Madras High Court
J.M.Jacqueline Maley vs Union Of India Rep. By on 4 August, 2009
Author: T.S.Sivagnanam
Bench: Elipe Dharma Rao, T.S.Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 4.8.2009
CORAM
THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO
and
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
W.P.Nos.28572 of 2004, 14203,
9097, 9098 of 2007
W.P.No.28572 of 2004
1.J.M.Jacqueline Maley
2.K.Thenmozhi
3.V.Beena
4.A.Lachoumy
5.C.Mainatchy
6.S.Meera
7.B.Sathiya
8.Dhanalakshmi
9.P.Hema .. Petitioners
Vs.
1.Union of India rep. By
Government of Pondicherry through
the Secretary to Government for
Health & Family Welfare Services
Pondicherry.
2.The Director of Health & Family
Welfare Services
Pondicherry
3.V.Narveena
4. Central Administrative Tribunal,
Madras Bench,
Rep. by the Registrar,
High Court, Madras-104. .... Respondents
Writ petition is filed under Article 226 of the Constitution of India for issuance of Writ of Certiorari to call for the records of the 4th respondent in O.A.No.731/2004 dated 14.9.2004 and to quash the same.
For Petitioners : Mr.T.Murugesan, Sr.Counsel
in W.P.14203, Govt.Pleader (Pondicherry)
9097 & 9098/07
For Petitioners : Mr.V.Ajayakumar
in W.P.28527/04
For Respondents : Mr.N.G.R.Prasad
in W.P.14203, for M/s Row and Reddy
9097 & 9098/07
For Respondents : Mr.P.V.S.Giridhar
in W.P.14203,
9097 & 9098/07
***********
COMMON ORDER
T.S.SIVAGNANAM J.
The above Writ Petitions are taken up for disposal together as there arises a common question, pertaining to the validity of selection for the post of Pharmacist (Allopathy) and Auxiliary Maternity Assistant / Maternity Assistant (hereinafter referred as ANM) in the Health Department of the Union Territory of Pondicherry pursuant to a common notification dated 27.05.2004.
2. W.P.No.14203 of 2007, 9097 of 2007 and 9098 of 2007 have been filed by the Government of Pondicherry challenging the common order of the Central Administrative Tribunal (Tribunal for short) in O.A.No.99, 476 and 306 of 2005 dated 8.3.2006 respectively. The prayer in the said original applications are to set aside the order passed by the Director of Health and Family Welfare Services, Pondicherry dated 22.11.2004 appointing the private respondents as Pharmacist (Allopathy), without conducting any test or interview and without any information to the applicants, as being illegal.
3. W.P.No.28572 of 2004 has been filed by one Mrs.J.M.Jacqueline Maley and 8 others, the applicants in O.A.No.731 of 2004, which was filed to quash the order passed by the Director of Health and Family Welfare Services, Pondicherry dated 12.08.2004 and consequently to direct the Official Respondent to make selection on the basis of Written Test and Interview and appoint the applicants to the post of ANM with all consequential benefits.
4. For appreciating the controversy involved, the factual panorama will have to be understood.
5. The Government of Pondicherry by notification dated 27.05.2004 invited applications from the natives of the Union Territory of Pondicherry for filling up of different group C and D posts in the Health Department, Pondicherry. In the present Writ Petitions, we are concerned with two group C posts namely Pharmacist (Allopathy) (Serial No.11 of Notification) and ANM (Serial No.2 of Notification). The Notification stipulated the eligibility criteria, the nature of application to be submitted, the certified copies of the enclosures which are to be annexed and the method of selection etc. Clause No.3 of the Notification states that the applications, which are not in complete shape will be rejected and further correspondence will not be entertained. Clause No.5 enumerates the list of certified copies of the certificates which have to be submitted along with the applications. Clause No.10 states that the date, time and venue of test / interview will be intimated to the candidate later. Clause No.11 states that the decision of the Government as to be eligibility or otherwise of candidates for admission to the examination shall be final.
