Madras High Court
T.Ramesh vs The Secretary To Government on 13 September, 2019
Bench: S.Manikumar, D.Krishnakumar
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.09.2019
CORAM:
THE HON'BLE MR.JUSTICE S.MANIKUMAR
AND
THE HON'BLE MR.JUSTICE D.KRISHNAKUMAR
W.A.No.3197 of 2019
T.Ramesh ... Appellant
vs.
1.The Secretary to Government,
Home (Police IV) Department,
Fort St George, Chennai - 9.
2.The Director General of Police/Chairman
Tamil Nadu Uniformed Services Recruitment
Board, Anna Salai, Chennai - 2.
3.The Director General of Police
Dr Radhakrishnan Salai,
Mylapore, Chennai - 600 004. ... Respondents
Prayer: Writ Appeal is filed under Clause 15 of Letters Patent, against
the order made in W.P.No.22702 of 2009, dated 12.09.2012.
For Appellant : Mr.A.Esakkiappan
For Respondents : Mr.P.S.Sivashanmugasundaram
Special Government Pleader.
http://www.judis.nic.in
2
JUDGMENT
(Judgment of the Court was made by S.MANIKUMAR, J) Instant writ appeal is filed against the order made in W.P.No.22702 of 2009, dated 12.09.2012, by which the writ court following the judgment of the Hon'ble Division Bench in W.A.Nos.1719 to 1739 of 2010 etc. batch., dated 23.12.2010, dismissed the petition.
2. Shorts facts leading to the appeal are that pursuant to the notification issued by the Tamil Nadu Uniformed Services Recruitment Board, the appellant has submitted an application for appointment to the post of Sub Inspector of Police. The appellant appeared for the written test. However, he was not selected. Subsequently, it has come out that there were three wrong questions and the key answers were also wrong. For this reason, writ petitioner has filed W.P.No.22702 of 2009, long after the selection, for the following prayer:-
"To issue a writ of Mandamus, directing the 2nd respondent to add three marks to the petitioner for recruitment of Sub Inspector of Police (Men-open quota) 2006 and further direct the respondents to select and appoint the petitioner as Sub-Inspector of Police under 80% open candidates quota, fix the appropriate place in http://www.judis.nic.in the selection, grant all consequential service, monetary 3 benefits and grant such other further relief."
3. After hearing the learned counsel for the parties, vide order dated 12.09.2012 in W.P.No.22702 of 2009, Writ Court has passed the following order:-
"3.The issue raised by the petitioner is covered by the judgment of the Division Bench dated 23 December 2010 in W.A.No.1719 to 1739 of 2010 etc. batch. The Division Bench was pleased to dismiss the writ petitions filed by similarly placed persons on the ground of laches. In view of the binding judgment of the Division Bench, I am of the view that no relief could be granted to the petitioner.
4. Accordingly, by following the judgment of the Division Bench dated 23 December 2010 in W.A.Nos.1719 to 1739 of 2010 etc. batch., the writ petition is dismissed. Consequently, the connected MP is Closed. No costs."
4. Being aggrieved by the same, instant writ appeal is filed on the following grounds:-
"(i) Writ Court has erred in dismissing the writ petition without considering the proper perspective http://www.judis.nic.in the several contentions raised by the appellant/writ 4 petitioner.
(ii) Writ Court has erred in holding without any basis, similar issue decided by the Division Bench of this Court and the same was dismissed on the ground that latches in W.A.Nos.1719 to 1739 of 2010, dated 23.12.2010 etc. Against which the aggrieved in W.A.Nos.1719 of 1739 of 2010 persons preferred an appeal before the Hon'ble Supreme Court in SLP also pending as on date in SLP (C) Nos.36358 to 36391 of 2011.
(iii) Further, the said issue has been pending before the Hon'ble Supreme Court and the appellant also filed an application for permission to file SLP before the Hon'ble Supreme Court and the said application was dismissed on 04.03.2013. But the other cases in SLP (C) Nos.36358 to 36391 of 2011, is pending before the Hon'ble Supreme Court and if any order passed and the same order will be applicable to the appellant.
