Telangana High Court
Mahendernath Chadipaka vs The State Of Telangana on 26 December, 2024
Author: G.Radha Rani
Bench: G.Radha Rani
THE HONOURABLE SRI JUSTICE SUJOY PAUL
AND
THE HONOURABLE DR. JUSTICE G. RADHA RANI
WRIT PETITION Nos.26038, 23775, 23907, 28488,
28576, 32482 and 32978 OF 2024
COMMON ORDER (Per Hon'ble Justice Sujoy Paul):
In these batch of Writ Petitions filed under Article 226 of the Constitution, the legality, validity, propriety and constitutionality of G.O.Ms.No.29 dated 08.02.2024, whereby G.O.Ms.No.55 dated 25.04.2022 was amended, and G.O.Ms.No.96, dated 22.07.2019 are called in question. The vires of Rule 22 (2) (a) and (b) of The Telangana State and Subordinate Service Rules, 1996 (Rules of 1996) is also called in question.
2. Draped in brevity, the relevant facts necessary for adjudication of these matters are as under:
25.04.2022 - G.O.Ms.No.55 was issued which deals with recruitment and pattern of examination for Group-I services.
26.04.2022 - Notification No.4/2022 was issued inviting application for 503 vacancies.
13.01.2023 - Result of first preliminary examination was declared followed by result of second preliminary examination.
23.09.2023 - Result of preliminary examination was questioned in W.P.No.15811 of 2023 and the same was allowed by directing to re-conduct the preliminary examination.2
27.09.2023 - Order passed in W.P.No.15811 of 2023 was unsuccessfully challenged in W.A.No.942 of 2023.
SLP was filed by the Telangana Public Service Commission (TGPSC) assailing both the orders passed in W.P.No.15811 of 2023 and W.A.No.942 of 2023.
08.02.2024 - The impugned G.O.Ms.No.29 was issued amending G.O.Ms.No.55.
19.02.2024 - Above mentioned SLP was withdrawn by TGPSC.
19.02.2024 - The above notification No.4/2022, dated 26.04.2022, was cancelled.
19.02.2024 - New recruitment notification No.2/2024 as per G.O.Ms.No.29 was issued.
09.06.2024 - Preliminary examination was held. 13.06.2024 - Preliminary key published.
17.06.2024 - Objections to the key were invited. 24.06.2024 - Optical Mark Recognition (OMR) sheets were made available.
07.07.2024 - Final key was published.
07.07.2024 - List of short listed candidates in the ratio 1:50 in order of merit was published.
31.07.2024 - W.P.No.21239 of 2024 was filed challenging the notification dated 2/2024, dated 19.02.2024 and also the key. Prayer to conduct exam as per Notification No.4/2022 was also made.
15.10.2024 - W.P.No.21239 of 2024 was dismissed. 18.10.2024 - W.A.Nos.1188 and 1190 of 2024 challenging the order dated 15.10.2024 in W.P.No.21239 of 2024 were dismissed.
3 06.12.2024 - SLP (C) No.27790 of 2024 challenging the orders of this Court in W.P.No.21239 of 2024 and W.A.No.1190 of 2024 was dismissed.
Contentions of the petitioners:
3. In W.P.No.23775 of 2024, Dr. Aditya Sondhi, learned Senior Counsel representing Sri Palle Srinivas Reddy, urged that as per the directions contained in the order of this Court in W.P.No.15811 of 2023 affirmed in W.A.No.942 of 2023, the only option left with TGPSC was to 're-conduct' the examination. If TGPSC intended to conduct a new examination, appropriate direction should have been taken from this Court. In the teeth of direction of this Court to re-conduct the preliminary examination, cancellation of earlier notification No.4/2022, dated 26.04.2022 and issuing new notification No.2/2024, dated 19.02.2024 is bad in law. Secondly, in the event of re-conduct of examination, the respondents were required to adhere to the same number of vacancies whereas pursuant to new notification No.2/2024, they have enhanced the number of vacancies from 503 to 563, thereby enlarged the zone of consideration, which is impermissible. This amounts to change of rule of game after commencement of the game. Reliance is placed on a recent Constitution Bench judgment of the Supreme Court in Tej Prakash Pathak v.4
Rajasthan High Court 1. Criticizing G.O.Ms.No.29, dated 08.02.2024, it is argued that the reason for bringing this GO is bad in law. The judgment of the Supreme Court in A.P. Public Service Commission v. Baloji Badavath 2 cannot be a reason to bring G.O.Ms.No.29. The other reason assigned is pendency of certain cases before this Court which cannot be a valid reason to introduce impugned G.O.Ms.No.29.
