Madras High Court
K.Vijayaraj vs K.Kumaran on 27 September, 2012
Bench: R.Banumathi, R.Subbiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.09.2012
CORAM :
THE HONOURABLE Mrs.JUSTICE R.BANUMATHI
and
THE HONOURABLE Mr.JUSTICE R.SUBBIAH
Writ Appeal Nos. 486, 487, 502, 675, 676, 807,1316
and 1317 of 2012 and connected M.Ps.
W.A.No.486 of 2012
K.Vijayaraj ... Appellant
..vs..
1. K.Kumaran
2. The Government of Tamil Nadu, rep.
by its Secretary to Government,
Personnel and Administrative Reforms Dept.,
Fort St.George,
Chennai-600 009.
3. The Tamil Nadu Public Service Commission,
rep.by its Secretary,
Omanthoorar Government Estate,
Chennai-600 005.
4. V.Jaya Chitra
5. V.Balamurugan
6. R.Ethiraj
7. C.Anandakumar
8. B.Thulasi Raman
9. E.Elangovan
10.S.Sanjeevi Sathya Seelan
11.M.Kumaravelu
12.K.Chandrasekaran
13.K.Thomas ..Respondents
W.A.No. 487 of 2012
V.Balamurugan ..Appellant
..vs..
1. T.Saravanan
2. P.R.Natarajan
3. V.R.Sharmila
4. The Secretary,
Tamil Nadu Public Service Commission,
1, Greams Road,
Old Commercial Tax Office Annexure,
Chennai-600 006.
5. The Secretary to Government,
State of Tamil Nadu,
Personnel and Administrative Reforms Dept.,
Fort St.George,
Chennai-600 009.
6. C.Anandakumar
7. K.Vijayaraj
8. E.Elangovan
9. B.Thulasi Raman
10.S.Sanjeevi Sathya Seelan
11.M.Kumaravelu
12.Bharathi Raja ..Respondents
W.A.No. 502 of 2012
R.Ethiraj ..Appellant
..vs..
1. The Government of Tamil Nadu,
rep.by its Secretary to Government,
Personnel and Administrative Reforms Dept.,
Fort St.George,
Chennai-600 009.
2. Tamil Nadu Public Service Commission,
rep.by its Secretary,
Omandurar Government Estate,
1, Greams Road,
Chennai.
3. G.Jayachitra
4. V.Balamurugan
5. C.Anandakumar
6. B.Thulasiraman
7. E.Elangovan
8. K.Vijayaraj
9. S.Sanjeevi Sathya Seelan
10.M.Kumaravelu
11.K.Chandrasekaran
12.K.Thomas
13.K.Kumaran ..Respondents
W.A.No.675 of 2012
The Tamil Nadu Public Service Commission,
rep.by its Secretary,
Omanthoorar Government Estate,
Chennai. ..Appellant
..vs..
1. K.Kumaran
2. The Government of Tamil Nadu, rep.
by its Secretary to Government,
Personnel and Administrative Reforms Dept.,
Fort St.George,
Chennai-600 009.
3. V.Jaya Chitra
4. V.Balamurugan
5. R.Ethiraj
6. C.Anandakumar
7. B.Thulasi Raman
8. E.Elangovan
9. K.Vijayaraj
10.S.Sanjeevi Sathya Seelan
11.M.Kumaravelu
12.K.Chandrasekaran
13.K.Thomas ..Respondents
W.A.No. 676 of 2012
Secretary,
Tamil Nadu Public Service Commission,
Greams Road,
Old Commercial Tax Office Annexure,
Chennai-5. ..Appellant
..vs..
1. T.Saravanan
2. P.R.Natarajan
3. V.R.Sharmila
4. Secretary to Government,
State of Tamil Nadu,
Personnel and Administrative Reforms Dept.,
Secretariat,
Chennai-600 009.
5. V.Balamurugan
6. C.Anandakumar
7. K.Vijayaraj
8. E.Elangovan
9. B.Thulasi Raman
10.S.Sanjeevi
11.M.Kumaravelu
12.K.Bharathiraja ..Respondents
W.A.No. 807 of 2012
1. K.Kumaran ..Appellant
..vs..
1. The Government of Tamil Nadu, rep.
by its Secretary to Government,
Personnel and Administrative Reforms Dept.,
Fort St.George, Chennai-600 009.
2. The Tamil Nadu Public Service Commission,
rep.by its Secretary,
Omanthoorar Government Estate,
Chennai-600 005.
3. V.Jaya Chitra
4. V.Balamurugan
5. R.Ethiraj
6. C.Anandakumar
7. B.Thulasi Raman
8. E.Elangovan
9. K.Vijayaraj
10..S.Sanjeevi Sathya Seelan
11.M.Kumaravelu
12.K.Chandrasekaran
13.K.Thomas ..Respondents
W.A.No. 1316 of 2012
The Government of Tamil Nadu, rep.
by its Secretary to Government,
Personnel and Administrative Reforms Dept.,
Fort St.George,
Chennai-600 009. ..Appellant
Vs.
1. K.Kumaran
2. The Tamil Nadu Public Service Commission,
rep.by its Secretary,
Omanthoorar Government Estate,
Chennai-600 006.
3. V.Jaya Chitra
4. V.Balamurugan
5. R.Ethiraj
6. C.Anandakumar
7. B.Thulasi Raman
8. E.Elangovan
9 K.Vijayaraj
10.S.Sanjeevi Sathya Seelan
11.M.Kumaravelu
12.K.Chandrasekaran
13.K.Thomas ... Respondents
W.A. 1317 of 2012
The Secretary to Government,
State of Tamil Nadu,
Personnel and Administrative Reforms Dept.,
Fort St.George,
Chennai-600 009. .. Appellant
..vs..
1. T.Saravanan
2. P.R.Natarajan
3. V.R.Sharmila
4. The Secretary,
Tamil Nadu Public Service Commission,
1, Greams Road,
Old Commercial Tax Office Annexure,
Chennai-600 006.
5. V.Balamurugan
6. C.Anandakumar
7. K.Vijayaraj
8. E.Elangovan
9. B.Thulasi Raman
10.S.Sanjeevi Sathya Seelan
11.M.Kumaravelu
12.K.Bharathi Raja ..Respondents
Prayer: Writ Appeals No.486, 502, 675, 807 and 1316 of 2012 and Writ Appeals No.487, 676 and 1317 of 2012 filed under Clause 15 of Letters Patent against the common order dated 06.03.2012 passed by a learned single Judge in W.P.Nos.6114 and 7948 of 2011 respectively.
For Appellants : Mr.R.Gandhi, Sr.Counsel for Mr.Naveen Kumar Murthi in W.A.No.486/2012; R7 in W.A.Nos.
487, 676 & 1316/2012; R8 in W.A.502/2012 &
R9 in W.A.675,807 and 1316/2012
Mr.R.Vijay Narayan, Sr.Counsel for Mr.
A.S.Rajkumar Vadivel in W.A.No.487/2012;
R4 in W.A.502, 807 and 1316/2012; R5 in
W.A.Nos.486,675,676 and 1317/2012
Mr.K.M.Vijayan, Sr.Counsel for M/s.K.M.Vijayan
Associates in W.A.No.502/2012; R6 in W.A.