6. The recruitment rules, as notified by G.O.Ms.No.8 / 70 II and F & P, dated 12.3.1970, for recruitment to various posts state that the post of Pharmacist (Allopathy), is a selection post and method of recruitment is by direct recruitment. The educational and other qualifications required for direct recruitment are (i) SSLC or its equivalent, (ii) Registration in Pharmacy register (iii) Diploma in Pharmacy or certificate obtained after having undergone Compounders Training in a recognized Institute. The post of ANM is also a selection post and the method of recruitment is by direct recruitment, the qualification being III Form or its equivalent, Diploma in Auxillery Nurse Midwife or Certificate obtained after training in Midwifery for 18 months in a Recognized Training Institute. It is relevant to note at this juncture that the recruitment rules for the posts do not contemplate the method of selection process.
7. The Applicants applied for the said posts and according to them, they have enclosed the required attested copies of the certificates and were eagerly waiting to be called to attend the test for selection to the said posts in terms of the notification dated 27.05.2004. Their grievances is that, without conducting any test / interview, the Department by notification dated 22.11.2004 published the list of candidates who have been selected for the posts of pharmacists, and by notification dated 12.8.2004 published the list of candidates selected for the post of ANM. These select lists were impugned before the Tribunal, contending that the select lists are illegal, arbitrary, unconstitutional and contrary to the principles of natural justice; that the Department should have conducted written test and interview for all candidates who have applied for the posts and selection based on aggregate marks obtained is illegal and contrary to the notification issued; that the Department having notified that the selection would be based on test/ interview, ought to have conducted the same and the same cannot be waived and relaxed as it would lead to nepotism and the selection is contrary to Articles 14 and 21 of the Constitution of India. It has been further contended that the Department is not entitled to change the procedure of selection after the selection process has started; that the applicants have been waiting for employment from 1996 97 and some of the selected candidates have registered their names in the employment exchange only in the year 2003. It is further contended that the scheme of awarding marks for the Diploma Courses vary from Institution to Institution and more so when candidates, who have applied, have secured Diploma Qualification from Tamilnadu and it is highly unscientific to select the candidates purely based on the marks obtained.
8. The Pondicherry Administration resisted the contentions raised by the Applicants by stating that as per the recruitment rules, the posts have to be filled up for direct recruitment and the rules clearly state the qualification required for the posts; that the employment exchange was addressed to sponsor candidates and the Department of Sainik Welfare was also addressed for sponsoring ex-servicemen for the posts; that the employment exchange sponsored 319 candidates for the posts of Pharmacist and 149 candidates for the posts of ANM; that the Department of Sainik Welfare did not sponsor any ex-serviceman within the due date i.e. by 14.06.2004, however two candidates for the posts of Pharmacist were sponsored by them on 21.09.2004 and in respect of the post of ANM, no ex-servicemen list was received.
9. The Department further contended that 316 filled up applications were received for the post of Pharmacist and 161 applications for ANM within the due date in response to the paper advertisement and intimation was given to all candidates as per the list sponsored by the employment exchange. The applications were verified by the Doctors Committee Constituted for the said purpose. The applications, which were received, have been placed before the recruitment committee constituted for each post and the recruitment committee for Pharmacist found 211 applications were in complete shape and eligible for consideration and the remaining 105 were rejected on various grounds. The recruitment committee for ANM found 118 applications in complete shape and eligible for consideration and remaining 43 were rejected on various grounds.
10. It is further submitted that clause 3 of the notification clearly states that the applications, which are not in complete shape will be rejected and the applicants did not produce the relevant documents and therefore they came to be rejected. The recruitment committee had selected 25 candidates to the post of Pharmacist and published the select list on 22.11.2004, based on 50% of marks secured in SSLC or equivalent and 50% of the marks secured in Diploma / Degree in Pharmacy. The deduction of 5% of the marks has been made for every additional attempt. The recruitment committee for the posts of ANM selected 34 candidates based on the above stated norms and select list was published on 12.08.2004.
11. The Department further contended that in respect of such categories of posts such as ECG Technician, Radiologist and Shoemaker, where the technical proficiency of the candidate is required to be tested, tests were conducted. As it is a case of direct recruitment, the method and process of recruitment has to be left to the administration in accordance with the recruitment rules. The applicants in O.A.No. 99 of 2005 and O.A.No.731 of 2004 filed the rejoinder to the reply statement filed by the Department rebutting the allegations made therein.