4. Learned Senior Counsel further urged that in previous round of litigation i.e., W.P.No.3048 of 2023 wherein G.O.Ms.No.55, dated 25.04.2022, was called in question, the respondents filed their counter and supported the said GO. They even supported the ratio of 1:50 by highlighting that it is highest in the country. In this backdrop, there was no justification in amending G.O.Ms.No.55 by introducing G.O.Ms.No.29. The judgment of Madhya Pradesh High Court in Kishor Choudhary v. State of M.P. 3 was referred to contend that the view taken in the said judgment is affirmed by the Supreme Court in Deependra Yadav v. State of Madhya Pradesh 4. It is urged that in view of judgment of the Supreme Court in Saurav Yadav v. The State of 1 2024 SCC OnLine SC 3184 2 AIRONLINE 2009 SC 624 3 2022 SCC OnLine MP 5442 4 (2024) 6 SCR 36 5 Uttar Pradesh 5, if reserved category candidates secure more marks than the last selected general category candidate, they are entitled to secure a berth as general category candidate at every stage of selection. The action of the respondents runs contrary to this settled method.
5. Dr. Aditya Sondhi, learned Senior Counsel representing Sri Palle Srinivas Reddy, learned counsel for the petitioners in W.P.No.23775 of 2024 referred to certain paragraphs of judgment of Supreme Court in the case of Ashok Kumar v. State of Bihar 6, Manish Kumar Shahi v. State of Bihar 7 and Meeta Sahai v. State of Bihar 8 to contend that the estoppel is not coming in the way of the petitioners in a case of this nature, where arbitrariness is writ large and certain errors in the selection process could be gauged only during participating in the selection process. For this purpose, recent judgment of Supreme Court in the case of Abhimeet Sinha v. High Court of Judicature at Patna 9 was referred.
5 AIR 2021 SC 233 6 (2017) 4 SCC 357 7 (2010) 12 SCC 576 8 (2019) 20 SCC 17 9 (2024) 7 SCC 262 6
6. Pertinently, during the course of hearing Dr. Aditya Sondhi, learned Senior Counsel and Sri Srinivas, party-in-person in W.P.No.32978 of 2024 provided a 'web-note' published by TGPSC relating to present recruitment. A note was also handed over to the Court by another counsel regarding the 'decoding of web-note' prepared by certain petitioners. It is submitted that the calculation of vacancies even as per 'web-note' runs contrary to G.O.Ms.No.29, dated 08.02.2024. If G.O.Ms.No.55, dated 25.04.2022, is followed, it will take care of principles laid down by the Madhya Pradesh High Court in the case of Kishor Choudhary (supra), which is in consonance with law laid down by the Supreme Court in Saurav Yadav and Deependra Yadav (both supra).
7. Sri E. Madan Mohan, learned Senior Counsel representing Sri M. Srinivas, learned counsel for the petitioners in W.P.No.26038 of 2024, borrowed the aforesaid argument, and in addition, submitted that the ratio of 1:50 has been grossly breached. The vacancies must be filled up category wise. This includes 'social' as well as 'special' reservation category. The ratio of 1:50 needs to be applied category wise and not enbloc. For example, if 209 general category posts were notified as per 1:50 7 ratio, 10450 persons could have been called up for consideration. Likewise, in every category, same formula should have been applied. However, the present number shown by TGPSC makes it clear that 3232 candidates were admitted beyond the said ratio. While undertaking aforesaid exercise, meritorious reserved category candidates may be placed in reserved quota, whereas they should have secured berth in general category. To buttress this argument, the judgment of the Supreme Court in Indra Sawhney v. Union of India 10 was referred. By placing reliance on the judgment of the Supreme Court in Rajesh Kumar Daria v. Rajasthan Public Service Commission 11, it was contended that the judgments prescribed the procedure/steps of selection. The respondents are not acting in consonance with the principles laid down therein.