(iv) Writ Court has erroneously passed an order of dismissal on the ground that laches. Moreover, all the persons are preferred an appeal before the Hon'ble Supreme Court, therefore the dismissal of W.P.No.22702 of 2009, dated 12.09.2012, is liable to set aside."
http://www.judis.nic.in 5
5. Heard the learned counsel for the parties and perused the materials available on record.
6. Vide order made in W.A.Nos.1719 to 1739 of 2010 etc. batch, dated 23.12.2010, a Hon'ble Division Bench of this Court, has passed the following order:-
17. Heard the rival contentions and perused the records.
The case can be divided into two.
1) Case of 23 candidates, who were parties to the earlier proceedings.
2) Case of other writ petitioners, who approached the court for the first time.
"PETITIONERS WHO WERE PARTIES TO THE EARLIER PROCEEDINGS"
18. The case of those who were parties to the earlier proceedings is resisted on the ground of constructive resjudicata by the government relying upon the Apex Court judgements in Dadu Dayalu Mahasabha, Jaipur (Trust) vs. Mahant Ram Niwas and another reported in 2008 (11) SCC 753 in Heena Kausar vs. Competent Authority reported in 2008 (14) SCC 724. However the Hon'ble Supreme Court in the Workmen of Cochin Port Trust vs. The Board of Trustees of Cochin Fort Trust and another reported in AIR 1978 SC 1283 held that the technical rule of resjudicata, although a wholesome rule based on public policy, cannot be stretched too far to bar the trial of identical issues in separate proceedings merely on an uncertain assumption that the issues must have been decided. In Hope Plaintations Ltd. vs. Taluk Land Board reported in (1999) 5 SCC 590 it was held that the parties may not be bound by the determination earlier, if there is fresh cause of action, or continuous cause of action or law is changed or differently interpreted. In the case on hand in the earlier proceedings "Wrong Key answers" were not raised specifically and decided. Therefore http://www.judis.nic.in the learned Judge correctly held that "Constructive Rejudicata" cannot be 6 applied as the correctness of key answer was not specifically raised and decided in the earlier proceedings and only based on RTI query, the petitioners came to know about the details of the key answers. Therefore we respectfully agree with the said conclusion. In any event, the learned Advocate General tacitly conceded that resjudicata would not attract in respect of those 23 candidates, who approached the court earlier. He produced a list of 23 candidates, whose papers were re-valued and out of revaluation 10 persons are eligible to be appointed. The list of candidates are given below:
"SUB INSPECTOR OF POLICE-2006
1.Eswaramoorthy--BC
2.Hemanth Kumar--BC
3.Rethina Kumar--MBC
4.Shanmugam--SC
5.Thiruvengadam--MBC
6.Hari Krishnan--BC
7.Vijayakumar--BC
8.M.Mariappan--BC
9.M.A.Kamal Mohan--SC
10.T.Vannavamalai--MBC"
Therefore, based on the above 10 candidates who got qualified are directed to be appointed after complying with formalities.
"THE CANDIDATES THOSE WHO APPROACHED THE COURT FOR THE FIRST TIME"
19. They were not parties to the earlier proceedings. Therefore the question of resjudicata does not arise. The only point to be decided is as to whether the candidates could be granted relief, in view of delay on their part to approach the court seeking remedy.
20. It is seen that the notification was issued on 19.7.2006 for selection of candidates for the post of Sub-Inspectors of Police and the vacancies sought to be filled up was as on 31.12.2004; results were announced on 17.7.2007; Earlier proceedings attained finality by order dated 28.3.2008. Subsequently only the applications were filed under RTI Act seeking details regarding key answers. Meanwhile, the first batch of selected candidates were sent for training in January, 2008 and the second batch in June, 2008. The entire process of selection was over and the rights got accrued to the selected candidates. On 30.1.2009, the second http://www.judis.nic.in respondent board wrote a letter to the first respondent about the wrong 7 key answers given for question No.44 and further informed that 145 candidates were eligible for selection based on awarding of extra marks to the said question No.44 and that they could be accommodated. The said proposal was rejected by the government by letter dated 22.5.2009. It was admitted before the learned Single Judge that the key answers for three questions namely 11,38 and 44 were wrong and there was a mistake in awarding of marks for the said question.