12. The Tribunal, by a common order dated 8.3.2006, allowed O.A.Nos.99, 476 and 306 of 2005 and held that the selection to the post of Pharmacist is contrary to the procedure laid down in the notification and quashed the select list. However, the Tribunal by the order dated 14.09.2004 dismissed O.A.No.731 of 2004 holding that the selection to the post of ANM has been done in a transparent manner and the candidates have been selected based on their merit in the examination and there is no indication that there was any bias or malafide in the whole selection process. The above Writ Petitions have been filed challenging the orders passed by the Tribunal.
13. Heard Mr.T.Murugesan, Senior Advocate, Government Pleader, Puducherry, Mr.N.G.R.Prasad, Learned Counsel for the Applicants in O.A.No.99, 476 and 306 of 2005, Mr.P.V.S.Giridhar, Learned Counsel for the selected candidates and Mr.V.Ajayakumar, Learned Counsel for applicant in O.A.No.731 of 2004 and Petitioner in W.P.No.28572 of 2004.
14. The Learned Government Pleader (Puducherry) while assailing the correctness of the order passed by the Tribunal dated 8.3.2006 in O.A.Nos.99, 476 and 306 of 2005 and supporting the order passed by the Tribunal in O.A.No.731 of 2004 dated 14.09.2004 would contend as follows:
i) The notification dated 27.5.2004 is in respect of 16 category of posts.
ii) As per condition No.3 of the notification incomplete applications will be summarily rejected.
iii) Incomplete applications need not be returned and there is no duty cast upon the Doctors committee or the recruitment committee to return incomplete applications.
iv) The qualification prescribed for the post is S.S.L.C. and S.S.L.C. certificate has to be enclosed. Enclosing of plus two certificate is not in due compliance of the notification.
v) Notification also stipulates production of the necessary certificates relevant to the technical qualification prescribed for the post. Therefore, it is necessary that the registration of pharmacy council should be valid.
vi) Clause 10 of the notification reads test / interview. Therefore, the option is left to the recruitment agency to adopt a fair and reasonable procedure.
vii) In respect of three technical post in the same notification dated 27.05.2004 namely ECG Technician, Radiologist and shoemaker, where technical qualification had to be evaluated, the Government has conducted test and in all other cases, the selection has been done based on the marks secured by the candidates in the qualifying examination.
viii) The revised procedure was adopted by the Government after taking into consideration the relevant factors.
ix) The recruitment rules do not prescribe the method of selection and the present method of allotting 50% of marks of the educational qualification and 50% of marks of the degree and diploma in the technical qualification is a fair and reasonable method and no malafides could be attributed to the authorities.
x) The minutes of the recruitment committee held on 22.11.2004, have been placed before the Court which establishes that this selection process is fair and in accordance with law.
xi) The selected candidates have joined during the first week of December 2004 (9.12.2004) and are continuing in their posts.
xii) Though 18 posts were advertised, 25 persons were selected taking into consideration the vacancies which arose thereafter and one post has been kept vacant in compliance of the interim order granted by the Central Administrative Tribunal.
xiii) The certificates of the selected candidates have been verified by the selection committee.
15. The Learned Government Pleader would further contend that the entire recruitment process was clearly explained in the reply statement and the Tribunal had rightly dismissed O.A.No.731 of 2004 but erroneously allowed the other original applications filed by the applicants. If the selection made on 9.12.2004 is to be interfered at this stage, the selected candidates, who have been working since then, would be affected. Further, the applications submitted by the applicants were rejected as they were not in complete shape and they have no locus standi to question the select list. On such arguments, the learned Senior Counsel prayed for allowing W.P.No.14203 of 2007, 9097 and 9098 of 2007 and dismissing W.P.No.28572 of 2004.