8. Rule 22 (2) (a) and (b) of the Rules of 1996 were questioned by contending that G.O.Ms.No.96, dated 22.07.2019, was issued whereby clauses (a) and (b) were substituted in Rule 22(2). So far, prescription of 4% reservation to handicapped/special category is concerned, learned Senior Counsel fairly urged that he has no objection to such prescription because the same is in consonance 10 (1992) 3 SCC Supp. 217 11 (2007) 8 SCC 785 8 with Section 34 of The Rights of Persons with Disabilities Act, 2016 (Disabilities Act). The eyebrows are raised on Rule 22 (2) (a) and (b) of the Rules of 1996 on the point that roster points were prescribed for special categories, whereas as per the judgment of Rajesh Kumar Daria (supra), such horizontal reservation must cut across categories and cannot be governed by roster points. The judgment of A.P. High Court in M.Reddi Bhaskar Reddy v. State of Andhra Pradesh 12 was referred to support the aforesaid argument. Similarly, executive instructions issued by the Government about roster point were also relied upon.
9. Sri J. Sudheer, learned counsel for the petitioners in W.P.No.32482 of 2024, urged that TGPSC being an independent constitutional body must conduct the examination on constitutional principles and not on political considerations. He submits that previous notification No.4/2022, dated 26.04.2022 was issued by the previous Government ruled by a different political party. The said notification was illegally cancelled in alleged 'public interest', whereas it is against the public interest. By placing reliance on the judgment in State of Tamil Nadu v. 12
AIR Online 2021 AP 34 9 K.Shyam Sunder 13, he urged that correction of mistake or improvement from previous policy of Government is although a possible exercise it should not be undertaken on political considerations. The whole attempt of new Government in issuing a new notification is to take credit of the recruitment by extending the zone of consideration. This being arbitrary, hits Article 14 of the Constitution. He also relied on the argument advanced by Dr. Aditya Sondhi, learned Senior Counsel.
10. By placing reliance on State of Karnataka v. All India Manufacturers Organization 14 and K.Shyam Sunder (supra), he submitted that existence of power and the manner in which power is to be exercised, are two different facets. The power used in bad faith for improper reasons cannot sustain judicial scrutiny. Therefore, G.O.Ms.No.29, dated 08.02.2024 must be declared as unconstitutional and discriminatory in as much as one group of people i.e., O.C, B.C-B and B.C-D are benefitted beyond their limits of 1:50 ratio while others were restricted in as much as MRCs of those categories.
13
2011(8) SCC 737 14 AIR 2006 SC 1846 10
11. Lastly, Sri J. Sudheer, learned counsel for petitioners in W.P.No.32482 of 2024 submits that G.O.Ms.No.29, dated 08.02.2024, was uploaded on 06.08.2024. The G.O.Ms.No.96, dated 22.07.2019, is called in question only in W.P.No.32482 of 2024. Although, the petitioners are not handicapped persons, they are aggrieved because the roaster points are given to special reservation quota which is impermissible. The whole selection process is a fraud on the constitution.
12. Sri S. Srinivas and Sri Ashok Kumar, party-in-persons in W.P.Nos.32978 and 23907 of 2024 respectively and Sri J. Sudheer, learned counsel for the petitioners in W.P.No.32482 of 2024 urged that in the manner candidatures are being called there will be favourable representations of certain categories of candidates at the cost of other communities.
13. Sri V. Yadu Krishna Sainath, learned counsel representing Ms. K. Kiran Mayee, learned counsel for the petitioners in W.P.No.28488 of 2024, also borrowed the argument of Senior Counsel, and in addition, urged that in view of judgment of Pitta Naveen Kumar v. Raja Narsaiah Zangiti 15, new vacancies and persons who became eligible on issuance of subsequent 15 2006 (1) SCC 261 11 notification dated 19.02.2024 cannot be permitted to be filled up. The judgment of Chattar Singh v. State of Rajasthan 16 was highlighted to show that rule of reservation must be applied respective category wise at every stage of selection.
14. Ms. K. Kiran Mayee, learned counsel for the petitioners in W.P.No.28488 of 2024 submits that as per the notification, new vacancies could have been added through 'addendum' and not by issuing fresh notification No.2/2024, dated 19.02.2024. The selection process is always subject to constitutional principles and estoppel cannot be a hurdle.
