Madras High Court
M. Selvakumar vs State Of Tamil Nadu on 11 April, 2005
W.P.No.523 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 25.09.2019
Pronounced on: 9.01.2020
CORAM
THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD
Writ Petition No.523 of 2010
M. Selvakumar ... Petitioner
Vs
1. State of Tamil Nadu
rep. by Chief Secretary
Fort St. George
Chennai 600 009.
2. The Secretary to Government
Government of Tamil Nadu
Personnel & Administrative Reforms Department
Fort St. George
Chennai 600 009.
3. The Secretary to Government
Government of Tamil Nadu
Social Welfare and Nutritious Meal
Programme Department
Secretariat
Chennai 600 009.
4. The Secretary
Tamil Nadu Public Service Commission
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W.P.No.523 of 2010
Omandurar Government Estate
Chennai 600 002. ... Respondents
Prayer: Petition filed under Article 226 of the Constitution of India
praying for the issuance of a writ of certiorarified mandamus to call for
the concerned records from the third and fourth respondents and to
quash G.O.Ms.No.53 Social Welfare and Nutritious Meal Programme (SW-
4) Department, dated 11/4/2005 issued by the third respondent, in so far
as not including the post of Deputy Collector, Deputy Registrar of Co-
operative Societies, Assistant Director of Rural Development Department
in the Annexure to the G.O., in the list of post identified under Group A
and B categories coming under the purview of the Tamil Nadu Public
Service Commission for the persons with disabilities and the
Notification/Advertisement No.179 issued by the fourth respondent in so
far as Clause 4 (d) and not extending the reservation for disabled in
respect of the posts of Deputy Collector, Deputy Registrar of Co-
operative Societies and Assistant Director of the Rural Development
Department and consequently, direct the respondents to fill up the
vacancies in the post of Deputy Collector, Deputy Registrar of Co-
operative Societies, Assistant Director of Rural Development Department
and District Employment Officer by extending the benefit of 3%
reservation to the persons with disability as provided under Section 33 of
the Persons with the Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995.
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W.P.No.523 of 2010
For petitioner ... Mr.Balan Haridas
For respondents ... Mr.A.Zakir Hussain
Government Advocate
for R.R.1 to 3.
M/s.CNZG.Niraimathi
Standing Counsel
for TNPSC/R.4
ORDER
Instant writ petition has been filed to quash G.O.Ms.No.53, Social Welfare and Nutritious Meal Programme (SW-4) Department, dated 11/4/2005, issued by the third respondent, in so far as it does not include the post of Deputy Collector, Deputy Registrar of Co-operative Societies and Assistant Director of Rural Development Department in the Annexure to the G.O., the list of posts identified under Group A and B categories which can be reserved for the persons with disabilities and Notification/Advertisement No.179 issued by the fourth respondent in so far as Clause 4 (d) does not even extend reservation for disabled in even for the post of District Employment Officer on the ground that the turn 3/28 http://www.judis.nic.in W.P.No.523 of 2010 for handicapped person has not arisen and consequently, direct the respondents to fill up the vacancies in the post of Deputy Collector, Deputy Registrar of Co-operative Societies, Assistant Director of Rural Development Department and District Employment Officer by extending the benefit of 3% reservation to the persons with disability as provided under Section 33 of the Persons with the Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
2. Petitioner is an Orthopaedically challenged person. His disability was assessed at 50%. State of Tamil Nadu was providing reservation to all posts for physically handicapped persons, where rule of reservation was applicable to SC/ST, Backward Class and other Communities from 1991. The reservation was only in respect of posts in Class 'C' and Class 'D' categories. Persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, (herein after referred to in short as the "Disabilities Act"), was enacted on 1/1/1996. Under Section 33 of the Disabilities Act, every Government has to reserve in every establishment such percentage of vacancies not 4/28 http://www.judis.nic.in W.P.No.523 of 2010 less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from -
(i). blindness or low vision; (ii). hearing impairment; and (iii).
locomotor disability or cerebral palsy in the posts identified for each disability.