16. Per contra, Mr.N.G.R.Prasad, the Learned Counsel appearing for the Applicants / Respondents would contend that a. The applicants had enclosed the plus 2 certificate which is the higher qualification than that of SSLC and therefore, their applications cannot be rejected.
b. In the application form, a check list has been provided for the list of enclosures and other details and the applicants have signed the check list which reveals that all the relevant certificates were enclosed.
c. If the application was incomplete, nothing prevented the Department from returning the application for furnishing necessary details.
d. From page 85 and 86 of the typed set of papers, it is seen that the Doctors committee verified the applications and then it was placed before the recruitment committee. Therefore, nothing prevented the committee from returning the application to the petitioner for proper presentation.
e. The application ought not to have been rejected, the same should have been returned.
f. As per the notification as per clause Nos.10 and 11, it is necessary for the department to conduct a test / interview and the selection shall be based only on the marks secured in the test / interview. However no test / interview was conducted.
g. As per the recruitment rules, the post is a selection post and the candidates who have not been selected have not undergone any selection process, therefore the selection is illegal and liable to be set aside.
h. In the application form, the applicant is required to fill up the admission card affixing his photograph with attestation and in the said admission card in the Official Use column, the name of the examination centre and date of examination have to be filled. Such an examination was never conducted.
i. The order of the Tribunal is proper since the selection has been set aside for not following the procedure contemplated in the notification.
j. The advertisement for recruitment notification issued during 2002 contains the same condition namely condition No.13 regarding the date, time and venue of written test.
k. The memorandum dated 25.2.2002 clearly indicates that a competitive examination should be conducted for the selection of pharmacists.
l. The notification for recruitment during 2004 also contained identical condition as that of the earlier notification. Therefore, the Department is bound to conduct test for selection.
m. Method of selection shall be only by way of a written examination. n. he selected candidates have not filed appeal and it is only the Government of Pondicherry which has filed the appeal. o. All the selected candidates are from Pondicherry and the valuation of the papers in the Institutions at Pondicherry are lenient when compared to the Institutions in Tamilinadu. p. There is only one Institute offering such course and therefore it has become necessary for the other candidates to come out of Pondicherry for acquiring qualification in Diploma in Pharmacy. q. he respondents are bound to comply with all the details given in the advertisement at page No.2 and all the conditions in the advertisement apply to all the posts which have been advertised. r. If the procedure for selection is not stipulated in the rules, then the process for selection as mentioned in the advertisement should be strictly followed. s. The notification produced, amending the process of selection after the selection process has began, is illegal. t. In page No.9 ground (i.), it has been specifically stated that all the candidates who have been selected have obtained Diploma from Pondicherry. u. The recruitment rules contemplate selection. It does not show that the selection can be only by marks. What the Department has done is not a selection process, in its true meaning. v. The applicants are fully qualified and their registration with the Pharmacy Council is valid and they are now in possession of all the certificates and the registration dates back the original date.
17. In support of his arguments, Mr. N.G.R.Prasad, the learned Counsel, placed reliance on the decisions of the Honble Supreme Court (2009) 4 SCC page 555 (MOHD.SOHRAB KHAN Vs. ALIGARH MUSLIM UNIVERSITY) and 2002 (2) LLN page 33 (MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS Vs. RAJENDRA BHIMARAO MANDVE AND OTHERS) for the preposition that the method of selection cannot be changed midstream.
18. Mr.V.Ajayakumar, Learned Counsel for the Petitioner in W.P.No.28572 of 2004 while adopting the contentions raised by Learned Counsel Mr.N.G.R.Prasad would further contend that
1. There are several vacancies in which the petitioners could be accommodated without disturbing the selected candidates.
2. The new notification issued on 24.08.2007 reflects the modified selection procedure.
3. Having commenced the selection process, the Department cannot alter the same in the midstream.
19. Mr.P.V.S.Giridhar appearing for the selected candidates, made the following submissions:
i) There is ambiguity in the language of Clause 10 of the notification dated 27.05.2004 since it says that the date and time of venue of interview will be intimated later.
ii) The test has been conducted only in respect of three categories and there is no error in such an approach.