15. In W.P.No.28576 of 2024, learned counsel borrowed the previous arguments. The written submissions are filed in W.P.No.28576 of 2024 by Sri L. Ravichander, learned Senior Counsel representing Sri Kavipurapu S.V.K.N. Mukhendu Kaushik, learned counsel for the petitioners. In these submissions, most of the points mentioned hereinabove are again reiterated. In nutshell, it is canvassed that G.O.Ms.No.29, dated 08.02.2024 deprives meritorious reserved category candidates to occupy the position in merit list of general category candidates. The short listing method adopted by the TGPSC runs contrary to the Presidential Order and even G.O.Ms.No.29. The 16 1996 (11) SCC 742 12 delay and latches cannot be basis for mechanical dismissal of the Writ Petitions because this Court is guardian of Fundamental Rights under the Constitution. Lastly, it is submitted that the whole selection needs to be conducted afresh as per un-amended G.O.Ms.No.55, dated 25.04.2022, by conducting a uniform mains examination for all the selected candidates without recourse to normalization. In support of these submissions, certain judgments are relied upon. The conflicting stand of the State in its counter is also highlighted and reliance is placed on an unreported judgment of Supreme Court in the case of Andhra Pradesh Public Service Commission v. K. Prasad17. Contentions of the respondents:
16. Sri P.S. Rajasekhar, learned Standing Counsel for TGPSC, by taking this Court to the data mentioned in the 'web-note' submits that a sizable number of candidates participated in the preliminary examination of impugned selection pursuant to notification dated 19.02.2024 and could not be selected. Such failed candidates cannot be permitted to assail the rule, notification or G.O.Ms.No.29 and 96. More-so, when the petitions and appeals challenging the notification dated 19.02.2024 and seeking restoration of previous notification No.4/2022, dated 17 Civil Appeal No.9140 of 2013, dated 07.10.2013 13
26.04.2022 have been dismissed by this Court and Supreme Court has also declined interference. Moreover, the candidates who are successful in the preliminary examination have not laid any basis in their pleadings how they can be termed as 'person aggrieved'. Thus, on both counts, these petitions may be dismissed.
17. He further submitted that G.O.Ms.No.29, dated 08.02.2024 is in consonance with the judgment of the Supreme Court in Baloji Badavath (supra). The petitioners have not assigned any reason much less justifiable reason for belatedly filing these petitions. In the present batch of petitions, W.P.No.23907 of 2024 was filed on 23.08.2024, whereas all other connected matters were filed thereafter. Since the petitions filed in previous round are dismissed challenging notification and recruitment process of same selection, these petitions may not be entertained. Reliance is placed on the judgment of the Supreme Court in Ashok Kumar (supra) to contend that after a gap of few months, the petitions are filed and on this score alone, the petitions may be dismissed. The judgment of Supreme Court in State of Tamil Nadu v. G. Hemalatha 18 is referred to show that the instructions issued by 18 (2017) 4 SCC 357 14 TGPSC are mandatory in nature. Thus, no fault can be found in the selection. He referred the judgment in Kishor Choudhary (supra) to contend that it is totally based on different facts and rules and has no application in the instant case.
18. Sri Rahul Reddy, learned Special Government Pleader for State, borrowed the argument of learned Standing Counsel for TGPSC, and in addition urged that the petitioners have not stated in their petitions as to how they are 'person aggrieved' and how their fundamental rights are infringed. In absence thereof, the attack to G.O.Ms.No.29 dated 08.02.2024, G.O.Ms.No.96 dated 22.07.2019 and Rule 22 (2) (a) and (b) of the Rules of 1996 cannot be entertained. By taking this Court to the entire journey from 03.02.1967 when G.O.Ms.No.103 was issued, till issuance of G.O.Ms.No.29, Sri Rahul Reddy urged that the GOs were issued/modified from time to time to bring them in tune with the law laid down by the Courts. No fault can be found in the said exercise. On more than one occasion, he submits that every candidate as per his own merit will be considered as per the Rules. If a reserved category candidate has secured more marks than last selected general candidate, he will certainly secure a berth in general category. The principles laid down in the 15 judgment of Kishor Choudhary, Deependra Yadav and Saurav Yadav (all supra) are not violated.