486/2012 and R5 in W.A.675,807 and
1316/2012
Mr.N.S.Nandakumar in W.A.Nos.675 and 676 of
of 2012; R2 in W.A.502, 807 and 1316/2012 &
R3 in W.A.486/2012 and R4 in W.A.487 and
` 1317/2012
Mr.AR.L.Sundaresan, Sr.Counsel for
Ms.A.L.Gandhimathi in W.A.No.807/2012; R8 in
W.A.486,675 and 1316 of 2012
Mr.A.Navaneethakrishnan, Advocate General
assisted by I.S.Inbadurai, Spl.G.P.in W.A.No.
1316 and 1317 of 2012; R2 in W.A.486 and
675/2012; R5 in W.A.487/12; R1 in W.A.
502 and 807/2012 and R4 in W.A.676/2012
For Respondents:Mr.C.Selvaraj, Sr.Counsel for M/s.C.S.
Associates for R2 and R3 in W.A.Nos.487,
676 and 1317/2012
No appearance for R4, R8 and R9 in W.A.No.
486/12 and R7 to R9 and R11 in W.A.No.1887 487/12
COMMON JUDGMENT
R.BANUMATHI, J and R.SUBBIAH, J., All these appeals arise out of a common judgment dated 06.03.2012 passed in W.P.Nos.6114 and 7448 of 2011.
2. W.P.No.6114 of 2001 has been filed by an unemployed graduate and W.P.No.7448 of 2011 has been filed by 3 individuals, who are working as Assistants in the Secretariat. Both the writ petitions have been filed challenging the decision taken by the Government of Tamil Nadu to fill up 186 posts of Assistant Section Officers (ASO) in the Secretariat, other than Law and Finance Department, on the basis of Notification bearing No.219 dated 15.11.2009.
3. Originally a Notification was issued by TNPSC for 21 different interview posts under the concerned Subordinate Service including 4 posts of ASO in the Office of TNPSC and 13 posts of ASO in the Law Department, Secretariat Service. Subsequent to the Notification dated 15.11.2009 and before the date of examination, the Government issued G.O.(4D) No.7, Personnel and Administrative Reforms, dated 22.03.2010 relaxing Rule 8 of the Special Rules for Tamil Nadu Secretariat Services so as to fill up 186 posts of Assistant Section Officer (ASO) through Tamil Nadu Public Service Commission by direct recruitment in one unit at Secretariat for the year 2009-2010.
4. The main contention of the writ petitioners is that the Notification No.219 dated 15.11.2009 issued only for 13 vacancies of ASO ( Law Department) in Secretariat and 4 vacancies of ASO in the office of Tamil Nadu Public Service Commission (TNPSC). Hence, the Government has no power to fill up 186 posts of ASO i.e. beyond the vacancies advertised in Notification No.219 issued by TNPSC by increasing the number of vacancies.The abovesaid writ petitions were filed only against the Government and TNPSC. Subsequently, some of the candidates selected as ASOs impleaded themselves as respondents in both the writ petition and contested the same.
5. Learned single Judge, by a common order dated 06.03.2012, allowed both the writ petitions with the following directions:
(i) The selection in pursuance of the Notification dated 15.11.2009 shall be confined only to the vacancies notified in the advertisement dated 15.11.2009; and
(ii) It may be open to the Government to fill up 186 posts of Assistant Section Officers in the Departments of the Secretariat (other than Law and Finance) which were diverted to be filled up by direct recruitment by G.O.4D.No.7 dated 22.3.2010, on the basis of the selection conducted in pursuance of the later Notification dated 30.12.2010 and 8.2.2011 and the supplementary notification dated 11.06.2011".
6. Since writ petitions were allowed by confining the vacancies notified in the Notification, selected candidates, who impleaded themselves as respondents in both the writ petitions, have filed W.A.No.486, 487 and 502 of 2012. Similarly, aggrieved over the order of the learned single Judge, the Government has filed W.A.Nos.1316 and 1317 of 2012 and TNPSC has filed W.A.No.675 and 676 of 2012. Likewise, aggrieved over one of the directions given by the learned single Judge to fill up 186 posts of ASOs., vide later Notification dated 30.12.2010 and 08.02.2011 and the supplementary notification dated 11.06.2011, W.A.No.807 of 2012 has been filed by K.Kumaran, writ petitioner in W.P.No.6114 of 2011.
7. Since 8 Writ Appeals have been filed against the common order dated 06.03.2012 by all the parties and their ranking differs in each appeal, for convenience, the parties are hereafter referred to as under:
Appellant in W.A.486, 487 and 502 of 2012 .. selected candidates Appellant in W.A.807 of 2012 and R1 to R3 in W.A.317 and 676 of 2012 .. writ petitioners Appellant in W.A.Nos.1316 and 1317 of 2012 .. State Government;and Appellant in W.A.675 and 676 of 2012 .. TNPSC
8. The facts and circumstances giving rise to these appeals are as follows:
TNPSC invited applications for direct recruitment to 21 different interview posts under the Combined Subordinate Services Examination-I i.e.1017 interview posts in 13 Subordinate Services (vide-Table-I) and 82 posts in another 8 Subordinate Services posts (vide Table-II). Selection for interview posts is made in two successive stages by written examination and oral test and selection for non-interview post is by written examination only. Post Code number of those posts and number of vacancies notified in the advertisement dated 15.11.2009 are as follows:
S.No. Post Service Post Code No.of vacancies 1 Municipal Commissioner-
Grade-II Tamil Nadu Municipal Commissioner Subordinate Service 1092 3 2 Assistant Section Officer (Law Dept.) in Secretariat The Tamil Nadu Secretariat Service 1073 13 3 Assistant Section Officer in TNPSC Tamil Nadu Secretariat Service 2201 4 4 Probation Officer Tamil Nadu Social Defence Subordinate Service 1011 10 5 Probation Officer Tamil Nadu Jail Subordinate Service 1023 4 6 Junior Employment Officer Tamil Nadu General Subordinate Service 1017 9 7 Assistant Inspector of Labour Tamil Nadu Labour Subordinate Service 1068 20 8 Sub Registrar Grade-II Tamil Nadu Registration Subordinate Service 1071 29 9 Women Welfare Officer Tamil Nadu Social Defence Subordinate Service 1012 1 10 Supervisor of Industrial Co-operatives Tamil Nadu Industries Subordinate Service 1022 7 11 Audit Inspector in HR & CE Department Tamil Nadu Ministerial Service 1029 27 Applications were invited up to 5.45 PM on 30.12.2009 and the written examination was scheduled to be conducted on 11.04.2010.
9. The controversy involved in the writ appeals is only with regard to the posts of ASO. In the Notification dated 15.11.2009 Sl.No.3 vide Table No-I, TNPSC had notified the post of ASO in the office of TNPSC under Post Code No.2201 for 4 vacancies. In Sl.No.2, 13 vacancies were notified to the post of ASO in the Law Department, Secretariat under Code No.1073. According to the writ petitioners, except 4 vacancies under Code No.2201 and 13 vacancies of ASO under Code No.1073, no other posts of ASO were notified in the Notification/ Advertisement No.219 dated 15.11.2009. But, subsequently, supplement to the said Notification No.219 dated 15.11.2009 issued by the TNPSC, the State Government vide G.O.(4D) No.7 P & AR(U) Department dated 22.03.2010 passed an order relaxing the Rule 8 of Tamil Nadu Secretariat Service Special Rules for the purpose of recruitment of 186 posts of ASO which are vacant in the Tamil Nadu Secretariat Service through the TNPSC. It is the grievance of writ petitioners that pursuant to G.O.(4D) No.7 dated 22.03.2010, no Notification was issued by TNPSC notifying the 186 vacancies. Hence, according to the writ petitioners, after having invited applications for 4 posts of ASO that too in the office of TNPSC in Tamil Nadu Secretariat Service under Code No.2201 and 13 posts of ASO in the Tamil Nadu Secretariat Service in Secretariat (Law Department), the Government is contemplating to fill up 186 posts of ASO., for which relaxation was granted on 22.03.2010 to select from and out of the candidates who had already applied for and undertaken the written examination pursuant to the Commissions Notification dated 15.11.2009. That apart, TNPSC is contemplating to till up 26 vacancies in the Office of TNPSC in Tamil Nadu Secretariat Service under Post Code No.2201 in excess of the notified number of 4 vacancies. Hence, W.P.No.6114 of 2011 came to be filed by an unemployed graduate stating that the action of TNPSC in attempting to fill up non-notified posts/ posts in excess of number of vacancies is arbitrary, unjust and violative of Articles 14 and 16 of the Constitution of India.