Iii) Incomplete applications are liable to be summarily rejected and there is no necessity to return the same to the applicant.
iv) Ineligible persons have no locus standi to challenge the selection. v) If at all the selection of his clients can be termed only as irregular and not illegal. vi) The recruitment rules do not support the method of selection and there is no mandate for conducting the written test and therefore there is no violation of the recruitment rule and at the best it can be stated only as an irregularity but not an illegality.
Vii) Their clients have been working for a long period of time and their selection need not be disturbed for no fault committed by them.
The Learned Counsel also placed reliance on the Judgments of the Hon'ble Supreme Court, which are referred to in the later part of this order, to support his contention that the selections made need not be disturbed at this juncture.
20. We have carefully considered the submissions made by the learned counsel for the petitioners as well as the respondents and perused the entire materials available on record. We have also perused the Original Application Forms submitted by the applicants with the Department and also went through the reasons for rejection of the said Applications.
21. During the course of hearing of the Writ Petitions, pursuant to our orders, the applicants were permitted to submit the certificates which are said to be available with them, for consideration of the respondent Department. Accordingly, the certificates were produced and the same were verified and thereupon, the learned Government Pleader (Pondicherry) submitted that only two candidates out of the five candidates satisfied the merit qualification and they are also much below the merit of the selected candidates. In view of the said submissions, it has become necessary for us to go into the question as regards the validity of the selections made and decide the matter on merits.
22. The facts which are not in dispute are that a Notification was issued on 27.5.2004, calling for eligible candidates for various Group C and Group D posts. The Notification prescribes the eligibility condition and the other details which are required to be complied with by the candidates. It is further not in dispute that the Recruitment Rules for the said posts do not prescribe the process to be followed for recruitment. Under the Notification dated 27.5.2004, it had been mentioned that the date, time and venue of the test/interview will be intimated to the candidates later and in terms of Clause 11, the decision of the Government as to the eligibility or otherwise of candidates for appointment to the examination shall be finalised.
23. It is further admitted that no test/interview has been conducted by the Department before publishing the select list of the candidates. This action is sought to be justified by the Department on the ground that the Notification dated 27.5.2004 is a composite Notification for 15 Group C post and one Group D post and wherever the technical expertise of the candidate is required to be examined, the Department had resorted to conduct of test and accordingly test was conducted for recruitment to the post of ECG Technician, Radiologist and Shoe Maker. The Department would further contend that it is not mandatory for them to conduct the test and present procedure adopted for selection of the candidates based on the marks obtained in the qualifying examination as well as the diploma or degree in the relevant subject is fair and reasonable and calls for no interference. The learned counsel would further contend that the applications which were not in complete shape have been rejected summarily and as such the applicants have no locus standi to question the select list.
24. No doubt, it is a settled proposition of law by now that in the midway of selection procedure, the selection procedure cannot be changed and the administration cannot depart from the manner of selection which was notified after the selection process has commenced. It has been held so in catena of cases by the Honourable Supreme Court, the latest being MOHD.SOHRAB KHAN vs. ALIGARH MUSLIM UNIVERSITY [(2009) 4 SCC 555].
25. At the same time it is also a settled proposition of law that an unsuccessful candidate cannot question the selection. In TRIVEDI HIMANSHU GHANSHYAMBHAI vs. AHMEDABAD MUNICIPAL CORPORATION AND OTHERS [2007 (7) SUPREME 438], the Honourable Apex Court has held that the candidates who became unsuccessful in the selection process have no locus standi to challenge the selection list'.
26. As has been discussed supra, the warring groups in the cases on hand would stress the respective propositions in support of their case. While the selected candidates rely on the proposition that the unsuccessful candidates cannot challenge the selection list, the unsuccessful candidates would submit that since the authorities have departed from the earlier selection procedure, they were denied of their due. Since in the cases on hand, ex facie it is clear that the authorities have diverted from the earlier method of selection of test/interview to that of taking into consideration the 50% of the marks obtained in the SSLC or its equivalent and 50% of marks obtained in Diploma/Degree in Pharmacy secured by the candidates, thus changing the selection procedure in the midway of the selections, the same has to be declared as illegal, in view of the dictum laid down by the Honourable Supreme Court in catena of cases, the latest being MOHD.SOHRAB KHAN vs. ALIGARH MUSLIM UNIVERSITY [(2009) 4 SCC 555]. It is also to be made clear that if at all the authorities want to change the pattern of selection, they should intimate the same to the candidates. But, the question that requires to be considered is whether the unsuccessful candidates are having any locus standi to challenge the selection, so as to set aside the entire selection. In this backdrop, now we are called upon to discuss the merits and demerits of the cases.