3. In pursuance to the Disabilities Act, instructions were given by the Government of India to extend reservation for posts in Class 'A' and 'B' also. Section 32 of the Disabilities Act provides that appropriate Government shall - (a) identify posts, in the establishments, which can be reserved for the persons with disability; (b) at periodical intervals not exceeding three years, review the list of posts identified and update the list taking into consideration the developments in technology.
4. Government of Tamil Nadu appointed an Expert Committee for identifying the posts to which the benefit of reservation can be extended to persons with disabilities. In G.O.Ms.No.46, Social Welfare and Nutritious Meal Programme Department, dated 11/5/2000, Government 5/28 http://www.judis.nic.in W.P.No.523 of 2010 constituted an Expert Committee, on 8/2/2005, under the Chairmanship of Additional Secretary, Ministry of Social Justice and Empowerment. The said Committee identified 117 posts which were found to be suitable for extending the benefit of reservation of differently abled persons. In view of the Expert Committee report, G.O.Ms.No.53, Social Welfare and Nutritious Meal Programme (SW.4) Department, dated 11/4/2005 was brought out by the State and posts were earmarked in which seats were reserved for persons with disability.
5. On 15/12/2008, a Notification was issued by the Tamil Nadu Public Service Commission for recruitment to the posts of Deputy Collector, Deputy Registrar of Co-operative Societies, Assistant Director of Rural Development Department and District Employment Officer. Clause 4 (d) of the Notification states that out of 4 posts, three categories of physically handicapped persons are eligible for 3% reservation of vacancies intended for Physically Handicapped persons for the post of District Employment Officer. Petitioner participated in the examination and was not successful. After the results were declared, 6/28 http://www.judis.nic.in W.P.No.523 of 2010 the petitioner has challenged G.O.Ms.No.53, Social Welfare and Nutritious Meal Programme (SW4) Department, dated 11/4/2005, by which 117 posts have been identified under Groups A and B categories for reservation of vacancies applicable to persons with disabilities. In so far as it excludes three posts, Deputy Collector, Deputy Registrar of Co- operative Societies, Assistant Director of Rural Development Department and District Employment Officer to which reservation under the Disabilities Act is applicable, petitioner has also challenged Clause 4 (d) of the Notification/Advertisement, dated 15/12/2008 of the Tamil Nadu Public Service Commission.
6. It is the contention of the petitioner that had the three said posts been also included in the 117 posts ear marked for reservation for physically handicapped, the petitioner would have been a beneficiary and would have got one of the post. Petitioner also challenges Clause 4
(d) of the Notification which stipulated that no posts have been reserved for persons with disability even for the post of District Employment Officer.
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7. Respondents have filed a counter. Respondents in the counter has described as to how the posts were identified by the Expert Committee constituted, under G.O.Ms.No.46, Social Welfare and Nutritious Meal Programme Department, dated 11/5/2000. The recommendations given by the Committee has been incorporated in G.O.Ms.No.53, Social Welfare and Nutritious Meal Programme (S.W.4) Department, dated 11/4/2005, which is impugned herein. It is therefore, contended by the respondents that since the experts have looked into the subject and have identified 117 posts, writ Courts exercising jurisdiction under Article 226 of the Constitution of India must be slow in interfering with the report submitted by the Expert Committee. It is also stated that after taking part in the examination and after failing in his attempt, petitioner cannot be permitted to turn around and challenge the same.
8. Heard Mr.Balan Haridas, learned counsel for the petitioner, Mr.A.Zakir Hussain, learned Government Advocate for the respondents 1 8/28 http://www.judis.nic.in W.P.No.523 of 2010 to 3 and Ms.CNG.Niraimathi, learned Standing Counsel for the Tamil Nadu Public Service Commission, fourth respondent.