10. Similarly, three individuals, who are working as Assistants in Secretariat filed W.P.No.7948 of 2011. It is their specific contention that the petitioners are working as Assistants in the Secretariat The 186 posts of ASO which was not notified under Notification No.219 dated 15.11.2009 are to be filled up by way of 50% direct recruitment and 50% given to the promotees. When more than thousand Assistants are working in the Secretariat, the action of the State Government to fill up the 186 vacancies of ASO., which was notified under Notification No.219 is arbitrary, illegal and is liable to be interfered with.
11. Both the writ petitions are filed for a Mandamus forbearing the Government and TNPSC from filling up the 186 posts of ASO in Secretariat (other than Law and Finance Department) in Tamil Nadu Secretariat Service under the Post Code No.1072, for which advertisement/Notification has not been issued, and 26 posts of ASO in the office of TNPSC in the Tamil Nadu Secretariat Service under Post Code No.2201 in excess of notified number of vacancies, from among the candidates who have applied for and taken written examination pursuant to the notification/advertisement dated 15.11.2009.
12. These writ petitions were resisted by the Government by filing counter affidavit stating that in the Department of Secretariat other than Law and Finance Departments for the year 2009-2010, the then existing vacancies were 293 in the post of ASO as on 16.02.2010; out of which, only 281 are substantive and 22 candidates were already awarded from the withheld list of Combined Subordinate Services Examination-I, 2008 from the TNPSC from the previous year's (2008-2009) selection. Further, 91 persons from the category of direct Assistants in the Tamil Nadu Secretariat Service were already given temporary promotion as ASO. It was also further proposed to give temporary promotion to 30 direct Assistants as ASO who were fully qualified for the post. It was estimated that 43 directly recruited Assistants will become eligible for the post of ASO within few months. But no qualified persons are available from the feeder category to the post of ASO at the time. Hence it was decided to fill up remaining 186 posts in the category of ASO by direct recruitment through TNPSC by relaxing Rule 8 of Special Rules for the Tamil Nadu Secretariat Service. All the departments of Secretariat were pressing to fill up the huge vacancies prevailed in the post of ASO. Due to dearth of hands in the feeder category posts (Assistant, Senior Personal Clerk, Senior Typist, Non- Graduate Assistant) to the post of ASO., it could not be filled up by the method of promotion. In order to overcome the difficulty faced by the Departments of Secretariat due to the huge vacancy prevailed in the post of ASO., they had no other option except to fill up the vacancies by direct recruitment in relaxation of Rule 8 of Special Rules for the Tamil Nadu Secretariat Service.
13. Taking the large number of vacancies, numbering 186, Government took a policy decision to fill up the post by direct recruitment and issued orders in G.O.(4D) No.7, Personnel and Administrative Reforms Department, dated 22.03.2010 and, thereafter TNPSC was requested to select qualified persons from the Combined Subordinate Services Examination-I, 2009. Since already Notification was issued by TNPSC for the Combined Subordinate Services Examination-I, 2009, which includes the post of ASO., under Tamil Nadu Secretariat Service, TNPSC was requested by the Government in Letter No.9486/U/2010-2011, Personnel and Administrative Reforms Department dated 22.03.2010 to select qualified persons from the Combined Subordinate Services Examination-I, 2009 (Notification 219) itself.
14. The written examination was conducted for the candidates who have applied for the Combined Subordinate Services Examination-I, 2009 on 11.04.2010. Based on the results of the written examination, eligible candidates were called for oral test. During the oral test, the candidates have their liberty to exercise the preference of posts and the post of ASO under Sl.No.2 in the Tamil Nadu Secretariat Service has been listed among the posts included in the Combined Subordinate Services Examination-I, 2009.
15. Due to administrative compulsion in view of huge number of vacancies prevailing in the post of ASO in Secretariat, it is inevitable to undertake the process of selection through the recruitment itself, i.e.Combined Subordinate Services Examination-I, 2009, which is a rational policy decision taken by the Government. In the Notification dated 15.11.2009 itself, it has been mentioned that the vacancies are liable for modification. The action of the Government is well within the ambit of Rules and instructions in force and it will be in no way prejudice to the interest of the writ petitioners. Thus, they prayed for the dismissal of the writ petitions.
16. The learned single Judge, after hearing the submissions of the learned counsel on either side and by relying upon the decisions cited by the parties, allowed writ petitions holding that the selection in pursuance of the Notification dated 15.11.2009 should be confined only to the actual number of vacancies notified in all departments, including 13 posts of ASO in Law Department, Secretariat and 4 posts of ASO in TNPSC and the Government cannot fill up 186 posts of ASO on the basis of the selection conducted in pursuance of the Notification dated 30.12.2010 and 08.02.2011 as supplemented by the supplementary Notification dated 11.06.2011; however, the learned single Judge has given liberty to the Government to fill up these 186 posts of ASO., by calling for fresh Notification.. Aggrieved over the same, these writ appeals are filed.
Submissions made on behalf of selected candidates:
17. Learned Senior Counsel Mr.R.Gandhi appearing for one of the selected candidates (Appellant in W.A.No.486 of 2012), by inviting the attention of this Court to clause 3-B of General Information given in Notification No.219 dated 15.11.2009 submitted that a reading of the said clause would reveal that number of posts called for by the Combined Subordinate Services Examination-I is only approximate. Subsequently, G.O.(4D) No.7 dated 22.03.2010 was issued by relaxing Rule 8 of Tamil Nadu Secretariat Service Special Rules to fill up 186 posts of ASO by direct recruitment in one unit at Secretariat since there is a pressure from all the departments to fill up the huge vacancies prevailed in the post of ASO. The writ petitioners (R1 in W.A.No.486 of 2012 and R1 to R3 in W.A.No.487 of 2012) have not chosen to challenge this G.O.(4D) No.7 dated 22.03.2010. Therefore, now they cannot be permitted to challenge or assail the validity or correctness of the Government Order at this stage. In support of this contention, the learned senior counsel has relied on the decisions reported in Prem Singh .vs. Haryan State Electricity Board (1996) 4 SCC 319), Rakhi Ray .vs. High Court of Delhi (2010) 2 SCC 637) and Amlan Jyoti Borooah .vs. State of Assam (2009) 3 SCC 227. Further, Notification was issued only for Combined Subordinate Services Examination-I and the candidates who are applying for the said Examination do not apply for any particular post. They only apply for the group of posts specified in the advertisement. In the instant case, more than 21 posts in various departments totalling to 1007 posts were notified. Selection is a sliding selection based on the marks secured by the candidate in the written examination combined with the marks secured by the candidate in the interview. The appellant has given preference to the posts indicated in the advertisement only at the time of interview. Since the appellant has secured highest marks, he has been appointed to the post of ASO. The learned senior counsel has relied on the decisions reported in All India SC & ST Employees' Association and another .vs. Arthur Jeen and others (2001) 6 SCC 380 and Suvidya Yadav and others .vs. State of Haryana and others (2002) 10 SCC 269) to sustain the selection of 186 vacancies by G.O.(4D) No.7.