27. In the reply filed before the Tribunal, in paragraph No.8, the Department has set out the reasons for rejection of the applications of the unsuccessful candidates, as non-production of S.S.L.C. Mark Sheet and non-production of valid Diploma and Registration.
28. In this regard, Mr.N.G.R.Prasad, learned counsel for the unsuccessful candidates would submit that they had furnished all the documents as required and they have enclosed the copy of the Higher Secondary Mark statements and admittedly the Higher Secondary Certificate is a higher qualification than that of the S.S.L.C. In any event, the applicants/unsuccessful candidates are in possession of the S.S.L.C. Mark Sheets and if they had been provided an opportunity, they could have produced the same for consideration.
29. On the question of provision of a valid registration from the Pharmacy Council, the learned counsel would contend that during the relevant point of time they had applied for renewal and paid the required fee for renewal and they were awaiting the endorsement. Therefore, the applicants had produced the certificate available with them along with proof to show that they have paid the renewal fee. As on date, they have a valid certificate and the renewal effected by the Department is with retrospective effect and on the relevant date, their registration with the Pharmacy Council was valid.
30. Thus, it is an admitted fact on the part of the unsuccessful candidates also that their applications themselves have been rejected by the authorities for some reason or other, which appear to be genuine and bonafide, since no malafides have been either attributed to the authorities in the Selection Committee or proved. But, a strange argument has been advanced on the part of the unsuccessful candidates that if at all the authorities found any error or omission in the applications of the candidates, they should have only returned the applications for proper compliance, instead of rejecting the same. We are not at all convinced with this argument advanced on the part of the unsuccessful candidates. When a prescribed format and procedure have been prescribed and when certain requirements have also been sought to be complied with on the part of the applicants, ignoring or omitting the same and not complying with the said requirements, would automatically make the candidates ineligible and therefore, the candidates cannot seek any more time for compliance of those requirements. If such a practice is adopted and followed, there may not be any meaning in fixing a 'close date' for receipt of the applications and it would be a never ending process. We assume, for a post, the required qualification is graduation and a candidate who has no qualification on the date of the notification, would also apply and would seek grant of time till he completes his graduation. Only to avoid such untoward and unnecessary things, such compliance of the requirements while submitting the application itself is mandated. When there is no dispute regarding the fact that the unsuccessful candidates in the case on hand have not complied with the required particulars, thus letting lose their options, they cannot now turn back and put blame on the authorities as if an opportunity should have been afforded to them to correct the applications or comply with the requirements. Therefore, this argument advanced on the part of the unsuccessful candidates is rejected.
31. When the unsuccessful candidates are not at all the candidates competing with the successful candidates, in its strict sense, they cannot even be referred as unsuccessful candidates, because the term applies only to a candidate participated in the process but unable to succeed. In this view of the matter, applying the ratio laid down by the Honourable Apex Court in catena of judgments, including the one cited above in TRIVEDI HIMANSHU GHANSHYAMBHAI vs. AHMEDABAD MUNICIPAL CORPORATION AND OTHERS [2007 (7) SUPREME 438], we hold that the applicants before the Tribunal/unsuccessful candidates have no locus standi to question the selection of the successful candidates. Further more, even though the deviation of the authorities from the selection procedure is illegal, the unsuccessful candidates would not have got any opportunity to participate in the selection procedure, since their applications themselves have been rejected at the threshold for non-compliance of certain requirements. Therefore, the attempt made on the part of the unsuccessful candidates to get the entire selection nullified cannot be appreciated.