19. He has placed heavy reliance on State of M.P. v. Nandilal Jaiswal 19 to highlight the impact of delay in challenging the selection and G.Os. He also placed reliance on the judgment of the Supreme Court in Ashok Kumar (supra) on which reliance is placed by learned Standing Counsel for TGPSC. The judgment of the Andhra Pradesh High Court in S.Jaffer Saheb v. State of Andhra Pradesh 20 is referred to show that GOs were issued from time to time as per the principles laid down by the Courts. FINDINGS:-
20. At the outset, we deem it proper to deal with the objection of the learned counsel for the State and TGPSC relating to the aspect of delay and impact of decision of the first round of litigation initiated through W.P.Nos.21239 and 22320 of 2024. It is not in dispute that the same Group-I selection initiated through notification No.4/2022, dated 26.04.2022 was subject matter of challenge in W.P.Nos.21239 and 22320 of 2024 on various 19 (1986) 4 SCC 566 20 1984 SCC OnLine AP 218 16 grounds. The relief claimed by the petitioners therein is worth noticing. The same is reproduced for ready reference:
"Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High court may be pleased to (a) call for the records pertaining to Web-Note dated 19.02.2024, through which earlier Notification No.04/2022 dated 26.04.2022 was cancelled and the consequential second notification No.02/2024 dated 19.02.2024 and set them aside as bad illegal, unfair, unsustainable, unconstitutional, besides being contrary to public interest and contrary to the directions of this Hon'ble Court in WP.No.15811 of 2023 dated 23.09.2023 as affirmed by the Division Bench in WA.No.942 of 2023 dated 27.09.2023 and consequently direct the 1st respondent/Public Service Commission to conduct fresh preliminary examination in pursuance of notification No.04/2022 dated 26.04.2024 (b) alternatively declare that 503 vacancies notified in pursuance of first Notification dated 26.04.2022 be confined to those who have applied and participated in pursuance of the said notification and consequently direct TGPSC to segregate 563 vacancies into 503 old vacancies and 60 new vacancies and confine consideration separately based on their eligibility by further holding the action of public service commission in clubbing both old and new vacancies and expanding the competition by including ineligible candidates as bad illegal and unconstitutional (c) declare the extension of time by two days beyond 14.03.2024 to apply in pursuance of notification No.02/2024 dated 19.02.2024 granted by the public service commission leading to unnecessary expansion of the competition and aiding those did not apply within time at the cost of those who have applied within time as bad, illegal, unsustainable, beyond competence and unconstitutional and consequently set aside the second notification dated 19.02.2024 or to delete from the competition, those who have applied beyond 14.03.2024 (d) declare the action of PSC in prescribing 10 percent reservation in the second notification No.02/2024 dated 19.02.2024 for 503 vacancies as well though G.O.Ms.No.33 issued on 30.09.2022 is prospective as bad, illegal, unfair and consequently direct PSC to confine l0 percent reservation for ST for the newly notified 60 vacancies only, (e) hold the preliminary examination held 17 on 09.06.2024 as illegal and unsustainable in view of innumerable the flaws/ blunders in the setting of question of paper and/or incorrect answers and consequently direct the TGPSC/1st respondent to conduct fresh preliminary examination (f) by issuance of Writ, Order or Direction, more particularly one in the nature of Writ of Mandamus."
(Emphasis Supplied)
21. Indisputedly, the recruitment notification No.2/2024, dated 19.02.2024, was issued in furtherance of G.O.Ms.No.29, dated 08.02.2024. The notification No.2/2024 contains a stipulation that it was issued as per G.O.Ms.No.29.
22. A microscopic reading of prayer made in W.P.No.21239 of 2024 shows that the petitioners therein prayed for setting aside the second notification No.2/2024, dated 19.02.2024 and prayed for restoration of notification No.4/2022, dated 26.04.2022. It was further prayed that issuance of notification No.2/2024, dated 19.02.2024 runs contrary to the directions of this Court in W.P.No.15811 of 2023 decided on 23.09.2023. Further, direction prayed for was to conduct fresh preliminary examination in pursuance to notification No.4/2022, dated 26.04.2022. It was prayed that the selection should be confined to 503 vacancies notified in pursuance to first notification dated 26.04.2022. A prayer to segregate the vacancies was also made. It was also 18 specifically prayed for to set aside the second notification dated 19.02.2024.