18. Learned Senior Counsel Mr.Vijay Narayan appearing for one of the selected candidates (Appellant in W.A.No.487 of 2012), submitted that by Notification No.219 dated 15.11.2009, 4 vacancies under Code No 2201 in TNPSC and 13 vacancies under Code No.1073 in Law Department, Secretariat were called for and the writ petitioner in W.P.No.6114 of 2011, who is an unemployed graduate, was qualified to apply for the post even during the date of advertisement itself, but he has not applied. Therefore, the said writ petitioner cannot have any grievance over the increase in the vacancy position because his right to participate in the process was never affected.
19. It was submitted that only after taking into consideration the fact that no qualified person was available in the feeder categories for the promotion to the post of ASO by direct recruitment, the Government has issued G.O.4D No.7 dated 22.03.2010, relaxing Rule 8 of Special Rules for Tamil Nadu Secretariat Service. The writ petitioners without challenging the said G.O. cannot be permtited to stall the appointment process in the present writ petitions. Learned senior counsel relied on the judgment reported in Suvidya Yadav & Others .vs. State of Haryana and others ((2002) 10 SCC 269) submitted that if the advertisement contains a variation clause, the State would be entitled to fill up excess vacancies that have arisen after the issue of advertisement.
20. Learned Senior Counsel Mr.Vijayan appearing for selected candidates (Appellant in W.A.No.502 of 2012) submitted that pursuant to the Notification dated 15.11.2009, totally 21 different posts called for, which consists 13 posts in Table-I and 8 posts in Table-II of the Notification. Table-I includes Sl.No.2 relating to 13 posts of ASO in Law Department, Secretariat and Sl.No.3 relating to 4 posts of ASO in TNPSC. The candidates seeking to select the post were not given an option of selection to particular vacancy at the time of application and the application is for all the posts in Sl.No.1 to 11 and the option to the particular post is given only at the time of oral examination subsequent to the written examination. Only after calling for applications, a decision was taken in G.O.(4D) No.7 dated 22.03.2010 for further vacancies of 186 posts of ASO., which was also sought to be included in the original notification dated 15.11.2009 by relaxing Rule 8 of Special Rules for Tamil Nadu Secretariat Services. The relaxation of said rule was not challenged by the respondents. Appellant had attended the written examination on 11.04.2010 and have passed their written examination and only thereafter, the petitioners opted to be selected in the vacancy additionally created subsequent to G.O.4D.No.7. Since they have scored highest marks they have selected for the post of ASO Secretariat. At this juncture, writ petitions were filed and the Court had granted status quo. The writ petitions were taken up for final hearing and the learned single Judge has allowed the writ petitions. Aggrieved over the said order in setting aside the selection of 186 posts, some writ appeals have been filed by the selected candidates. By relying upon the judgment reported in Prem Singh .vs. Haryana State Electricity Board (1996)4 SCC 319) the learned senior counsel submitted that the State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in emergent situation and that too by taking a policy decision in that behalf. Therefore, in the instant case, no infirmity could be found in the process of filling up the posts of 186.
Submissions made on behalf of TNPSC:
21. Mr.Nandakumar, learned counsel appearing for TNPSC submitted that pursuant to the notification dated 15.11.2009, TNPSC has received 438389 applications for all the posts, out of which, 419863 were admitted for written examination scheduled to be held on 11.04.2010. Results were published on 09.01.2011. In the meantime, before conducting written examination, the Government, by relaxing the recruitment rules in G.O.(4D) No.7, P & and AR dated 22.03.2010 directed to recruit for 186 posts of ASO which are vacant in the Tamil Nadu Secretariat Service. On the same day, a letter was sent by the Secretary to Government to TNPSC to select suitable candidates to fill up 186 candidates for the post of ASO from the proposed Combined Subordinate Service Examination vide Notification No.219. Due to shortage of candidates in Feeder categories, it was decided to select 186 ASOs. Recruitment rule has been changed in accordance with the provisions contained in Article 162 of the Constitution of India by the Government through the order of the Governor. Hence, there is is no illegality in the selection of 186 posts of ASO and there is no violation of Articles 14 and 16.
22. Learned counsel appearing for TNPSC further submitted that the ratio and exemptions for filling up the non-notified vacancies settled in Prem Singh's case (supra) is reiterated in the judgment reported in All India SC & ST Employees' Association and another .vs. Arthur Jeen and others (2001) 6 SCC 380. Therefore, there is no infirmity in the selection of 186 posts of ASO. But this Court, by order dated 11.03.2011 in M.P.No.1 of 2011 in W.P.No.6114 of 2011 has granted the order of status quo, which was subsequently vacated o 26.09.2011. Thereafter, the consolidated allotment orders for provisional appointment by concerned appointing authorities in the Subordinate Services was notified on 07.10.2011. In the appeal filed by the writ petitioners as against the vacating the order of status quo dated 26.09.2011 in W.A.No.1887 of 2011 was also dismissed by a Division Bench of this Court and another writ appeal filed by three writ petitioners in W.A.No.1935 of 2011 was also dismissed on 31.10.2011. Therefore, the writ petitioners are bound by the order of the Division Bench.
Submissions made onbehalf of Government:
23. Mr.A.Navaneethakrishnan, learned Advocate General submitted that the writ petitioners have no locus standi to question the selection of 186 posts of ASO by G.O.(4d)No.7 dated 22.03.2010 since they have not applied for that post. Since all the departments in Secretariat were pressing to fill up the huge vacancies prevailed in the post of ASO, the Government, by exercising its powers in Volume-I of Tamil Nadu Service Rules, 1987, General Rule 48 of Part-II of Tamil Nadu State and Subordinate Service Rules, issued G.O.(4D) No.7, by relaxing Rule 8 and this relaxation of Rule 8 was not challenged by the writ petitioners. Above all, they have not added the selected candidates as party respondents and on this ground alone, the writ petitions are liable to be dismissed by allowing the writ appeals.
Submissions made onbehalf of Writ Petitioners:
24. Countering the said submissions, Mr.AR.L.Sundaresan, learned senior counsel appearing for one of the writ petitioners, by name, Kumaran (Appellant in W.A.No.807 of 2012) submitted that the action of the official respondents in issuing G.O.(4D) No.7 in filling up of posts in excess of notified vacancies is unconstitutional and violative of Articles 14 and 16 of the Constitution of India. With regard to the submission made by the selected candidates that as per clause 3-B of the General Information in Notification dated 15.11.2009, the Government has right to modify the vacancy position before finalising the oral test for selection of candidates, it is the submission of learned senior counsel that even if clause 3-B of General Information in Notification is taken into consideration without admitting the legality of the same, even then for Post Code No.1072 - 186 vacancies, recruitment cannot be made at the time of oral interview since the same was not even notified and clause 3-B will not apply to such situation. In short, it is the submission of learned senior counsel that without notifying the vacancies, recruitment for 186 posts for the post of ASO cannot be made merely based on G.O.(4D)No.7 dated 22.03.2010.
