IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05/07/2006
CORAM
THE HON'BLE Mr.JUSTICE ELIPE DHARMA RAO
and
THE HON'BLE Ms.JUSTICE K.SUGUNA
Writ Petition No.5525 of 2000
Writ Petition No.6046 of 2000
Writ Petition No.6503 of 2000
and
Writ Petition No.6504 of 2000
1. The Union of India
rep. by
The Chief Secretary to Government
Chief Secretariat Buildings
Pondicherry.
2. The Deputy Secretary to Government
Department of Personnel and
Administrative Reforms
Chief Secretariat Buildings
Pondicherry. ...Petitioners
-Vs-
1. The Central
Administrative Tribunal
Madras Bench
through its Registrar.
2. P.R.Magimainathan Vincent
L.D.C. Chief Secretariat
Pondicherry.
3. D.Coumarane alias Pragche
4. S. Suresh Pilomine
5. S. Mathiazhagan
6. L. Thirumourougane
7. K. Chandrasekran
8. P. Sumitra
9. R. Pushpanathan
10. R. Venkatakrishnan
11. S. Baskaran
12. G. Ravindran
13. V. Ravisankar.
14. N. Ballassoundary
15. A. Punithamary
16. R. Mounnissamy
17. A.K.Ajay Kumar
18. S. Chadjahan Sheik
19. S. Ravichandran
20. V. Muralidharan
21. A. Mohammed Ismail
22. S. Murugesan
23. M.V.Hiran
24. S. Pouchepanadane
25. P.K.Sujan
26. P. Reddy
27. N. Udayakumar
28. J. Murali
29. P. Devarajan
30. E.N.Anil Goind
31. G. Savoundirarajan
32. Satish
33. J. Devidasan
34. M. Raja
35. K. Arunagirinathan
36. N. Viswanathan
37. A. Narendiran
38. G. Jagannathan
39. G. Jegannathan
40. Mourougannadan Rodin
41. V. Calaiyarasi
42. K.Candane @ Sivaradgane
43. S. Yesvanathaiayah
44. Vincent
45. V. Lakshminarayanan
46. S. Radhakrishnan
47. Soundary
48. A. Ravi
49. M. Danasegaran
50. M. Soubramanian
51. E.Dakshinamurthy ...Respondents.
Petition filed under Article 226 of the Constitution of India praying
for the issuance of a writ of certiorari to call for the records pertaining to
the order passed in O.A.No.180/97 dated 29/12/1999 on the file of Central
Administrative Tribunal, Madras and to quash and dismiss the same.
!For petitioners : Mr.K.K.Shasheedharan
for Mr.T.Murugesan
GP (Pondicherry).
^For respondents : Mr.D.Bharatha Chakravarthy
for RR2 to 7.
Mr.U.Karunakaran
for M/s.G.M.Associates
for R10 to 13,17 to 21,24,26,28,
29,31,32,34 to 42,44 to 50.
W.P.No.6046 of 2000
1. The Union of India
rep. by
The Chief Secretary to Government
Chief Secretariat Buildings
Pondicherry.
2. The Deputy Secretary to Government
Department of Personnel and
Administrative Reforms
Chief Secretariat Buildings
Pondicherry. ...Petitioners
-Vs-
1. The Central Administrative Tribunal
Madras Bench
through its Registrar.