23. The Writ Court by common order dated 15.10.2024 dismissed the W.P.No.21239 of 2024 by recording the following finding:
"10. ...Thus, after a lapse of six months from the date of cancellation of old notification, the petitioners approached this Court without assigning any reasons for delay, much less, day-to-day delay. If the petitioners in W.P.No.21239 of 2024 are really aggrieved by the cancellation of notification No.4/2022, dated 26.04.2022, through web note dated 19.02.2024, they ought to have approached this Court and challenged the same at the earliest point of time itself. Though the delay on the part of the petitioners appears to be only six months, but, in a matter of this nature, the day-to-day delay matters and further the petitioners failed to explain even a single reason for the delay in approaching this Court. Therefore, on this ground alone, this Court is not inclined to entertain Writ Petition No.21239 of 2024, without adverting to the other grounds raised therein,..."
(Emphasis Supplied)
24. Admittedly, this order of the learned Single Judge was unsuccessfully challenged in W.A.Nos.1188 and 1190 of 2024 and the Division Bench of this Court while affirming the order of the Writ Court relied upon the judgment of Supreme Court in the case of Ashok Kumar (supra).
25. Admittedly, SLP (C) No.27790 of 2024 was dismissed in limine by order dated 06.12.2024 by the Supreme Court, wherein 19 the order of this Court in W.A.No.1190 of 2024 was called in question.
26. A conjoint reading of the above order of the Writ Court and one which is passed in Writ Appeal, which are relating to same Group-I selection, which is subject matter in the instant batch shows that the Court declined to entertain the petition on the ground of delay in approaching the Court. It was poignantly held that the delay on the part of the petitioners may be of only six months, but in matter of this nature, day-to-day delay matters and the petitioners failed to explain even a single reason to explain the delay in approaching this Court. It is noteworthy that Sri J. Sudheer, learned counsel for the petitioners in W.P.No.32482 of 2024 urged that G.O.Ms.No.29, dated 08.02.2024, was not uploaded till 16.08.2024. Thus, this fact satisfies the aspect of delay in filing the petitions. We do not see any merit in this contention for twin reasons. Firstly, the notification No.2/2024 was admittedly published on 19.02.2024, which gives reference to G.O.Ms.No.29, dated 08.02.2024. Thus, in February, 2024 itself, the candidates were made aware that this notification No.2/2024 is founded upon G.O.Ms.No.29 and nothing prevented them to promptly file the Writ Petition and pray that the said G.O. 20 allegedly not available in public domain, be requisitioned by the Court and interfered with. No attempts were made to obtain G.O.Ms.No.29 through Right to Information Act, 2005, immediately after noticing about it through notification No.2/2024, dated 19.02.2024. Secondly, there is no proof filed along with W.P.No.32482 of 2024 regarding non-availability of G.O.Ms.No.29 on the portal. Such proof cannot be entertained if filed through written submissions. Sri J. Sudheer, learned counsel for the petitioners along with written submissions for the first time filed photocopy of the portal to show that G.O.Ms.No.29 was uploaded only on 16.08.2024. In absence of filing any proof with the petition, the respondents had no opportunity to rebut the same. The Apex Court in Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha 21, Arti Sapru v. State of J&K22 and Ashok Lanka v. Rishi Dikshit 23 opined that the principle grounds and more particularly proof relating to facts must be pleaded and placed with the Writ Petition. If it is pleaded even in rejoinder, it cannot be entertained. Thus, at this stage, this document (alleged photocopy of portal) cannot be relied upon.
21 AIR 1959 SC 395 22 (1981) 2 SCC 484 23 (2006) 9 SCC 90 21
27. The chart mentioned herein below shows the dates of filing of petitions challenging the same impugned Group-I recruitment notification.