25. With regard to the submission that the Government, in exceptional circumstances or in emergent situation, by taking a policy decision, more than the notified vacancies can be filled up, it is submitted by the learned senior counsel that in the instant case, neither exceptional circumstances nor emergent situation was available and moreover, no policy decision was taken to fill up 186 posts of ASOs. In the instant case, the oral interview was conducted only in February/March 2011 i.e. one year three months from the date of Notification. By the time, notification could have been issued inviting applications for the increased/non-notified posts and applications could have been called for from the qualified candidates and the constitutional method of selection after publication of Notification ought to have been resorted to in compliance of Art.14 and 16. There is no justification for introducing non-notified post at the time of oral interview and increasing the number of vacancies in the notified post. Moreover, in G.O.(4D) No.7 dated 22.03.2010, it has been stated that Rule 8 is relaxed only for administrative reason and no emergent situation has been stated.
26. With regard to the locus standi of the writ petitioner, it is submitted that by the learned senior counsel that there is no estoppel in challenging the action of the Government and TNPSC merely because appellant had not applied for the post pursuant to the notification dated 15.11.2009 or for the subsequent notification. This appellant is entitled to apply and his right to apply for 26 posts under Post Code No.2201 and 186 posts under Post Code No.1702 has been denied by not inviting the said posts/vacancies through the Notification. Since it was not invited by the Notification, now it cannot be contended that as the writ petitioner had not applied for the post, he has no locus standi to question the same. Had the applicant known that the vacancy would be increased, he would have applied for the post in pursuance of Notification dated 05.11.2009. But, here, without issuing any Notification, surprisingly vacancies were increased, which is against the Constitutional mandate. In this regard, learned counsel relied upon a judgment reported in Amlan Jyoti Borooah .vs. State of Assam (2009) 3 SCC 227).
27. With regard to the non-impleading of selected candidates as party respondents, learned senior counsel further submitted that the appointment orders were not issued to them as on the date of filing the writ petitions. Even before the selection was made, on 11.03.2011 itself, the learned single Judge of this Court has passed an order of status quo and while vacating the said order, it was made clear that the selection will be subject to the outcome of the cases. Even the Division Bench while confirming the said interim order, observed that the parties will not be prejudiced at the time of final hearing byvirtue of the interim order. The list of provisionally selected candidates was published on 07.10.2011 which clearly states that it is subject to the outcome of the writ petition. Even the letter dated 23.03.2012 calling for the selected candidates to appear for counselling for issuance of allotment orders provides that it is subject to the final outcome of the writ petition. Counselling was scheduled to be held on 07.03.2012, but the order was passed in the writ petitions on 06.03.2012. Hence, no right had been accrued on the candidates on the date of filing writ petition and under such circumstances, non-impleading of them would not vitiate the writ petition. In this regard, the learned senior counsel relied on the judgment reported in Sanjay Bhattacharjee .vs. Union of India and others (1997(4) SCC 283), Mukhul Saikia and others .vs. State of Assam and others (2009 (1) SCC 386), Rakhi Ray and others .vs. High Court of Delhi and others (2010(2) SCC 637), State of Orissa and others .vs. Raj Kishore Nanda and others (2010(6) SCC 777) and K.Lakshmi .vs. State of Kerala andothers (2012(5)MLJ 898 (SC). Further, the learned counsel submitted that the direction given in para 40(ii) of the judgment is not sustainable and deserves to be set aside.
28. Learned senior counsel Mr.C.Selvaraj appearing for respondents 2 and 3 in W.A.No.487 of 2012 submitted that each service is governed by Subordinate Service Rules framed under Article 309 of the Constitution of India. The Code number of ASO in Law Department is 1073 and for the ASO in Secretariat other than Law and Finance Departments, code Number is 1072 and for the ASO in TNPSC, Code No.is 2201. Each Unit has got separate seniority, promotion in the respective unit. One cannot be promoted to other Unit vice versa. Under Code No.2201 in Notification No.219, only 4 vacancies were notified and under Code No.1073, 13 vacancies were notified and only at the time of sending call letters, 186 vacancies are increased in the post of ASO in Secretariat Service without issuing any Notification, but by G.O.(4D) No.7 dated 22.03.2010. Since it has been mentioned in Clause 3-B of the Notification that the vacancies advertised is only approximate, it does not mean that vacancies in particular Code Number can be increased. In other words, there can be modification of vacancies either increase or decrease and it could be only in respect of notified posts with code number. Moreover, in G.O., the Government has not stated that those direct recruitments are to be made from and among the candidates who applied pursuant to the Notification No.219 dated 15.11.2009. Therefore, the question of challenging the G.O.does not arise. So far as the letter sent by the Secretary dated 22.03.2010 to the TNPSC requesting them to recruit 186 posts of ASO, it is only an only internal communication. Under the said letter, there is no reference with regard to the policy decision taken by the Government and as such, the question of challenging the said letter also l does not arise in this case. Under such circumstances, the selection of 186 posts of ASO is arbitrary, illegal and violative of Articles 14 and 16 of Constitution of India.
29. We have considered the rival submissions made by learned counsel for the parties and perused the materials available on record.
30. Considering the submissions and counter submissions made by the parties, the questions fall for consideration in these appeals are:-,
(i) Whether there was extraordinary situation as contended by State Government justifying filling up of more vacancies than notified ?
(ii) Whether selection of 186 posts of ASO by issuing G.O.(4D) No.7 dated 22.03.2010 is in violative of Articles 14 and 16 of Constitution of India ?
(iii) Whether the writ petitions are bad for non-joinder of selected candidates ?
(iv) Whether the petitioners are having locus standi to challenge the selection of 186 posts of ASOs ?
31. The core submission of the writ petitioners is that the State Government cannot select candidates for 186 posts of ASO., which are non-notified vacancies and, hence, Selection of 186 posts of ASOs is in violative of Articles 14 and 16 Constitution.
32. It is not in dispute that on 15.11.2009, the State Government has issued a Notification/Advertisement for Combined Subordinate Services Examination-I in Advertisement No.219. It is pertinent to note that the said Notification is not for single post but for 21 different posts in the Combined Subordinate Services. Selection of 13 categories of posts included in Table-I, is to be made through written examination followed by oral test, whereas selection of 8 categories of posts included in Table-II, is to be made through written examination alone. 13 vacancies of ASO posts found place in Sl.No.2, under Post Code No.1073, is pertaining to Law Department, Secretariat and 4 vacancies of ASO post found place in Sl.No.3, under Post Code No.2201, is pertaining to TNPSC. Last date to receive the applications was on 30.12.2009 and date of written examination was fixed on 11.04.2010.
33. While preparing the estimate of vacancies for the post of Assistant Section Officer in the Department of Secretariat other than Law and Finance Department, for the year 2009-2010, the then existing vacancies were 293 in the post of Assistant Section Officer as on 16.2.2010. After taking into account persons eligible for promotion and also who will be eligible for promotion as Assistant Section Officer, it was noticed that 186 posts are to be filled. Government noted that no qualified persons are available in the other feeder categories i.e., "Senior Personal Clerk, Senior Typist, Non-Graduate Assistant" for promotion to the post of Assistant Section Officer and hence, it was decided to fill up the 186 posts in the post of category of Assistant Section Officer by Direct Recruitment through Public Service Commission) by relaxing Rule 8 of Special Rules for Secretariat Service to fill up the vacancies numbering 186 by Direct Recruitment. Government took a policy decision to fill up the promotional post by Direct Recruitment.