2. V. Padmanabhan
3. P. Sumitra
4. R. Pushpanathan
5. R. Venkatakrishnan
6. S. Baskaran
7. C. Ravindrane
8. V. Ravishankar
9. N. Balassoundary
10. A. Punithamary
11. R. Mounnissamy
12. A.K.Ajaykumar
13. S. Chandran Sheik
14. S. Ravichandran
15. V. Muralidharan
16. Mohammed Ismail
17. S.Murugesan
18. M.V.Hiran
19. S. Pouchepanadane
20. P.K.Sujan
21. P.Radjy
22. N. Udayakumar
23. J.Murali
24. P.Devarajan
25. E.N.Anilgovind
26. G.Soundirarajan
27. S.Satish
28. J.Devidasan
29. M.Raja
30. K.Arunagirinathan
31. N.Viswanathan
32. A.Narendiran
33. S.Muralidharan
34. G.Jagannathan
35. Mourouganandam Redin
36. V.Calaiyarasi
37. K.Candane @ Sivarajdane
38. S.Yesvanathaniyah
39. Vincent
40. V.Lakshminarayanan
41. S.Radhakrishnan
42. M.Mohana Soundary
43. A.Ravi
44. A.Ravi
45. M.Soubramanian
46. E.Dakshinamurthy ...Respondents
Petition filed under Article 226 of the Constitution of India praying
for the issuance of a writ of certiorari to call for the records pertaining to
the order passed in O.A.No.715/97 dated 29/12/1999 on the file of Central
Administrative Tribunal, Madras and to quash and dismiss the same.
For petitioners : Mr.K.K.Shasheedharan
for Mr.T.Murugesan
For respondents : Mr.U.Karunakaran
for M/s.G.M.Associates
for R.R.5-8, 12-16,19,
21,23,24,26,27,29-37,
39,40-45.
W.P.No.6503 of 2000
1. P.K.Sujan
2. P.Radjy
3. J. Murali
4. P.Devarajan
5. G.Savoundirarajan
6. S.Satish
7. M.Raja
8. K.Arunagirinathan
9. A.Narendiran
10. S.Muralidharan
11. G.Jagannathan
12. K.Candane @ Sivaradjane
13. M.Mohana Soundary
14. A.Ravi
15. M.Danasegaran
16. M.Soubramanian
17. V.Lakshminarayanan ...Petitioners
-Vs-
1. The Union of India
rep. by
The Chief Secretary to Government
Chief Secretariat Buildings
Pondicherry.
2. The Deputy Secretary to Government
Department of Personnel and
Administrative Reforms
Chief Secretariat Buildings
Pondicherry.
3. The Registrar
Central Administrative Tribunal
High Court Buildings
Chennai 600 104.
4. P.R.Magimainathan Vincent
5. D.Coumarane alias Pragache
6. P.Suresh Philomin
7. L.Thirumugane
8. K.Chandrasekaran
9. P.Sumitra
10. R.Pushpanathan ...Respondents.
Petition filed under Article 226 of the Constitution of India
praying for the issuance of a writ of certiorari to call for the records
pertaining to the common order dated 29/12/1999 passed in O.A.Nos.180/97,
425/98 and 715/97 by the third respondent on the file of Central
Administrative Tribunal, Madras and to quash the same.
For petitioners : Mr.V.Karunakaran
for M/s.G.M.Mani Associates
For respondents : Mr.K.K.Shashidharan, GP
for R.R.1 and 2.
Mr.S.K.Raghunathan for R.4
W.P.No.6504 of 2000
1. P.K.Sujan
2. P.Radjy
3. J. Murali
4. P.Devarajan
5. G.Savoundirarajan
6. S.Satish
7. M.Raja
8. K.Arunagirinathan
9. A.Narendiran
10. S.Muralidharan
11. G.Jagannathan
12. K.Candane alias Sivaradjane
13. M.Mohana Soundary
14. A.Ravi
15. M.Danasegaran
16. M.Soubramanian
17. V.Lakshminarayanan ...Petitioners
Vs
1. The Union of India
rep. by
The Chief Secretary to Government
Chief Secretariat Buildings
Pondicherry.
2. The Deputy Secretary to Government
Department of Personnel and
Administrative Reforms
Chief Secretariat Buildings
Pondicherry.
3. The Registrar
Central Administrative Tribunal
High Court Buildings
Chennai 600 104.