Previous round Present round
Before Single Bench Before this Bench
Writ Petition Date of Writ Petition Date of
No. filing No. filing
21239 of 2024 02.08.2024 23907 of 2024 23.08.2024
22320 of 2024 13.08.2024 23775 of 2024 28.08.2024
26038 of 2024 20.09.2024
28488 of 2024 14.10.2024
28576 of 2024 14.10.2024
32482 of 2024 19.11.2024
32978 of 2024 19.11.2024
28. The date of filing of petitions in previous round before the Single Bench i.e., W.P.Nos.21239 and 22320 of 2024 is 02.08.2024 and 13.08.2024 respectively, whereas the present batch of petitions were filed much after that. The challenge to same selection process in the previous round failed on the ground of delay. Since the petitions filed prior in time in the previous round were not entertained on the ground of delay, it is not possible for us to persuade ourselves that subsequent round of litigation i.e., the present batch can be entertained by ignoring much larger delay. More-so, when the order passed in W.P.No.21239 of 2024 got stamp of approval by the Division Bench of this Court in Writ Appeal and the SLP before the 22 Supreme Court was also dismissed. The delay is fatal for the present petitions as well. We are not satisfied with the explanation of the delay given in one case as discussed above.
29. The matter may be viewed from another angle. No doubt, in W.P.No.21239 of 2024, G.O.Ms.Nos.96 and 29, dated 22.07.2019 and 08.02.2024 respectively were not subject matter of challenge. Yet, it is noteworthy that recruitment notification No.2/2024, dated 19.02.2024 was issued in compliance of and in furtherance of G.O.Ms.No.29. The relief claimed in previous round in W.P.No.21239 of 2024 and reproduced above leaves no room for any doubt that the relief claimed was to restore the notification No.4/2022, dated 26.04.2022 and conduct selection in relation to those number of vacancies, which were notified therein and also as per the method prevailing at that point of time (as on 26.04.2022). Noticeably, at that point of time G.O.Ms.No.55, dated 25.04.2022 was in operation and G.O.Ms.No.29 was not issued.
30. Since W.P.No.21239 of 2024 was dismissed and prayer to 're-conduct' the selection as per notification No.4/2022, dated 26.04.2022 was not entertained, we are unable to persuade ourselves with the line of argument of Dr. Aditya Sondhi, learned 23 Senior Counsel for the petitioners in W.P.No.23775 of 2024 and Ms. Kiran Mayee, learned counsel for the petitioners in W.P.No.28488 of 2024 that only way for TGPSC was to seek clarification/direction from this Court if they wanted to conduct a fresh selection by issuing notification or TGPSC could have issued an addendum. The new notification No.2/2024, dated 19.02.2024 was directly called in question in W.P.No.21239 of 2024 and the said challenge failed. The inevitable conclusion is that in this subsequent round of litigation relating to same selection the directions cannot be issued to 're-conduct' the selection as per the notification No.4/2022, dated 26.04.2022. Putting it differently, after order of Writ Court in W.P.No.21239 of 2024, which has achieved finality, clock cannot be put back to revive the same selection pursuant to notification No.4/2022, dated 26.04.2022.
31. This is trite that if a relief is claimed and not granted by the Court, it is deemed to have been rejected (see State Bank of India v. Ram Chandra Dubey 24). The candidates of same selection of Group-I in W.P.No.21239 of 2024 claimed relief relating to restoration of notification No.4/2022, dated 26.04.2022 and other reliefs, which were not granted and therefore, shall be treated to 24 (2001) 1 SCC 73 24 be declined. In the fitness of things and as propriety demands, since these matters are pertaining to same selection and present batch of petitions are filed with much delay subsequent to filing of W.P.No.21239 of 2024, this Court cannot take a different view than the view taken by the Writ Court in W.P.No.21239 of 2024. Thus, we are constrained to hold that these petitions are liable to be dismissed on the ground of delay in approaching this Court considering the view taken in W.P.No.21239 of 2024 relating to same selection.
32. So far, the written submissions filed in W.P.No.28576 of 2024 is concerned, in other words, almost same points are raised in this written submissions. There is no convincing argument advanced to explain delay except contending that the Constitutional Court being guardian of Fundamental Rights should not decide the matter on technicality.
33. At the cost of repetition, it cannot be forgotten that the selection questioned in these matters is same selection which became subject matter of challenge in the previous round i.e., W.P.No.21239 of 2024. If lesser delay in filing previous round of litigation was held to be fatal, it is not possible to hold that a much larger delay in filing the present batch of petitions will fade 25 into insignificance. The other contentions raised in the written submissions are relating to merits of the matter which cannot be gone into in view of delay in filing this batch of Writ Petitions.