34. In the month of March, 2010 i.e.on 22.03.2010, the Government had issued G.O.(4D) No.7, by relaxing Rule 8 of Tamil Nadu Secretariat Service Special Rules to fill up 186 posts of ASO in one unit at Secretariat by direct recruitment. G.O.(4D) dated 22.03.2010 is extracted hereunder:
"ORDER:
The Government have decided to fill up the 186 post of Assistant Section Officers through Tamil Nadu Public Service Commission by direct recruitment in one unit at Secretariat for the year 2009-2010 by relaxing the Rule 8 of Tamil Nadu Secretariat Service Special Rules due to administration reasons.
2. To implement the above decision the Government have exercised its powers prevailed in Volume-I of Tamil Nadu Service Rules 1987, General Rule 48 of Part-II of Tamil Nadu State and Subordinate Service Rules to fill up the 186 post of Assistant Section Officers in one unit at Secretariat by direct recruitment through TNPSC by relaxing the Rule 8 of Tamil Nadu Secretariat Service Special Rules".
35. Referring to the said G.O, on 22.03.2010, Secretary, P & A.R.Department sent letter No.9486/U/2010-1 to TNPSC to select qualified persons from CSSE-I 2009 notification No.219 itself. The said communication was sent even before the written examination is scheduled for 11.4.2010. Based upon the request from the Government, while sending interview call letters, TNPSC sent the call letters including Code No.1072 for 186 posts of Assistant Section Officer (other than Law and Finance Department) in Secretariat, T.N.Secretariat Service. The said communication was sent even before the written examination. In so far as T.N.Secretariat Service, Personnel and Administration Department, the Government is the appointing authority to various posts in the Secretariat. The appointing authority directed TNPSC to select suitable candidates to fill up 186 candidates for the post of Assistant Section Officers from the proposed CSSE Examination I, 2009 (Notification No.219).
36. Hence, two writ petitions came to be filed one in W.P.No.6114 of 2011 by an unemployed graduate, namely, Kumaran, one of the respondents in all the appeals and another in W.P.No.7948 of 2011 by three individuals, who are working as Assistants in the Secretariat. But, according to the official respondents, only in order to overcome the difficulties faced by the Departments of Secretariat due to the huge vacancy, the additional posts had been called for, by relying upon clause 3-B of General Information given in the Notification dated 15.11.2009, which reads as follows:
3. General Information:
B. The number of vacancies advertised is only approximate and is liable to modification with reference to vacancy position at any time before finalization of selection for Oral Test or selection for appointment, as the case may be".
37. A reading of Clause 3-B of Notification would clearly show that number of vacancies advertised is only approximate and is liable to modification. Therefore, we are of the opinion that implied reservation was made in the Notification itself to modify the vacancies called for under the said Notification before finalisation of selection for oral test or selection for appointment. In the instant case, written examination was scheduled on 11.04.2010. Even prior to the written examination, on 22.03.2010, by relaxing Rule 8 of Special Rules, G.O(4D) No.7, Personnel and Administrative Reforms Department was issued.
38. It is to be noted that for Combined Subordinate Services Examination 2009-2010, written examination was on 11.4.2010. Tamil Nadu Public Service Commission received Rs.4,38,389 applications for all the posts, out of which 4,19,863 applications were admitted for written examination. 2776 candidates were admitted provisionally to the oral test (Interview) based on the marks obtained by them in the written examination, with reference to the rule of reservation of appointment. Since there are large number of posts of Assistant Section Officers (other than Law and Finance Department) - Post Code No.1072, in the interview call letter figured as Sl.No.2, of 2776 candidates who appeared for Interview, the candidates who secured high marks opted for Assistant Section Officer in Secretariat in the Tamilnadu Secretariat Service.
39. Moreover, as observed above, in the instant case, the Notification was issued for 21 different posts and not for any particular post. At the time of submitting applications, candidates do not apply for any particular post and they only apply for the group of posts specified in the advertisement. In the instant case, 21 different posts in various departments totalling to 1007 posts were notified. Selection is a sliding selection based on the marks secured by the candidates in the written examination combined with the marks secured by the candidates in the interview. The candidates only give their preference to posts indicated in the advertisement and they cannot claim that they ought to be appointed in any particular post unless they have secured the required marks. The candidates have no statutory right or vested right to get appointed in any particular post. The appointment is purely based on the Group Basis and not post basis.
40. From out of the other selected candidates, the candidates, who opted for other services, have already joined the service. While so, the writ petitioners restricted their relief only against 186 posts of Assistant Section Officer in Secretariat. From out of integrated unit of 2776 candidates, who appeared for Interview, in the Combined Subordinate Services Examination, 2009 10, totally, 1193 candidates were selected. From out of the selected integrated unit of 1193, the writ petitioners have only challenged the appointment of 186 candidates, who opted for Assistant Section Officer in the Tamilnadu Secretariat Service.
41. Now, coming to the question that whether filling up of 186 posts of ASO., without notifying the same is illegal or not, we find from the judgment relied on in Prem Singh .vs. Haryana State Electricity Board (1996)4 SCC 319) that the State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances or in emergent situation and that too by taking a policy decision in that behalf. In this regard, it would be appropriate to refer the dictum laid down by the Hon'ble Apex Court in some of the judgments relied upon on behalf of the selected candidates as under;
42. In (1996) 4 SCC 319 (Prem Singh .vs. Haryan State Electricity Board), the Hon'ble Apex Court has held as follows:
"25. From the above discussion of the case-law it becomes clear that the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged the court may not, while exercising its extraordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case". (underlining added)
43. In (2010) 2 SCC 637, (Rakhi Ray .vs. High Court of Delhi ), it has been held as follows:
"7. It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as "the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution", of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to "improper exercise of power and only in a rare and exceptional circumstance and in emergent situation"., such a rule can be deviated from and such a deviation is permissible only after adopting policy decision based on some rationale", otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, is not permissible in law".
44. In (2009) 3 SCC 227 (Amlan Jyoti Borooah .vs. State of Assam )the following has been held:
"39. The appellant did not question the legality and/or validity thereof. He should have done the same at the earliest possible opportunity. Having regard to the emergent situation, in regard whereto we have taken note of earlier, proposal was made to increase the number of vacancies from time to time.
40. The State in an emergent situation would subject to constitutional limitations is entitled to take a decision which subserves a greater public interest. While saying so, we are not unmindful of the fact that the Constitution also demands that candidates who had acquired eligibility for recruitment to the post in the meantime should also be given opportunities to participate in the selection process. This Court times without number had lamented the lackadaisical attitude on the part of the State to treat the matter of selection for appointment to services in a casual and cavalier manner. If no appointment could be made from 1997 to 2001, it is the State alone who could thank itself therefor, but, unless there exists a constitutional or a statutory interdict so as to compel the superior court to set aside the selection which has otherwise been validly made; in exercise of their power of judicial review the same would not ordinarily be interfered therewith".