9. A perusal of narration of facts referred to above would show that after the introduction of Disabilities Act, the Central Government has issued instructions to the State Government, to extend the benefit of reservation, as provided under Section 33 of the Disabilities Act to the persons suffering from blindness of low vision, hearing impairment and locomotor disability or cerebral palsy. Government also issued instructions that a Committee must be constituted for identifying the posts in which reservations for the physically handicapped persons can be made in compliance with the directions of the Central Government. Accordingly, Committee was constituted in G.O.Ms.No.46, Social Welfare and Nutritious Meal Programme Department, dated 11/5/2000, where the Committee has identified 117 posts. The petitioner has not brought out anything to show that report of the Committee is fallacious or it is perverse. Expert Committee which was formed to identify the posts to be reserved for persons with disabilities in its Ministries/Departments 9/28 http://www.judis.nic.in W.P.No.523 of 2010 and the Public Sector Undertaking consists of following Members namely:-
II Representatives, not below the rank of
Joint Secretary from the following
Ministries/Departments of Govt. of
India:-
(i) Department of Personnel & Training,
North Block, New Delhi - Member
(ii) M/o Health & Family Welfare,
Nirman Bhawan, New Delhi Member
(iii) Department of Public Enterprises Member
(iv) M/o Social Justice & Empowerment, Member Disability Division III Representative not below the rank of Joint Secretary of the Ministry/Department concerned in respect of which identification of jobs and related matters are to be reviewed Member IV Director General of Employment & Member Training, M/o. Labour V Head of the Department, PMR, Member Safdarjung Hospital VI Representatives of NIs on each disability:-
(i). Director, National Institute for the Member Visually Handicapped, Dehradun 10/28 http://www.judis.nic.in W.P.No.523 of 2010
(ii). Director, Ali Yavar Jung National Institute for the Hearing Member VII Representatives of Non-Governmental Organizations:-
(i). Ms.Shivani Gupta Member
(ii). Shri.S.K.Rungta Member
(iii). Shri. Alok Kejriwal Member
10. A perusal of the above would show that the Committee consisted of persons experienced in the field of administration. These persons have identified the posts depending upon the nature of work. It is now well settled that when a High Level Committee gave an opinion that writ Courts must be slow to interfere with the conclusion of the Committee unless it is shown that findings of the Committee completely perverse and without any basis
11. The Hon'ble Supreme Court in Mahinder Kumar Vs. High Court of Madhya Pradesh & Others {(2013) 11 SCC - 87}, wherein at paragraph 63, observed as under:-11/28
http://www.judis.nic.in W.P.No.523 of 2010 "63.With that, when we come to the last of the questions, namely, whether the ultimate selection of the third respondent alone leaving out the rest of the 14 candidates as not suitable, can be held to be justified. In this context, we will have to make a reference to a fair statement made by Mr Marlapalle, learned Senior Counsel who appeared on behalf of the petitioners that he is not for a moment raising any doubt or question the marks allotted by the interviewing committee members to the various candidates based on the appraisal of the candidates in the interview. In fact a perusal of the marks awarded by each of the seven members of the Interview Committee discloses their identity of mind while awarding marks in the interview to each of the candidates interviewed by them. The Interview Committee's exercise, while interviewing the 15 candidates on 6-
4-2007 and 7-4-2007 can thus be held to be above board. In the same breath, it will have to held that the Selection Committee's ultimate decision in their resolution dated 18-4-2007, in holding that in their fair assessment, the third respondent alone, who secured 55.46% marks in the aggregate, as the only suitable candidate for holding the post of entry level District Judge, cannot be assailed. It is by now well settled that no Court, including this Court can venture to go behind the said assessment made by an expert committee consisting of high- level members of the judiciary of the State and state that the said decision should be varied by holding that the other candidates whose performance was also apprised by the said expert committee should be held to be suitable on a par with the selected candidate and that they should also be selected and appointed. This Court should never make even an attempt to go behind the ultimate decision of the Selection Committee in order to set at naught the final decision arrived at by it, which was approved by the Full Court or vary its decision by adding some more candidates in the list by laying down a different 12/28 http://www.judis.nic.in W.P.No.523 of 2010 criterion by altering or by fixing any benchmark for being appointed to the higher judiciary of the State. In the light of our above conclusion, we do not find any scope to grant any relief to the petitioners in the writ petitions or in the civil appeals."