32. Another argument advanced on the part of the unsuccessful candidates is that though in the notification dated 27.5.2004 only 18 vacancies were notified, the Selection Committee has filled up 25 vacancies, besides reserving one seat, as per the order of the Tribunal in O.A.No.737 of 2004, dated 20.8.2004 and this shows the hurried manner in which the selections have been made by the authorities. True, in the notification dated 27.5.2004 only 18 vacancies of Pharmacist (Allopathy) Group C were notified. But, the authorities are fully authorized to fill up the vacancies as on the date of selection. As such, since by the time of selection on 22.11.2004, eight more posts fell vacant, they were also included to the already notified 18 posts and for the total of 26 posts selections were made. But, because of the order of the Tribunal in O.A.No.737 of 2004, dated 20.8.2004, filed by one K.K.Mohanan, one post was kept vacant. While filling up the rest of 25 vacancies, the Selection Committee has also prepared a wait list with six unreserved candidates, five OBC candidates and two SC candidates, thus totaling to 13 posts, in due compliance of the procedure contemplated under the service jurisprudence, wherein we are unable to find any illegality or irregularity.
33. Then coming to the selection of the successful candidates also, we are not able to find any illegality. The selection was based on the 50% of the marks obtained in the SSLC or its equivalent and 50% of marks obtained in Diploma/Degree in Pharmacy. The entire list of 25 selected candidates shows that the order of merit has been duly followed by the authorities, besides satisfying the requirement of reservation. At this juncture, it is to be pointed out that it is not at all the case of the unsuccessful candidates that they are more meritorious than the selected candidates.
34. Pursuant to our directions, the unsuccessful candidates viz. A.Sukumar, A.Pandirajan and C.Thirunavukarasu have appeared before the Director of the Directorate of Health and Family Welfare Services, Puducherry and have also produced their certificates. As per the report filed by the said Authority, all these three candidates belong to OBC category and the cut off marks for the OBC category (i.e. the mark obtained by the last OBC candidate Mr.Sandamourthy.S in the selection list dated 22.11.2004) is 75.37. But, all the above said three candidates have secured 63.85%, 57.41% and 38.05% respectively and thus they not at all fall within the zone of merit for the post of Pharmacist.
35. When the unsuccessful candidates have failed to establish their case in any manner and further more, being unsuccessful, they are not entitled to challenge the selection, we are not able to appreciate the findings rendered by the Tribunal, in upholding the case of the unsuccessful candidates.
36. Mr.P.V.S.Giridhar, learned counsel appearing for the selected candidates would contend that the candidates have been selected and appointed in the post and have joined duty on 9.12.2004 and are continuously working and if they are to be thrown out of employment at this stage, for no fault committed by them, their right to livelihood would be affected and the selected candidates would be put to irreparable hardship.
37. The learned counsel would place reliance on various Judgements of the Honourable Supreme Court in support of his contentions that the selection need not be set aside. The Honourable Supreme court in (2009) 1 SCC page 768 (TRIDIP KUMAR DINGAL Vs. STATE OF WEST BENGAL), has held as follows:
"53. In our considered opinion, the law laid down by this Court in aforesaid and other cases applies to the present situation also. We are of the considered view that it would be inequitable if we set aside appointments of candidates selected, appointed and are working since 1998-1999. We, therefore, hold that the Tribunal and the High Court were right in not setting aside their appointments."
38. The learned counsel would further contend that the appointment of the selected candidates cannot be termed as illegal appointment and could at best be termed as an irregular appointment and the Honourable Supreme Court in (2007) 1 SCC 7373 (MUNICIPAL CORPORATION. JABALPUR Vs. OM PRAKASH DUBEY) held of irregular appointment are different from that of illegal appointment.
39. The Honourable Supreme Court in (2008) 5 SCC 241 (GOVERNMENT OF ANDHRA PRADESH Vs. K.BRAHMANANDAM) held that appointments made in violation of mandatory provisions is illegal and therefore void and illegality cannot be ratified, but, irregular can be.
