling up the posts and the right of the Public Service Commission to issue advertisement to invite applications.
19. It is prerogative of the State Government to take steps to fill up the posts, the right of the selected candidate to be considered is till the new list. Therefore, it is open to the Government to prepare the select list to fill up the available vacancies. The candidates in the select list cannot challenge the Notification merely for the reason that the selected candidates are available for appointment. As the right of the select list candidates for appointment comes to an end, as the life after select list under the Rules is only till the next selection is held.
20. The reliance placed by the learned counsel for the petitioner on the decision of this Court in W.P.(MD)Nos.1041 of 2009 etc., Batch decided on 06.09.2010 also does not advance the case of the petitioner as in the said case, in view of the vacation of the Interim Order, reserving certain posts, liberty was granted to the State Government to fill up the posts.
21. In any case, the right of the petitioners to claim appointment, being in the select list is subject matter of earlier writ petition whereas the question in the present writ petition is only as to whether the State Government can send the requisition to the Tamil Nadu Public Service Commission to issue advertisement for filling up the posts Agricultural Officer (Extension). The answer is "Yes", as neither a candidate nor the persons in the select list of the earlier selection has any legal, constitutional or statutory right to challenge the Notification, inviting the applications.
22. This writ petition, being devoid of merits, is ordered to be dismissed.
No costs.
Consequently, the connected M.P.(MD)Nos.2 and 3 of 2012 are closed.
Dpn/-
To:
1. The Chairman, Tamil Nadu Public Service Commission, No.1, Greams Road, Chennai - 6.
2. The Secretary, Tamil Nadu Public Service Commission, No.1, Greams Road, Chennai - 18.
3. The Commissioner of Agriculture, Directorate of Agriculture, Ezhilagam, Chennai - 2.