12. Similarly, in Victoria Memorial Hall Vs. Howrah Ganatantrik Nagrik Samity {(2010) 3 SCC - 732}, at paragraph 37, the Hon'ble Supreme Court has observed as under:-
"37.The Constitution Bench of this Court inUniversity of Mysorev.C.D. Govinda Rao[AIR 1965 SC 491] held that (AIR p. 496, para 13) “normally the courts should be slow to interfere with the opinions expressed by the experts”. It would normally be wise and safe for the courts to leave the decision to experts who are more familiar with the problems they face than the courts generally can be. This view has consistently been reiterated by this Court as is evident from the judgments inState of Biharv.Dr. Asis Kumar Mukherjee[(1975) 3 SCC 602 :
1975 SCC (L&S) 51 : AIR 1975 SC 192] ,Dalpat Abasaheb Solunkev.Dr. B.S. Mahajan[(1990) 1 SCC 305 : 1990 SCC (L&S) 80 : (1991) 16 ATC 528 : AIR 1990 SC 434] ,Central Areca Nut & Cocoa Mktg. & Processing Coop. Ltd.v.State of Karnataka[(1997) 8 SCC 31] andDental Council of Indiav.Subharti K.K.B. Charitable Trust[(2001) 5 SCC 486] .13/28
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13. Similarly, in Basavaiah (Dr.) Vs. Dr.H.L.Ramesh {(2010) 8 SCC - 372, at para 21, the Hon'ble Supreme Court has observed thus:-
"21.It is the settled legal position that the courts have to show deference and consideration to the recommendation of an Expert Committee consisting of distinguished experts in the field. In the instant case, the experts had evaluated the qualification, experience and published work of the appellants and thereafter recommendations for their appointments were made. The Division Bench of the High Court ought not to have sat as an appellate court on the recommendations made by the country's leading experts in the field of Sericulture."
14. In view of the above, this Court is not able to accept the argument of the petitioner stating that when benefits have been given to various posts in I.As, I.Ps, I.Fs, I.Rs, etc., in Central Government, there is no necessity to exclude the posts of Deputy Collector, Deputy Registrar of Co-operative Societies, Assistant Director of Rural Development Department, in which reservation has not been given to the persons with disabilities. In this view of the matter, challenge to G.O.Ms.No.53 Social Welfare and Nutritious Meal Programme (S.W.4) Department, dated 14/28 http://www.judis.nic.in W.P.No.523 of 2010 11/4/2005 and the consequent Notification, dated 15/12/2008 of the Tamil Nadu Public Service Commission, fails.
15. Mr.Balan Haridass, learned counsel for the petitioner places reliance on {(2010) 7 SCC - 626 {Government of India, rep through its Secretary and Another Vs. Ravi Prakash Gupta and another}, wherein at paragraph 29, the Hon'ble Supreme Court, observed as under:-
"While it cannot be denied that unless posts are identified for the purposes ofSection 33of the aforesaid Act, no appointments from the reserved categories contained therein can be made, and thatto such extent the provisions ofSection 33are dependent onSection 32of the Act, as submitted by the learned ASG, but the extent of such dependence would be for the purpose of making appointments and not for the purpose of making reservation. In other words, reservation underSection 33of the Act is not dependent on identification, as urged on behalf of the Union of India, though a duty has been cast upon the appropriate Government to make appointments in the number of posts reserved for the three categories mentioned inSection 33of the Act in respect of persons suffering from the disabilities spelt out therein. In fact, a situation has also been noticed where on account of non-availability of candidates some of the reserved posts could remain vacant in a given year. For meeting such eventualities, provision was made to carry forward such vacancies for two years after which they would lapse.15/28
http://www.judis.nic.in W.P.No.523 of 2010 Since in the instant case such a situation did not arise and posts were notreserved under Section 33 of the Disabilities Act, 1995, the question of carrying forward of vacancies or lapse thereof, does not arise."