4. V.Padmanabhan ...Respondents.
Petition filed under Article 226 of the Constitution of India
praying for the issuance of a writ of certiorari to call for the records
pertaining to the common order dated 29/12/1999 passed in O.A.Nos.180/97,
425/98 and 715/97 by the third respondent on the file of Central
Administrative Tribunal, Madras and to quash the same.
For petitioners : Mr.V.Karunakaran
for M/s.G.M.Mani Associates
For respondents : Mr.K.K.Shashidharan, GP
for R.R.1 and 2.
Mr.S.K.Raghunathan for R.4
:COMMON ORDER
(Order of the Court was made by Mr.Justice ELIPE DHARMA RAO).
This common order shall dispose of the above mentioned four
writ petitions as the issue involved in all the writ petitions is one and the
same and common arguments were advanced in all the writ petitions.
2. While W.P. Nos.5525 and 6046 of 2000 were filed by the
Government of Pondicherry, challenging the order dated 29-12-1999 passed by
the Central Administrative Tribunal (in short 'the Tribunal) in O.A. Nos.180
and 715 of 1997, W.P. Nos.6503 and 6504 of 2000 were filed by the aggrieved
original applicants challenging the order dated 29-12 -1999 passed by the
Tribunal in O.A. Nos.180 and 715 of 1997.
3. Facts
, in brief, are: In the year 1994, the Government of
Pondicherry had notified 23 vacancies (21 regular vacancies and 2 vacancies
reserved for ex-servicemen) in the cadre of Upper Division Clerk ( in short
UDC) for being filled up by direct recruitment through a competitive
examination. According to the relevant Recruitment Rules, the method of
recruitment to the post of UDC is 80% by promotion and 20% by direct
recruitment through competitive examination from among the candidates
possessing a degree of a recognised University and from among the Lower
Division Clerks (LDCs) with three years of continuous service. Accordingly,
the Government on 29-4-1994 addressed the Employment Exchange as well as the
Rajya Sainik Board to furnish the list of eligible candidates and eligible
ex-servicemen. On the very same day, the Government also issued an I.D.
Note/Memorandum to all the Secretariat Departments informing the conduct of
competitive examination for direct recruitment to the post of UDCs and called
for applications, through proper channel, from the eligible LDCs to appear for
the competitive examination along with the employment exchange/Rajya Sainik
Board sponsored candidates. The competitive examination was held on 11-8-1996
and the results were announced on 15-11-1996. The Government, by order dated
15-11-1996, prepared a select-list of successful candidates for 44 vacancies.
Challenging the select-list prepared by the Government for 44 vacancies, some
LDCs working in the various departments of the Pondicherry Government have
filed original applications (O.A. Nos.180 of 1997 and 425 of 1998). An
unsuccessful candidate sponsored by the employment exchange has also filed an
original application (O.A. No.715 of 1997) challenging the select list drawn
by the Government of Pondicherry for 44 vacancies. The original applicants
have also challenged the conditions contained in the notification relating to
LDCs with three years of continuous service and in case of ex-servicemen with
15 years of defence service are eligible to appear for the competitive
examination as illegal and against the recruitment rules. The Tribunal, by
the impugned common order, set aside the select list dated 15-11-1996 prepared
by the Government and directed the Government to draw a fresh select-list only
to the extent of the number of vacancies notified, i.e. 23. In so far as the
challenge made to the conditions contained in the notification relating to
LDCs with three years of continuous service and in case of exservicemen with
15 years of defence service are eligible to appear for the competitive
examination, the Tribunal held that the said conditions are not illegal and
arbitrariness. Aggrieved by the common order passed by the Tribunal, the
Government of Pondicherry as well as the aggrieved original applicants have
filed the above writ petitions.
4. Now, in these writ petitions, the learned counsel
appearing for Pondicherry Government submitted that they had relied on the
instructions issued by the Department of Personnel and Administrative Reforms
in their Official Memorandum dated 8/2/1982 in which certain clarifications
were issued as to the procedure to be followed for filling up the vacancies.