45. A reading of the said judgments would show that if either in exceptional situation or in emergent situation, more than notified vacancies can be filled up by making policy decision. In the instant case, it is clear from the materials placed before us that there was a huge number of vacancies in the Secretariat in the cadre of ASOs. Hence, no infirmity could be found in the process for filling up the posts of 186 ASOs. Further, it is to be pointed out that these posts were available on the date of Notification itself. Hence, these 186 posts will not fall within the purview of "future vacancies". In fact, it has been stated by the Government in the counter in W.P.No.6114 of 2011 that existing circumstances were 293 in the post of ASO as on 16.02.2010 and out of 293, only 281 were substantive and 22 candidates were already awaited from the withheld list of Combined subordinate Services Examination-I from the TNPSC from previous year's i.e.2008-2009 selection; further, 91 persons from the category of directly recruited Assistants in the Tamil Nadu Secretariat Service were already given temporary promotion as ASO; it was also proposed to give temporary promotion to 30 directly recruited Assistants as ASO who were fully qualified for the post; further, it was estimated that 43 directly Assistants will become eligible for promotion to the post of ASO within few months; no qualified persons are available in the feeder categories (i.e. Senior Personal Clerk, Senior Typist, Non-Graduate Assistant) for promotion to the post of Assistant Section Officer at that time; hence, it was decided to fill up the remaining 186 posts {281 minus (22+30+43)} in the category of ASO by direct recruitment through TNPSC by relaxing Rule 8of the Special Rules for the Tamil Nadu Secretariat Service. Therefore, we we find that there is an emergent situation to fill up 186 posts, for which already a reservation was made under clause 3-B of General Information in Notification.
46. The post of ASO is managerial position in nature. It is very difficult to carry on the functions of Secretariat without being the vacancies of ASO are filled up. Moreover, at the time of submission of applications, the candidates have not applied for any particular post and since they have obtained higher marks than other candidates, later they exercised option to the post of ASO., pursuant to the information given by the official respondents while sending call letters. Hence, the peculiar facts and circumstances of the case would show that, absolutely, there is no infirmity in filling up 186 vacancies since there was an emergent situation. In the light of the above discussion, we do not agree with the view taken by the learned single Judge that there was no emergent situation arisen to fill up 186 posts of ASOs.
47. It is the submission of Mr.AR.L.Sundaresan, learned Senior Counsel that in G.O.(4D) No.7, it has not been stated that there is emergent situation to fill up the posts. When that being the position, the contention of official respondents that there was an emergent situation cannot be accepted. But we find from the said G.O. that though emergent situation was not specifically mentioned, the 186 posts are decided to be filled up for administrative reasons which encompasses the emergent situation also. Moreoever, the learned Advocate General submitted that the decision was taken to fill up 186 posts by circulating files as per the Business Rules of the Secretariat. Further it is the submission of the learned counsel appearing for TNPSC that Recruitment Rule is changed in accordance with the provisions contained in Article 162 of the Constitution of India by the government through the order of the Governor. Therefore, by way of policy decision on account of emergent situation, for the existing vacancies, these posts were filled up.
48. Considering the submissions made by the learned counsel appearing for writ petitioners and selected candidates and also the dictum laid down in the judgments, we come to the following conclusions;
(i) it is, no doubt, vacancies cannot be filled up for non-notified posts; but when there is an emergent situation and exceptional circumstances, the posts can be filled up by making policy decision;
(ii) the factual aspects of these matters would show that all the departments of Secretariat were pressing to fill up the huge vacancies prevailed in the post of Assistant Section Officer. Due to shortage of hands in the feeder category posts i.e.Assistant, Senior Personal Clerk, Senior Typist, Non-Graduate Assistant to the post of ASO., it could not be filled up by the method of promotion. Therefore, these posts cannot be construed as 'future vacancies'.
(iii) The Notification itself under Clause 3-B of General Information would show that the vacancies notified is only approximate and is liable to modification and as such, an implied reservation was already made. Before finalisation of selection for oral test or selection for appointment, number of vacancies advertised can be modified by making policy decision;
(iv) Writ petitioners/selected candidates had not applied for any particular post. Since the notification was issued for Combined Subordinate Services, under which 21 categories of posts were notified under Table-I and II, only at the time of sending the call letters, the selected candidates were informed about the availability of 186 vacancies for the post of ASO in the Departments of Secretariat;
(v) selected 186 candidates are the persons, who obtained highest marks among all the candidates. Since they have secured highest marks, they opted for the post of ASO. The candidates, who had obtained marks less than the marks obtained by 186 persons, have joined service as per the Notification dated 15.11.2009. The Government, by relaxing Rule 8 of Special Rules, issued G.O.(4D) No.7. The petitioners have not challenged the said G.O. As observed above, considering the peculiar facts and circumstances, we are of the opinion that no infirmity could be found in filling up the 186 posts of ASO.
49. Mr.AR.L.Sundaresan and Mr.C.Selvaraj, learned senior counsel appearing for the writ petitioners have relied upon umpteen judgments, particularly 1997(4) SCC 283 and 2009(1) SCC 386 (supra) in support of their contention that it is a well settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution of India. But we find that all the judgments relied upon by the writ petitioners do not deal with the situation where the candidates applied for group of posts and not a particular post like in the instant case. Moreover, in those cases, we do not find any emergent or exceptional situation to fill up the vacancies which are not notified. Further more, unlike in this case, no reservation was made in the clause itself to modify the vacancies originally notified. Therefore, the judgments relied upon by the learned senior counsel cannot be made applicable to the facts of the case.
Submissions made to sustain G.O.(4D) No.7 dt.22.03.2010
50. It is the submission of Mr.R.Gandhi and Mr.Vijay Narayan, learned senior counsel appearing on behalf of the selected candidates that if the advertisement contains a variation clauses, the State would be entitled to fill up excess vacancies that have arisen after the issue of advertisement. It is the further submission that non-notification of vacancies shall not be a ground for stalling the appointment to be made or to declare the whole process as illegal. In this regard, they relied on the following decisions and the relevant paragraphs are extracted hereunder:
(2001) 6 SCC 380 (All India SC & ST Employees' Association and another .vs. Arthur Jeen and others) "12. Similarly the contention that the vacancies to be filled up could not be increased to 917 from 330 originally notified without there being subsequent notification is untenable in view of the changed situation as explained above. No fault can be found with the direction of the High Court to issue appointments only to available vacancies on merit out of the candidates included in the panel of selected candidates following rules of reservation and that too reserving 3% seats to Physically Handicapped instead of 2%. 382 vacancies would be available up to March 2002 possibly as of now all the 382 candidates may not be given appointment; the appointments may be given up to 330 or less. Further, the purpose of issuing notification and giving due publicity is to provide opportunity to as many eligible candidates as possible. Employment Notification No. 1 of 1995 was issued on 7-9-1995 and the decision was taken to increase the posts on 17-5-1996, the time gap was hardly 8 months; as many as 58,675 made applications and 32,563 were called for interview. It was quite probable that all candidates eligible and interested including a large number of local candidates, applied for the posts. The time gap of about 8 months between the original notification and the decision to increase posts not being much, it cannot be said that many of the eligible candidates were deprived of applying for the posts looking to the requirements of eligibility. As already stated above, in the changed situation only 382 posts are to be filled up upto March 2002. The selected candidates are to be appointed on the basis of merit following rules of reservation applicable to different categories. The process of selection was long-drawn and the candidates were made to appear for interview twice. The candidates and their families have been waiting for a long time from 1995 with great hope of getting jobs. Enormous money and man-hours have been spent in completing the process of selection in preparing the panel of selected candidates. In this view there was no justification for the Tribunal to quash the entire panel of selected candidates".
(2002) 10 SCC 269 ( Suvidya Yadav and others .vs. State of Haryana andothers):
"4. On 1-6-1993, before the Commission finalised selection and made the recommendation pursuant to the advertisement as referred to earlier, the Finance Commissioner and Secretary, Haryana Government, Education Department, made a fresh requisition to the Secretary, Haryana Public Service Commission indicating the number of vacancies as were available for 1991, which was more than 18. The Commission ultimately, by its letter dated 1-10-1993, recommended the names of 30 persons for the post of Principal. One of the persons who was not selected, filed a writ petition before the High Court contending, inter alia, that the advertisement having been issued for only 18 posts, the Commission committed gross error in recommending names more than 18. This has found favour with the learned Single Judge relying upon the decision of this Court in the case of Hoshiar Singh v. State of Haryana1. The Single Judge therefore allowed the writ application to the extent that selection of persons beyond 18 is bad.