(emphasis supplied)
16. Learned counsel for the petitioner would contend that reservation under Section 33 of the Disabilities Act is not dependent on identification of post. Reliance on that one sentence in the judgment cannot be accepted. Judgment read as a whole would show that it is for the Government to identify the posts and the reservations can be extended to such of those which are identified under Section 32 of the Disabilities Act. In fact, the opening sentence of paragraph 29 states that "while it cannot be denied unless posts are identified for the purposes of Section 33 of the aforesaid said Act, no appointments from the reserved categories contained therein can be made, and thatto such extent the provisions of Section 33 are dependent on Section 32of the Act, as submitted by the learned ASG". It is therefore, clear that a perusal of the scheme of the Act makes it clear that unless the posts are identified under Section 33, reservation cannot be extended under Section 33 of the Disabilities Act.
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17. A Hon'ble Division Bench of Allahabad High Court in Ram Sevak Tripathi Vs. U.P.Public Service Commission {2002 (3) AWC - 2238}, while examining the reservation of posts for the purpose of granting reservation under the Disabilities Act, has observed as under:-
"It is settled law that if law provides that a thing is to be done in a certain manner, it has to be done in that manner or not at all. The benefit conferred in the 1995 Act could not be given to the persons under the 1996 Act, as they have to be identified according to that Act. It is for the Government to notify the vacancies and send requisition for any post which has been identified for selection on the said post, though the examination is conducted by the U.P Public Service Commission. No direction can be given for appointment of any individuals on any post which has neither been identified or requisitioned by the State Government for the said posts. However, persons must have equal opportunity for employment, which follows that the petitioner cannot be discriminated with other persons of his category in examination, which may be held by the U.P.Public Service Commission for the posts which have been identified.
18. This Court is in full agreement with the decision rendered by the Allahabad High Court.
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19. It is contended by the learned counsel for Tamil Nadu Public Service Commission that if the petitioner had any grievance with the Government Order or with the Notification, dated 15/12/2008 of the Tamil Nadu Public Service Commission, the petitioner ought to have challenged the same immediately when the Notification came out. Having failed to do so, the present writ petition cannot be entertained. For this purpose, the learned counsel appearing for Tamil Nadu Public Service Commission, placed reliance on {2009 (2) MLJ - 263} (V.Prabakaran Vs. Selection Committee, rep. by its Chairman, Tamil Nadu Electricity Board, Chennai and Others), wherein a learned Single Judge has observed as under:-
"12. Infact to effectuate the provisions of Disabilities Act, Government of Tamil Nadu have identified 117 posts which are the most suitable posts for the disabled in the A and B groups of post. Referring to G.O.Ms.No.2093, Director of Rehabilitation of the Disabled requested the Government to issue notification by ordering the reservation of A and B posts for the benefit of disabled persons. The Director recommended for the constitution of expert committee to identify the post which are suitable for disabled persons under A and B groups. The Government have identified 117 types of posts for the disabled 18/28 http://www.judis.nic.in W.P.No.523 of 2010 in the A and B groups of the posts G.O.Ms.No.53 dated 11/4/2005, Social Welfare and Nutritious Meal Programme (S.W.4) Department passed approving the list of 117 posts identified under A and B categories for reservation of 3% vacancies to be disabled persons in direct recruitment. The relevant clauses of the said G.O reads as under:-
"...