5. Learned Government Advocate would further submit that
number of vacancies were computed from the date of notification of the
recruitment process till the announcement of the results of the examination
and the selection panel was drawn up taking up the increase in the number of
vacancies.
6. More over, he relied on the decision of the Supreme Court
reported in 1996 4 SCC 319 (PREM SINGH AND OTHERS Vs. HARYANA STATE
ELECTRICITY BOARD AND OTHERS), wherein it has been held that 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
and the operative portion of the judgment is as follows:-
” …. 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.” (emphasis supplied)
7. He further contended that the petitioner is entitled to
fill up the vacancy which was subsequently arose from the date of notification
due to retirement and such a selection cannot be find fault.
8. Learned counsel further relied upon the decision reported
in 19 98 (5) SCC 269 (BENNY T.D. AND OTHERS Vs. REGISTRAR OF COOPERATIVE
SOCIETIES AND ANOTHER), wherein the Apex Court has held that
“Though the High Court dismissed the writ petition as well as
the writ appeals preferred against the judgment of the learned Single Judge by
coming to the conclusion that there has been violation of SubSection (4) of
Section 80 of the Act and Rule 187 of the Rules, the Registrar had annulled
the resolutions of the Bank appointing persons to the post of Clerk on other
grounds also and since the legality of the order of the Registrar invalidating
the appointment made was challenged in the High Court by filing writ
petitions, it is necessary to examine the other grounds also. A perusal of
the order of the Registrar and the issues framed for consideration would
indicate that the Registrar had also struck down the appointment on two other
grounds, namely, the Bank had appointed staff in excess of the approved
strength and secondly the advertisement was not in accordance wit Circular
Instruction No.18 of 1991 of the Registrar of Co-operative Societies. Coming
to the question as to whether appointment had been made in excess of the staff
strength approved by the Registrar, it appears that apart from the above
statement made by the Registrar in his order no material has been brought on
to the record to support the aforesaid conclusion of the Registrar. Merely
because in the advertisement issued by the Bank the probable number of
vacancies had been indicated to be lesser than the number of persons finally
appointed, one cannot jump to the conclusion that there has been an excess
appointment beyond the staff strength approved by the Registrar. It is well
known that during the time when an advertisement is issued and by the time
when process of selection starts and ultimately appointment orders are issued,
on account of several factors the number of posts may be increased, the
factors being retirement of persons on attaining super annuation, death of
several employees, promotion of the employees to higher posts and for variety
of other grounds. In such contingencies, when appointments are made depending
upon the vacancies available and in excess of the vacancies advertised, it
cannot be said that the appointment has been made in excess of the strength of
the cadre approved. There is neither any allegation nor any material to
sustain the finding of the Registrar that in fact appointment has been made in
excess of the posts approved by the Registrar. The said conclusion,
therefore, must be held to be a conclusion based on no evidence and
accordingly cannot be sustained. (emphasis supplied).
9. On the other hand, the learned counsel for the respondents
relied on two judgments of the Supreme Court reported in 1997 (8) SCC 4 88
(SURENDER SINGH AND OTHERS Vs. STATE OF PUNJAB AND ANOTHER), wherein it has
been held that
“waiting list cannot be used as a perennial source of
recruitment for filling up the vacancies not advertised. The candidates in
the waiting list have no vested right to be appointed except to the limited
extent that when a candidate selected against the existing vacancy does not
join for some reason and the waiting list is still operative. The candidates
included in the waiting list cannot claim appointment on the ground that the
vacancies were not worked out properly.
10. The learned counsel would further rely upon the decision
reported in AIR 1996 SUPREME COURT 976 (ASHOK KUMAR AND OTHERS Vs.
CHAIRMAN, BANKING SERVICE RECRUITMENT BOARD AND OTHERS) wherein, it has been
held that “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. The procedure
adopted, therefore, in appointing the persons kept in the waiting list by the
respective Boards, though the vacancies had arisen subsequently without being
notified for recruitment, is unconstitutional. However, since the
appointments have already been made and none was impleaded, we are not
inclined to interfere with these matters adversely affecting their
appointments.