21. Though it was admitted by the Government that wrong key answers were given for three questions, this court has to see whether the said act is a deliberate one warranting interference by this court. Para-8 the communication dated 30.1.2009 written by the second respondent board to the first respondent reads as follows:
"8. Regarding the key for Question No.44, it is submitted that because of the previous leakage of question papers abundant precautions were taken by the Recruitment Board in setting up of the question paper. Three set of question papers along with keys were obtained from three senior IPS Officers whose integrity/record was impeachable. Later the Chairman picked up one of the question papers which was sent to Tamil Nadu Public Service Commission for printing. The question paper was opened only in the Printing Press where it was printed. The Board never verified either the question paper or the key. The Board members saw the question paper only after the examination was over. This was done as an abundant precaution to prevent the leakage of the Board."
22. The aforesaid communication would prove that only to avoid leakage of question papers, the question and answers were not verified. It was done only in the interest of public to maintain secrecy regarding the questions, Considering earlier instances of leakage of question papers. Hence it is evident that there is no deliberate act on the part of the board to give wrong key answers and it was only a bonafide mistake and unintentional. Therefore, this court agrees with the submission of the learned Advocate General in this regard.
"FRAUD AND SUPPRESSION OF MATERIAL FACTS"
23. It is seen from the files produced that only after the candidates started applying under RTI Act in June, 2008, the board started http://www.judis.nic.in 8 to verify the correctness of the key answers writing to the University of Madras. The process of verification undertaken by the second respondent was also given by way of RTI reply dated 31.3.2009. For question No.44, the correct answer "Mount Batten" was received from the University by letter dated 22.12.2008. As far as question No.38 is concerned, the board wrote a letter to Madras Medical College on 3.4.2009 and a reply was obtained on 15.4.2000. As far as question No.11 is concerned, the correct answer was "D" which was also obtained from the experts. The said exercise was done till 26.5.2009. After verification only, the board came to know the wrong key answers in May, 2009. The correct details about the wrong key answers were given by RTI reply dated 4.8.2009 to the petitioners. In the above circumstances, there was no possibility of having information regarding correct key answers by the respondents themselves and consequently informing the same before the Court in the earlier proceedings in 2007. Therefore there was no deliberate suppression of material facts by the government.
24. Though it is seen as serious lapse and failure of duty on the part of the government, it can not be said deliberate act. Equally it cannot be said that the government is taking advantage of its own wrong. There was no necessity for the respondents to deliberately frame wrong key answers.
25. There is no dispute that "fraud vitiates even solemn proceedings". The Apex Court in detail discussed about "Fraud" in State of Orissa and others vs. Harapriya Bisoi reported in 2009 (12) SCC 378 and para 40 is extracted as follows:
"40. It is necessary to consider the effect of fraud.
"29. By 'fraud' is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from the ill will towards the other is immaterial. The expression 'fraud' involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable, or of money and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non- http://www.judis.nic.in 9 economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. [See Vimla (Dr.) v. Delhi Admn.4 and Indian Bank v. Satyam Fibres (India) (P) Ltd.5]
30. A 'fraud' is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. (See S.P. Chengalvaraya Naidu v. Jagannath6.)
31. 'Fraud' as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury enures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. (See Ram Chandra Singh v. Savitri Devi7.)
32. 'Fraud' and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Comus, who exulted in his ability to 'wing me into the easy-hearted man and trap him into snares'. It has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary, 'fraud' in equity has been http://www.judis.nic.in 10 defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Legal Dictionary, 'fraud' is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Indian Contract Act, 1872 defines 'fraud' as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise, fraud arises out of deliberate active role of the representator about a fact, which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of a fact with knowledge that it was false. In a leading English case i.e. Derry v. Peek what constitutes 'fraud' was described thus: (AC p. 374) "fraud" is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false.' But 'fraud' in public law is not the same as 'fraud' in private law. Nor can the ingredients, which establish 'fraud' in commercial transaction, be of assistance in determining fraud in administrative law. It has been aptly observed by Lord Bridge in Khawaja v. Secy. of State for Home Deptt., that it is dangerous to introduce maxims of common law as to effect of fraud while determining fraud in relation to statutory law. 'Fraud' in relation to statute must be a colourable transaction to evade the provisions of a statute.