6. Based on the announcement made by the Hon'ble Chief Minister the Government approve the list of 117 posts identified under Group A and B categories under the purview of Teachers Recruitment Board and the TNPSC for the persons with disabilities. The Government also direct that 3% of the vacancies in direct recruitment for the identified posts of A and B groups, where the rule of reservation is applicable for the SCs/STs, B.Cs and other Communities, shall be reserved for the disabled persons. If only one post is available for recruitment in these categories, the usual procedure for recruitment will be followed. In so far as Executive posts are concerned the individual shall produce a certificate of physical fitness from the Medical Board to the effect that their handicap will not affect the performance of the job to which he/she has been selected before appointment.
7. The list of the 117 categories of posts identified as most suitable for the different 19/28 http://www.judis.nic.in W.P.No.523 of 2010 categories of the disabled persons in A and B groups in Direct Recruitment is given in the Annexure to this order."
13. It is relevant to note though various categories of A and B groups are identified. Assistant Engineers/Electrical of TNEB have not been identified and approved to provide reservation on 3% of vacancies. As per Permanent B.P.(Ch.) No.6 reservation of vacancies provided for physically handicapped persons need not be made in respect of recruitment of post in Class I and II services. In G.O.Ms.No.53 whereby the Government have identified 227 posts under A and B groups, TNEB has not been included. While so, it cannot be contended that the selection process is vitiated due to violation of provisions of Disabilities Act or the Government orders.
14. It is pertinent to note that the petitioner has not challenged the selection process even before its commencement on the ground that no reservation was made for the persons with disability. Having been unsuccessful in the selection process, it is not open to the petitioner to challenge the selection. It is not as if, TNEB has not selected the physically handicapped candidates. In para 17 of the counter it is averred in the selection of the posts of Assistant Engineers, 14 physically handicapped candidates were selected on merits (OC-1; BC - 7; MBC/DC-3; SC/ST-3) and they have been referred to Director of Medical and Rural Health Services for constitution of Medical Board to assess their suitability or otherwise to the post of 20/28 http://www.judis.nic.in W.P.No.523 of 2010 Assistant Engineer. Though not stated in explicit terms in the selection list, there had been fair justice to the disabled persons by appointing as many as 14 candidates."
20. The petitioner is a fence sitter. He has chosen not to challenge the G.O nor the Notification issued at the first instance. He challenged only after he faied in his attempt to get through the examination. Such a practice is also been frowned upon by Courts. The Hon'ble Supreme Court in Union of India Vs. S.Vinodh Kumar (2007) 8 SCC - 100, has observed as under:-
"18.It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. (SeeMunindra Kumarv.Rajiv Govil[(1991) 3 SCC 368 : 1991 SCC (L&S) 1052 : (1991) 16 ATC 928 : AIR 1991 SC 1607] .) (See alsoRashmi Mishrav.M.P. Public Service Commission[(2006) 12 SCC 724 : (2007) 2 SCC (L&S) 345 : (2006) 11 Scale 5] .)"
21. In G.Sarana (Dr.) Vs. University of Lucknow {(1976) 3 SCC - 585}, at paragraph 15, the Hon'ble Supreme Court has observed as under:-
21/28
http://www.judis.nic.in W.P.No.523 of 2010 "15.We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the committee. This view gains strength from a decision of this Court inManak Lal's casewhere in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting:
“It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point.”