11. In view of the above, the learned counsel for the
respondents vehemently submitted that if a particular number of vacancies have
been notified, the selection list drawn to the extent of that vacancy will
remain valid till it is exhausted. When the impugned selection list is
tainted by illegality, the question of application of O.M. Dated 8/2/1982
does not apply. There is nothing against the directions of the Central
Government in the impugned order of the Tribunal.
12. Learned counsel appearing for the respondents would
further submit that the decision in BINNI’s CASE 1998 (5) SCC 269 has no
relevance to the case of these respondents, as the same relates to the extent
of reservation. In so far as the selection list drawn for 44 vacancies as
against 21 vacancies notified, it is palpably illegal and against the law
declared by the Supreme Court. By having drawn this selection list double the
vacancies notified including vacancies that arose long after the crucial date
fixed for eligibility, opportunity to persons like these respondents who
become qualified for participating the selection subsequent to 1/7/1994 has
been denied. The Honourable Tribunal has rightly held that the selection list
so prepared should be set aside and confined to the number of notified
vacancies.
13. Considering the facts and circumstances of the case and
after careful perusal of the order passed by the Tribunal, we are of the
opinion that the Tribunal has rightly rejected the challenge made to the
conditions contained in the notification relating to LDCs with three years of
continuous service and in case of ex-servicemen with 15 years of defence
service are eligible to appear for the competitive examination. We entirely
agree with the reasons given by the Tribunal while rejecting the contention of
the original applicants that the criteria of eligibility fixed by the
Government in case of LDCs and the ex-servicemen are illegal and arbitrary.
Therefore, the writ petitions challenging that part of the Tribunal’s order is
dismissed.
14. Now coming to the order passed by the Tribunal setting
aside the select list dated 15-11-1996 and directing the Government to draw a
fresh select list for the notified 23 vacancies, we are of the considered view
that the order passed by the Tribunal is liable to be quashed. Though the
general rule is not to prepare a select list with more number of candidates as
against the number of vacancies notified in the advertisement, but in view of
the aforesaid judgments of the Supreme Court, in rarest of rare cases when the
Government has taken a policy decision to meet the administrative exigencies
and prepared a select list to fill up more number of vacancies than the
notified one, such a select list cannot be interfered with. In t he case on
hand, though the notification was issued in the April, 1994, it took more than
two and a half years to complete the entire selection process in August, 1996,
and in the interregnum, a large number of vacancies arose due to retirement,
etc. and the vacancy as on the date of preparation of the select list
increased to 44 and, therefore, the Government prepared the select list for 44
vacancies from among the successful candidates who
appeared for the competitive examination. It is further stated by the learned
Government Pleader that pursuant to the select list prepared all the 44
candidates have been appointed as UDCs and they are working for more than nine
years. He further submitted that except one private candidate and one LDC,
all the original applicants concerned were promoted as UDCs and, therefore,
they are not aggrieved persons as on date. If at this length of time, the
select list is quashed that would cause serious hardship not only to the
selected candidates but also the administration of the Government. Therefore,
we are of the considered view that the Tribunal completely went wrong in
setting aside the select list and directing the preparation of a fresh select
list. Accordingly, the order of the Tribunal is quashed. The writ petitions
challenging that part of the Tribunal’s order are allowed.
15. In the result, Writ Petition Nos.5525 and 6046 of 2000
are allowed and Writ Petition Nos.6503 and 6504 of 2000 are dismissed. No
costs.
mvs.
1. The Chief Secretary to Government
Union of India
Chief Secretariat Buildings
Pondicherry.
2. The Deputy Secretary to Government
Department of Personnel and
Administrative Reforms
Chief Secretariat Buildings
Pondicherry.
3. The Registrar
Central Administrative Tribunal
High Court Buildings
Chennai 600 104.