34. We will be failing in our duty if we won't consider argument of the learned counsel for the parties based on the 'web-note' issued by TGPSC. To criticize the said 'web-note', a parallel note i.e., 'decoding of web-note' was supplied to the Bench during the course of hearing. Pertinently, neither 'web-note' nor facts relating to 'decoding web-note' formed part of pleadings. These notes were supplied to show that the number of vacancies and method sought to fill up of vacancies even runs contrary to the G.O.Ms.No.29, dated 08.02.2024. We are afraid that in absence of pleadings and placing this material before this Court through any permissible mode, no findings can be recorded based on aforesaid notes. However, we hope and trust that during the selection and appointment process, the official respondents will take care that vacancies are filled up strictly in accordance of law.
35. The subsequent events which were sought to be highlighted during oral submissions through 'web-note' and 'decoding web- note' cannot be subject matter of adjudication in the present batch. However, in the interest of justice, we deem it proper to 26 give liberty to the parties to file separate proceedings in relation to that aspect based on subsequent events. However, in view of delay in filing these petitions G.O.Ms.No.96 dated 22.07.2019, G.O.Ms.No.29 dated 08.02.2024 and Rule 22 (2) (a) and (b) of Rules of 1996 cannot be jettisoned.
36. The relief claimed in W.P.No.21239 of 2024 reproduced hereinabove at paragraph No.20 makes it crystal clear that notification No.2/2024, dated 19.02.2024 was called in question and prayer was made to restore previous notification No.4/2022, dated 26.04.2022 and follow the selection procedure prevailing at that point of time. It was prayed to ignore subsequent vacancies also. It was also prayed to 're- conduct' selection as directed in W.P.No.15811 of 2023. All those reliefs claimed directly were not granted in previous round of litigation. This is trite that a thing which cannot be done directly cannot be permitted to be done indirectly (see D.C. Wadhwa v. State of Bihar25 and Shailesh Manubhai Parmar v. Election Commission of India26).
37. This is equally settled that in exercise of discretionary jurisdiction under Article 226 of the Constitution, this Court may not set aside an illegal order even if it would be lawful to do so. 25
(1987) 1 SCC 378 26 (2018) 9 SCC 100 27
38. In, Shiv Shankar Dal Mills v. State of Haryana27, the Apex Court held as under:
"6. Article 226 grants an extraordinary remedy which is essentially discretionary, although founded on legal injury. It is perfectly open for the court, exercising this flexible power, to pass such order as public interest dictates and equity projects."
(Emphasis Supplied)
39. In, Chandra Singh v. State of Rajasthan28, the Apex Court held as under:
"43. Issuance of a writ of certiorari is a discretionary remedy. (See : Champalal Binani v. CIT, (1971) 3 SCC 20 : AIR 1970 SC 645].) The High Court and consequently this Court while exercising their extraordinary jurisdiction under Article 226 or 32 of the Constitution of India may not strike down an illegal order although it would be lawful to do so. In a given case, the High Court or this Court may refuse to extend the benefit of a discretionary relief to the applicant
44. ...This Court in Brji Mohan Gupta case [(2003) 2 SCC 390 :
2003 SCC (L&S) 1741 has also refused to exercise its discretionary jurisdiction in favour of the appellants although the order of the High Court was found liable to be set aside being not in accordance with law."
(Emphasis Supplied)
40. In, Master Marine Services (P) Ltd. v. Metclfe & Hodgkinson (P) Ltd.29, the Apex Court opined as under:
"The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should interfere."27
(1980) 2 SCC 437 28 (2003) 6 SCC 545 29 (2005) 6 SCC 138 28 (Emphasis Supplied)
41. In view of forgoing discussion, no relief is due to the petitioners in this batch of Writ Petitions. The Writ Petitions are dismissed with liberty mentioned in paragraph No.35. There shall be no order as to costs. Miscellaneous applications, if any, pending shall stand closed.
_______________________ JUSTICE SUJOY PAUL ______________________ Dr. G. RADHARANI, J 26th December, 2024.
TJMR/GVR