22. In K.H.Siraj Vs. High Court of Kerala {(2006) 6 SCC - 395, at paragraph Nos.72 to 74, the Hon'ble Supreme Court, observed as under:-
"72.The appellant-petitioners, in any event, are not entitled to any relief under Article 226 of the Constitution of India for more 22/28 http://www.judis.nic.in W.P.No.523 of 2010 reasons than one. They had participated in the written test and in the oral test without raising any objection. They knew well from the High Court's notification that minimum marks had to be secured both in the written test and in the oral test. They were also aware of the High Court decision on the judicial side in Remanyv.High Court of Kerala[(1996) 2 KLT 439] . This case deals with prescription of minimum qualifying marks of 30% for viva voce test. C.S. Rajan, J., in the above judgment, observed as under: (KLT pp. 441-42, para 5) “On the basis of the aggregate marks in both the tests, the selection has to be made. InI.C.A.R. case[(1984) 2 SCC 141 : 1984 SCC (L&S) 214 : AIR 1984 SC 541] also the relevant rules did not enable the Selection Board to prescribe minimum qualifying marks to be obtained by the candidate at the viva voce test. InDelhi Judicial Service case[(1985) 3 SCC 721 : 1985 SCC (L&S) 919 : AIR 1985 SC 1351] as alsoUmesh Chandra[(1985) 3 SCC 721 : 1985 SCC (L&S) 919 : AIR 1985 SC 1351] the rules did not empower the committee to exclude candidates securing less than 600 marks in the aggregate. Therefore, in all these cases, the Supreme Court came to the conclusion that prescription of separate minimum marks for viva voce test is bad in law because under the rules, no minimum qualifying marks were prescribed.” The High Court also relied onP.K. Ramachandra Iyer case[(1984) 2 SCC 141 : 1984 SCC (L&S) 214 : AIR 1984 SC 541] andUmesh Chandra case[(1985) 3 SCC 721 : 1985 SCC (L&S) 919 : AIR 1985 SC 1351] .23/28
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73.The appellant-petitioners having participated in the interview in this background, it is not open to the appellant-petitioners to turn round thereafter when they failed at the interview and contend that the provision of a minimum mark for the interview was not proper. It was so held by this Court in para 9 ofMadan Lalv.State of J&K[(1995) 3 SCC 486 : 1995 SCC (L&S) 712 : (1995) 29 ATC 603] as under: (SCC p. 493) “9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. InOm Prakash Shuklav.Akhilesh Kumar Shukla[1986 Supp SCC 285 : 1986 SCC (L&S) 644] it has been clearly laid down by a Bench of three 24/28 http://www.judis.nic.in W.P.No.523 of 2010 learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.”
74.Therefore, the writ petition filed by the appellant- petitioners should be dismissed on the ground of estoppel is correct in view of the above ruling of this Court. The decision of the High Court holding to the contrary is per incuriam without reference to the aforesaid decisions."
23. The said principle would apply squarely to the facts of this case. The contention of the learned counsel for the petitioner that since the Notification is violative of Article 14 of the Constitution of India, it could be challenged at any point of time is not acceptable. No doubt, Article 14 of the Constitution of India can never be waived but yet at the same time, a person cannot abuse the process of law. Petitioner should have challenged the G.O.Ms.No.52, which excludes the applicability of reservation of disabled to the posts of Deputy Collector, Deputy Registrar of Co-operative Societies and Assistant Director of the Rural Development Department, immediately when the Notification of the Tamil Nadu Public Service Commission, impugned herein was issued after 25/28 http://www.judis.nic.in W.P.No.523 of 2010 having taken part in the examination, in view of the judgments extracted herein above. It is now open to the petitioner to challenge the selection process and it is a clear abuse of process of law which disentitles the petitioner to invoke an extraordinary equity remedy under Articles 226 of the Constitution of India. The fact that one post has been reserved for the petitioner by this Court in the interim order dated 28/4/2010, is of no avail to the petitioner even if there are vacant posts. This Court is not entering into the debate as to all the posts are filled up or not. This Court is not inclined to interfere with the findings of the Expert Committee.
24. In view of the above, writ petition is dismissed. No costs.
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Index: yes/No Internet: Yes/No speaking/non-speaking order 26/28 http://www.judis.nic.in W.P.No.523 of 2010 To
1. Chief Secretary, State of Tamil Nadu Fort St. George Chennai 600 009.
2. The Secretary to Government Government of Tamil Nadu Personnel & Administrative Reforms Department Fort St. George Chennai 600 009.
3. The Secretary to Government Government of Tamil Nadu Social Welfare and Nutritious Meal Programme Department Secretariat Chennai 600 009.
4. The Secretary Tamil Nadu Public Service Commission Omandurar Government Estate Chennai 600 002.
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