'20. ... "If a statute has been passed for some one particular http://www.judis.nic.in 11 purpose, a court of law will not countenance any attempt which may be made to extend the operation of the Act to something else which is quite foreign to its object and beyond its scope." Present day concept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations. The colour of fraud in public law or administrative law, as it is developing, is assuming different shades. It arises from a deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction which otherwise would not have been exercised. The misrepresentation must be in relation to the conditions provided in a section on existence or non-existence of which power can be exercised. But non-disclosure of a fact not required by a statute to be disclosed may not amount to fraud. Even in commercial transactions non-disclosure of every fact does not vitiate the agreement. "In a contract every person must look for himself and ensures that he acquires the information necessary to avoid bad bargain." In public law the duty is not to deceive.' (See Shrisht Dhawan v. Shaw Bros.10, SCC p. 554, para 20.)
33. In that case it was observed as follows: (Shrisht case, SCC p. 553, para 20) '20. Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Comus, who exulted in his ability to, 'wing me into the easy- hearted man and trap him into snares'. It has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary fraud in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Legal Dictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false http://www.judis.nic.in 12 or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Contract Act defines fraud as an act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it was false. In a leading English case Derry v. Peek8 what constitutes fraud was described thus: (All Er p. 22 B-C) (AC p. 374) "Fraud is proved when it is shown that a false representation has been made
(i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false."
34. This aspect of the matter has been considered by this Court in Roshan Deen v. Preeti Lal, Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education12, Ram Chandra Singh case7 and Ashok Leyland Ltd. v. State of T.N.
35. Suppression of a material document would also amount to a fraud on the court. (See Gowrishankar v. Joshi Amba Shankar Family Trust and S.P. Chengalvaraya Naidu case.)
36. 'Fraud' is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud; as observed in Ram Preeti Yadav case212.
37. In Lazarus Estates Ltd. v. Beasley, Lord Denning observed at QB p. 712:
'No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.' In the same judgment Lord Parker, L.J. observed that fraud vitiates all http://www.judis.nic.in 13 transactions known to the law of however high a degree of solemnity."
This court already concluded that there was no suppression of material facts by the Government and consequently it has to be held that there was no fraud committed by the Government. Moreover, the government is not gained/benefited out of the alleged suppression or fraud. Therefore the judgement of the Apex Court in Meghmala & others vs. G.Narasimha Reddy rendered in SLP (C) Nos.14447-14448 of 2007 and in S.P.Chengalvaraya Naidu (Decd) by Lrs vs. Jagannath (Decd) by Lrs and others reported in 1994 (1) SCC 1 relied on by the petitioners based on fraud/suppression of material facts are not applicable to the facts of the case. Even otherwise there is no plea of "fraud" by the petitioners.
DELAY/LACHES
26. As far as the delay is concerned, as stated earlier for the vacancies as on 31.12.2004, notification was issued on 19.7.2006 for recruitment. Examination was conducted on 20.5.2007. Results were published on 17.7.2007 and final selection list was published on 20.12.2007. First batch of candidates were sent for training in January, 2008 and second batch of candidates were sent in June, 2008 and the selection process was already over. Earlier writ proceedings initiated challenging the selection were dismissed by the learned Single Judge on 20.12.2007 and by the Division Bench on 28.3.2008 and by Apex Court on 28.10.2008. Subsequently the petitioners started applying under RTI Act to get details of the examination. The petitioners cannot take advantage of their delayed query under RTI Act in June 2008. There was no prohibition for the petitioners to apply and they could have made the exercise even at the earliest point of time. Delayed RTI application cannot give them cause of action for filing the above writ petitions. If the contention of the petitioners in this regard is to be accepted, there will not be any finality to the selection process and it will b e against public interest.