5. The matter was carried in appeal and the Division Bench having affirmed the judgment of the Single Judge dismissed the appeal. That is how the present appeal has been filed. Mr Rao, learned Senior Counsel appearing for the appellant contends that the judgment of this Court on which reliance has been placed has not been properly read and in view of the fact that before recommendation of the Commission fresh requisition had been made by the Government, there was no bar for the Commission in recommending more names than posts for which the advertisement had been issued, more so when the advertisement (sic was subject to) variation to any extent".
51. A reading of the principles laid down in the said decisions would show that the time gap between the original notification and the decision to increase posts not being much, it cannot be said that many of the eligible candidates were deprived of applying for the posts looking to the requirements of eligibility. In the instant case, the time gap between the original notification dated 15.11.2009 and the G.O.(4D) No.7 dated 22.03.2010 is only four months. Therefore, by applying the ratio laid down in the above judgments, we are of the opinion that many of the eligible candidates cannot say that they were deprived of applying for the posts looking to the requirements of eligibility. Hence, on this ground also, the claim of the selected candidates has to be sustained.
52. Locus standi of writ petitioners to challenge the Notification:
It is the submission of the learned senior counsel Mr.Vijay Narayan appearing for the appellant that the writ petitioner Kumaran, who filed W.P.No.6114 of 2011 is only an unemployed graduate and he has not applied for any post pursuant to the Notification and as such, he has no locus standi to challenge the Notification dated 15.11.2009. Similarly, the petitioners in W.P.No.7948 of 2011, who are working as Assistants in Secretariat and they have joined service in June/July 2010 and as such, the present notification is in no way affect their promotion and moreover, they have not chosen to apply for the post under the Notification dated 05.11.2009 for direct recruitment of ASOs.
53. But it is the reply of Mr.AR.L.Sundaresan, learned senior counsel that the writ petition was questioning only the illegality in the process of filling up of 186 posts of ASO and the prayer is only for Mandamus to implement the constitutional mandate. Therefore, since they have not applied for the post of ASO., it does not mean that they are not entitled to question the illegality of selection process. It is his further submission that in the original Notification only 4 posts of ASO were called for in the office of TNPSC and 13 posts of ASO were called for in the Secretariat. Since there were limited number of posts, the writ petitioner has not applied for the said post and had he known that there are 186 vacancies, he would have definitely applied for the same. Therefore, non-applying the post is not material.
54. We are unable to appreciate the submission made by the learned senior counsel since, as already stated above, in the Notification itself, reservation was made to make a Notification with regard to the vacancies originally notified according to the requirement. In such a situation, the submission by the petitioner that on account of limited number of posts, he could not apply, cannot be accepted. Further, we find that when notification was issued for subsequent year also, the writ petitioners did not apply for it. Unless they apply for the post, they do not have any right to challenge the notification.
Effect of non-impleading of the selected candidates:
55. It is the submission of the learned Senior Counsel appearing for the selected candidates that the non-impleading of the parties as party respondents is against the principles of natural justice. Therefore, on this ground alone, the writ petitions are liable to be dismissed, whereas, it is the submission of Mr.AR.L.Sundaresan and Mr.C.Selvaraj, learned Senior Counsel for the writ petitioners that the writ petition was filed in March, 2011 i.e.even before the selection list was released. On that date, the writ petitioners did not know who are the selected candidates. Learned single Judge of this Court has passed an order of status quo in the said writ petitions and subsequently while vacating the same, it was made clear that the selection will be subject to the outcome of the writ petitions. Hence, on the date of filing writ petitions, no right had been accrued on the candidates at the time of filing petitions since the selection list was released much later. Therefore, non-impleading of selected candidates is not fatal to the case.
56. Interview commenced on 10.2.2011 and was over on 28.03.2011. W.P.No.6114 of 2011 was filed by K.Kumaran on 9.3.2011. By the time the writ petition came to be filed, details of 2776 candidates, who were called for interview, was made known. Even then the writ petitioners have not made the selected candidates as parties to the writ petition.
57. We are of the opinion that the consolidated allotment orders for provisional appointment was made on 07.10.2011, much earlier to the disposal of the writ petitions. In the said situation, we are of the opinion that the result of the writ petitions will have a direct bearing on the selected candidates. When that being the position, the writ petitioners ought to have taken steps to implead the selected candidates; but they have failed to do so.
58. In (2010) 12 SCC 204 Public Service Commission .vs. Mamta Bishi, the Supreme Court while dealing with the concept of necessary parties and the effect of non-impleadment of such a party in the matter when the selection process is assailed observed thus:
"9. ..... in AIR 1963 SC 786 - Udit Narain Singh Malpaharia v. Board of Revenue, wherein the Court has explained the distinction between necessary party, proper party and pro forma party and further held that if a person who is likely to suffer from the order of the court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order 1 Rule 9 of the Code of Civil Procedure, 1908 (hereinafter called 'CPC') provides that non-joinder of necessary party be fatal. Undoubtedly, provisions of CPC are not applicable in writ jurisdiction by virtue of the provision of Section 141 CPC but the principles enshrined therein are applicable. (Vide AIR 1965 SC 1153 - Gulabchand Chhotalal Parikh v. State of Gujarat, (1974) 2 SCC 706 - Babubhai Muljibhai Patel v. Nandlal Khodidas Barot and (1987) 1 SCC 5 - Sarguja Transport Service v. STAT."
59. In the prayer in the writ petitions, petitioners have sought for writ of mandamus forbearing the Government and TNPSC from in any manner recruiting and filling up 186 posts of Assistant Section officer in Tamilnadu Secretariat Service under Post Code No.1072. The relief sought for in the writ petitions is likely to affect all those candidates who attended interview and who opted for Assistant Section Officer post in Code 1072. But the writ petitioners have not chosen to implead the persons who are likely to be affected.
60. The principles laid down in (2010) 12 SCC 204 (supra) are squarely applicable to the facts of the case on hand. Hence, we are of the opinion that non-impleading of the selected candidates is against the principles of natural justice they have not been given a reasonable opportunity of being heard. Therefore, we are not inclined to accept the submissions made by the learned senior counsel for the writ petitioners in this regard and on this ground also, the writ petitions are liable to be dismissed.
61. For the reasons stated above, the impugned common order passed by the learned single Judge is set aside and W.A.Nos.486, 487, 502, 675, 676, 1316 and 1317 of 2012 are allowed and W.A.No.807 of 2012 is dismissed; however, there is no order as to costs. Consequently, connected miscellaneous petitions are closed.
Index: Yes. (R.B.I.,J) (R.P.S.,J)
Internet: Yes. 27.09.2012
gl
To
1. The Secretary to Government,
Government of Tamil Nadu,
Personnel and Administrative Reforms Department,
Fort St.George,
Chennai-600 009.
2. The Secretary,
Tamil Nadu Public Service Commission,
Greams Road,
Old Commercial Tax Office Annexure,
Chennai-5.
R.BANUMATHI, J.,
and
R.SUBBIAH, J.,
gl
Pre-delivery Common Judgment in W.A.Nos.486, 487,502,675,676,807, 1316 and 1317 of 2012 27.09.2012