40. The learned counsel would also placed reliance upon the Judgment of the Supreme Court in 2002 (2) LLN page 33 (MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS Vs. RAJENDRA BHIMRAO MANDVE AND OTHERS), wherein the Honourable Supreme Court in order to give quietus to the controversy, directed conduct of a driving test, considering that there are only ten persons who are to be considered for appointment, directed them to be considered favourably keeping in mind their performance in the Driving Test and marks obtained by them in the said test and personal interview and accommodate them only if they were medically found fit for the post. The learned counsel by placing reliance on the decision of the Hon'ble Supreme Court, would contend that they should be permitted to continue based on the selection made.
41. Mr.T.Murugesan, learned Special Government Pleader appearing for the Government of Puducherry, on the other hand would contend that the selection conducted by them is fair and reasonable, the procedure adopted by them is just and proper and therefore, the question of selecting the applicants does not arise at this juncture. The learned Special Government Pleader would further contend that if the selection made by them in December 2004 is to be upset at this juncture, it would not only be against the interest of the selected candidates, but also against the public interest.
42. From the materials placed on record, we are able to see that the selection list was published on 22.11.2004 and all the selected candidates have joined their duties in November or December 2004 and that they all have successfully completed their probation and have settled in their jobs, without pursuing any other profession or job, though, as has been submitted on the part of the Government of Puducherry, many other notifications have been published by various Governmental or Public Sector Organisations. Though the authorities have deviated from the earlier mode of selection of test/interview to that of taking into consideration the 50% of the marks obtained in the SSLC or its equivalent and 50% of marks obtained in Diploma/Degree in Pharmacy secured by the candidates, they have strictly followed the latter version and have selected the meritorious candidates among the applicants, to which no motive or malafide intention has either been attributed or proved by the applicants/unsuccessful candidates. Therefore, we are in complete agreement with the arguments advanced on the part of the successful candidates that if at all the appointments of the selected candidates could only be irregular and can never be illegal, in view of our above discussion, and therefore, they need not be made to suffer any further agony. Further, any attempt to set aside the appointments of the selected candidates done five years back, will lead to disastrous changes in the lives of the selected candidates, for no mistake committed on their part. This should not be allowed to happen, that too at the instance of unsuccessful candidates, who are not at all meritorious than the selected candidates nor even the competitors to the selected candidates, since their applications themselves have been rejected at the very threshold. Therefore, viewing the cases even from this angle, we find no merit in the case of the unsuccessful candidates and their contentions need to be rejected and accordingly, rejected.
43. However, since it has been brought to our notice that there are some more vacancies to be filled up in the category of Pharmacist (Allopathy) and ANM/Maternity Assistant, and further taking into consideration the fact that the unsuccessful candidates might have been already age barred and even if any fresh notification is issued for the selection they cannot compete for the same, and further it has not been the case of the Government of Puducherry also that there is any ban on the selections, we direct the Government of Puducherry to identify the vacancies in the category of Pharmacist (Allopathy) and ANM Maternity Assistant and issue a fresh notification for selection within a period of twelve weeks from today. In such event, in the fresh notification, it shall be made clear that for the candidates who have already applied (who are age barred now, including the candidates whose applications have been rejected like the 'unsuccessful candidates' in the cases on hand) pursuant to the earlier notification dated 27.5.2004, their age as on 14.6.2004 will alone be taken into consideration, as has been notified in the earlier notification dated 27.5.2004, if they are otherwise eligible, and it shall be an one time relaxation only, not to be claimed as a precedent for future notifications, if any.
For the above discussions, the order passed by the Tribunal is set aside and all these writ petitions shall stand disposed of accordingly. No costs. Connected Miscellaneous petitions are closed.
(E.D.R.J.) (T.S.S.J.)
4-08-2009
Index :Yes
Internet:Yes
rpa/Rao
To
1.Union of India rep. By
Government of Pondicherry through
The Secretary to Government for
Health & Family Welfare Services
Pondicherry.
2.The Director of Heath & Family
Welfare Services
Pondicherry
3. Central Administrative Tribunal,
Madras Bench,
Rep. by the Registrar,
High Court, Madras-104.
ELIPE DHARMA RAO. J,
and
T.S.SIVAGNANAM. J,
(rpa/Rao)
Pre- Delivery Common Order in
W.P.Nos.28572 of 2004,
14203,9097, 9098 of 2007
4-08-2009