27. As stated earlier, there was a considerable long delay on the part of the petitioners even for applying under RTI Act which enabled them to file the writ petitions from March, 2009 onwards before this court. Petitioners are required to approach this court without any delay and it is well settled law that delay defeats the rights. The entire process was http://www.judis.nic.in 14 already over and the selected candidates already were appointed. Apart from that, another recruitment for the post of Sub-Inspector was made in 2010 and it is informed that about 1091 + 4 candidates were provisionally selected. In P.C.Sethi and others vs. UOI reported in AIR 1975 SC 2164, it was held that petitions could not be dismissed on the ground of delay, as there were hopes given by the government to the petitioners therein and believing the same they did not approach the court in time. Therefore the facts of the case are different. In State of Karnataka vs. Y.Moideen Kunhi (Dead) by L.Rs & others reported in 2009 AIR SCW 4491 and in Collector Land Acquisition Anntnag and another vs. Mst. Katiji and others reported in 1987 (1) LLJ 500 SC, the point for consideration was condonation of delay in Land Acuisition proceedings and therefore they are not useful to the petitioners. However, in Solochana Chandrakand Galande vs. Pune Municipal Transport and others reported in 2010 (8) SCC 467, it has been held that those who approached the court belatedly, could not be permitted to get the same benefits when similarly placed diligent people got the benefits. The Hon'ble Supreme Court in P.S.Sathasivasamy vs. State of Tamil Nadu reported in AIR 1974 SC 2271 dealt with a service matter in which promotion was challenged and held that a person aggrieved by the promotion of his juniors should approach within or in a year. It was further held that it would be a sound and wise exercise of discretion for the courts to refuse to exercise their extraordinary power under Article 226 of the Constitution of India, in the case of persons who do not approach it expeditiously for the relief and who stand by allow things to happen and then approach the court to put forward stale the claim and try to unsettle settled matters. In State of Orissa and others vs. Prajaparamita Samanja and others reported in 1996 7 SCC 106 it was held that only those who are diligent and approach the court in time can be given relief. Therefore discretionary relief sought for belatedly by the petitioners under Article 226 cannot be granted on the ground of delay.
28. It is true that when the government is at fault, it should not stand on plea of limitation or technicality as held by Apex Court in S.R.Bhanrale vs. UOI and others reported in 1997 (1) All India Services Law Journal 14(SC). As rightly pointed out by the learned counsel for the http://www.judis.nic.in 15 petitioners, there is no dispute with regard to powers of this court under Article 226 to render complete justice beyond technicalities and the same is recognised in Collector Land Acquisition Antnag and others vs. Mst.Katiji and others reported in 1987 1 LLJ 500 SC, Dwarthnath vs. I.T. Officer reported in 1996 SCC 1981, Union of India and others vs. R.Reddappa and another reported in 1993 4 SCC 269, V.C.Chatruvedi vs. Union of India reported in 1995 6 SCC 749, Air India Statutory Corporation vs. United Labour Union reported in AIR 1977 SCC 645. Similarly this court has power to order revaluation in case of irregularities/malpractice and is recognised in Abhijitsen vs. State of U.P. AIR 1994 SC 1402, C.Thulasipriya vs. State A.P.counsel Higher Education reported in AIR 1999 SC 199. However the delay in this case is too long. The paper valuation done in 2007 has been challenged in 2009. It is found in this case that the mistake occurred was bonafide and not deliberate one. Therefore the directions given by the learned single judge to add marks for wrong key answers to the non- selected candidates and consider them for selection at this distance of time are not warranted and therefore they are set aside.
29. As found in the impugned order that letter dated 30.1.2009 itself would show that the second respondent did not verify the answers even after the examination. This court found that there was bonafide mistake committed in setting key answers, and the verification was not done only to prevent leakage of question papers. If any direction is to be issued, it would certainly un-settle the selection process which was already completed, and it would give room for many claims from various parties making the issue very complicated. At this point of time, if the directions of the learned single judge are given effect, more candidates would possibly be eligible for appointment, and it would compel the government to make appointments more than advertised and it would be against settled position of law. In Union of India vs. Easwersingh Khatri reported in 1992 Suppl. 3 SCC 84. Gujarat Deputy Executive Engineer Association vs. State of Gujarat reported in 1994 Supp. SCC 591, Kamaleshkumar Sharma vs. Yogeshkumar Gupta reported in AIR 1998 SCC 1021 and State of U.P. And others vs. Rajkumar Sharma and others reported in 2006 (3) SCC 330 it has been held that filling up vacancies over and above the number of vacancies advertised http://www.judis.nic.in 16 could be violative of fundamental rights guaranteed under Article 14 and 16 of Constitution of India. Therefore the directions (i) to (v) given para 24 of the impugned order are set aside.
"FENCE SITTERS"
30) No doubt the petitioners had legitimate expectation about the selection and they are also not responsible for the problem. However, the petitioner approached the Court only in 2009 for the first time. The Hon'ble Supreme Court in Shiba Shankar Mohapatra and Ors vs. State of Orissa and Ors. Reported in AIR 2010 SC 706 held as follows:
"28 It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the Court is guilty of delay and the latches. The Court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallises in the interregnum.(vide Aflatoon and Ors. v. Lt.Governor, Delhi and Ors. MANU/SC/0437/1974: AIR 1974 SC 2077; State of Mysore v. V.K.Kangan and Ors. MANU/SC/0429/1975: AIR 197 SC 2190; Municipal Council, Ahmednagar and Anr. v. Shah Hyder Beig and Ors. MANU/SC/0022/2000; AIR 2000 SC 671; Inder Jit Gupta v. Union of India and Ors. MANU/SC/0447/2001; (2001) 6 SCC 637; Shiv Dass v. Union of India and Ors. MANU/SC/7032/2007; AIR 2007 SC 1330; Regional Manager, A.P.SRTC v. N.Satyanarayana and Ors. MANU/SC/8097/2007; (2008) 1 SCC 210 and City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala and Ors. MANU/SC/8l250/2008; (2009) 1 SCC 168)". (emphasis supplied).
Hence the petitioners who approached the court for the first time are definitely "fence sitters". In view of that the writ petitions filed by those petitioners who approached the court for the first time in 2009 are dismissed on the ground of delay.
31. As far as writ petitioner in W.P.No.9181 of 2009 (W.A.No.1739 of 2010) is concerned, he was already selected and was appointed as Sub-Inspector of Police(Armed Reserve). In view of the wrong http://www.judis.nic.in 17 key answers, he sought for additional marks. Therefore he gave representation only on 9.4.2009 to award two additional marks and to post him as Sub-Inspector of Police(Taluk). It is seen that he was selected on 19.12.2007 and sent for training on 18.1.2008 as Sub-Inspector of Police (Armed Reserve) on 28.4.2008. Subsequently he gave a representation only on 9.4.2009. Hence the said representation is directed to be considered by the respondents based on merits as per law. The appeal is allowed and the writ petition is disposed with the above direction the writ petition is disposed.
32. In fine,
1) The appeals filed by the government are allowed setting aside the directions given in the impugned order in para 24(i) to (iv) except para 25(vi) & (vii).
2) As far as 23 old candidates are concerned, as stated above, the list provided by the Advocate General would disclose that revaluation was done and out of 23 candidates 10 candidates are found to be eligible for appointment. Accordingly,they are directed to be appointed subject to usual formalities.
3) W.A.No.1739 of 2010 is also allowed with a direction to dispose of the petitioner's representation dated 9.4.2009. Appeals are allowed as stated above. No costs.
33. However, it is seen that the litigations are due to mistakes committed during setting up question paper. The petitioners are not responsible for wrong key answers. Though this court found the mistake/wrong committed was unintentional and bonafide, the second respondent has to bear in mind that it is conducting exams to recruit persons for uniformed services. Any irregularity in the process of selection would affect morale of the force and interest of the public. In future the second respondent board should be very seriously and carefully and responsibly conduct exams without giving any room for challenge. In this regard, the learned judge issued general guide lines to be followed in future in para 25 vi. Vii of the impugned order and the same are confirmed."
http://www.judis.nic.in 18
7. The Hon'ble Supreme Court in SLP (C) Nos.36358 to 36391 of 2011, dated 19.01.2015, has passed the following order:-
"Delay condoned.
No ground for interference is made out in exercise of jurisdiction under Article 136 of the Constitution of India.
The special leave petitions are accordingly
dismissed."
8. In the light of the above decisions of this Court, confirmed by the Hon'ble Supreme Court, there is no merit in the instant writ appeal and the same is dismissed. No Costs.
(S.M.K., J.) (D.K.K., J.) 13.09.2019 Index: No Internet: Yes/No dm http://www.judis.nic.in 19 To
1.The Secretary to Government, Home (Police IV) Department, Fort St George, Chennai - 9.
2.The Director General of Police/Chairman Tamil Nadu Uniformed Services Recruitment Board, Anna Salai, Chennai - 2.
3.The Director General of Police Dr Radhakrishnan Salai, Mylapore, Chennai - 600 004.
http://www.judis.nic.in 20 S.MANIKUMAR,J.
AND D.KRISHNAKUMAR, J.
dm W.A.No.3197 of 2019 13.09.2019 http://www.judis.nic.in