BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 17/08/2011
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
W.P.(MD) No.8877 of 2011
and
M.P.(MD).No.1 of 2011
N.Kanthimathi ... Petitioner
Vs.
1.The Secretary to Government,
Hindu Religious and Charitable
Endowments Administration
Department, Secretariat,
Fort St. George, Chennai - 600 009.
2.The Commissioner,
Hindu Religious and Charitable
Endowments Administration
Department, Nungambakkam,
Chennai - 600 034.
3.The Secretary,
Tamil Nadu Public Service
Commission, NO.1, Greams
Road, (Commercial Tax Building
Annexe), Chennai - 600 006. ... Respondents
Petitions filed under Article 226 of the Constitution of India praying for
a Writ of Mandamus, to direct the third respondent to select the petitioner to
the post of Executive Officer Grade IV in Tamil Nadu Hindu Religious and
Charitable Endowments Administration Department by operating the reserve list
2008-2009 and consequently, direct the respondents 1 & 2 to appoint the
petitioner to the post of Executive Officer Grade IV in the Tamil Nadu Hindu
Religious and Charitable Endowments Administration Department in the Tamil Nadu
Hindu Religious and Charitable Endowments Subordinate Service included in Group
VIII Service, 2008-2009.
!For petitioner .. Mr.T.Selvan
^For respondents 1 and 2 .. Mr.B.Pugalenthi,
Special Government Pleader
For 3rd respondent .. Mr.S.P.Maharajan
:ORDER
Mandamus sought for in this writ petition is for a direction to the
Secretary, Tamil Nadu Public Service Commission, Chennai, to select the
petitioner for the post of Executive Officer Grade IV in Tamil Nadu Hindu
Religious and Charitable Endowments Administration Department by operating the
reserve list and for a consequential direction, directing the respondents 1 & 2
to appoint the petitioner to the said post.
2.It is the case of the petitioner that pursuant to the notification for
filling up of 47 vacancies of the Executive Officers Grade-IV posts in Tamil
Nadu Hindu Religious and Charitable Endowments Administration Department, for
the year 2008-2009, the petitioner completed two stages of selection viz.,
written examination and oral test, successfully with registration No.02602095. A
provisional list was published on 02.06.2010, wherein 40 candidates were
selected and results of seven candidates were withheld. Though the petitioner
was not included in the list of selected candidates, she was placed in the
reserved list, at serial No.1 in three categories viz., General Turn (Women),
Backward Class (other than BC Muslims) (Women) & Backward Class (other than BC
Muslim) (DW).
3.According to the petitioner, the candidates placed in the reserve list
would be considered for selection against the vacancies caused in the respective
categories, due to any one of the following reasons; (i) Non joining of
selected candidates; (ii) selected candidates who joined duty, but left
thereafter; (iii) cancellation of provisional selection of the selected
candidates. It is her further submission that the reserved list, which is
prepared by the Tamil Nadu Public Service Commission, would be valid till the
drawal of the next selection list for the said post, by the Commission. It is
her further contention that when she sought for the following informations under
the Right to Information Act, (i) as to how many candidates were selected for
the post; (ii)as to how many persons left, after joining the post; (iii) as to
how many post are vacant subsequently; and (iv) as to the position of the
petitioner, reply was given by the Commissioner to the petitioner that ten posts
are vacant due to non joining, by the selected candidates. The petitioner,
after receiving the information under the Right to Information Act, made a
representation, dated 01.07.2011, to the Tamil Nadu Public Service Commission,
to select and appoint her, to the post of the Executive Officer (Grade IV) by
operating the reserve list of the Tamil Nadu Hindu Religious and Charitable
Endowments Subordinate Service, conducted for the year 2008-2009. It is her
further contention that the Commissioner, Hindu Religious and Charitable
Endowments Administration Department, Chennai, the second respondent herein, by
his proceedings, dated 19.07.2011, has also informed the petitioner about the
vacancies, in each category. According to the petitioner, since her name
figures at serial No.1 in three categories viz., General Turn (Women), Backward
Class (other than BC Muslims) (Women) & Backward Class (other than BC Muslim)
(DW), she is eligible to be accommodated as against the vacancies. Though
several representations have been made to the Commission, no steps have been
taken to operate the reserve list as per the regulations. Hence, the petitioner
has come forward with the present writ petition, for the relief stated supra.
4.When the matter came up for hearing, on instructions from the Under
Secretary, Tamil Nadu Public Service Commission, Mr.S.P.Maharajan, learned
counsel submitted that in the examination conducted by the Commission for
recruitment to the post of Executive Officer, Group IV, in the Tamil Nadu Hindu
Religious and Charitable Endowment Administration Department, in Tamil Nadu
Hindu Religious and Charitable Endowments Subordinate Service, for the year
2008-2009, the petitioner did not reach the zone of consideration for the above
said post. However, she was placed in the reserve list against serial No.1 in
three categories viz., General Turn (Women), Backward Class (other than BC
Muslims) (Women) & Backward Class (other than BC Muslim) (DW), drawn from the
above recruitment. He further submitted that necessary action is being taken to
allot suitable candidates from the reserve list and the relevant file has been
submitted to the Commission, for its order in the matter. The submission of the
learned counsel for the Tamil Nadu Public Service Commission, based on the
letter No.4321/LCD-C1/2011, dated nil.08.2011, is placed on record.
5.Heard the learned counsel for the parties and perused the materials
available on record.
6.As the commission itself has now admitted that the petitioner has been
placed in the reserve list against serial No.1 in General Turn (Women),
Backward Class (other than BC Muslims) (Women) & Backward Class (other than BC
Muslim) (DW), categories, this Court deems it fit not to refer to the other
details, stated supra. Suffice to consider as to whether the petitioner has
made out a case for issuance of mandamus.
7.The contention of the petitioner that there are ten vacancies in the
post of Executive Officer (Grade IV) is fortified by the proceedings in
R.C.No.34114/10/L4/dated 10.01.2011, addressed to the Secretary to Tamil Nadu
Public Service Commission, wherein the Commissioner, Hindu Religious and
Charitable Endowment Department, Chennai, has requested the Tamil Nadu Public
Service Commission to allot suitable candidates for the post of Grade IV,
Executive Officer in the Tamil Nadu Hindu Religious and Charitable Endowments
Subordinate Service, for the year 2008-2009. Perusal of the letter,
dated 10.01.2011, shows that in the examination conducted by the Commission,
some of them, who had been selected for Grade IV, Executive Officer posts, were
also selected for Grade III posts and that they have joined in Grade III posts
and consequently, there are ten vacancies in Grade IV, in various communal
categories. The details of the vacancies in the communal categories mentioned
in the letter, dated 10.01.2011, of the Commissioner of the Hindu Religious and
Charitable Endowments Department, are as follows;
S. Rotation Round Name Date of Birth The date of No. Thiru/Tmt./ Selvi and Educational joining in Grade III qualification Executive Officer post in the department 1 2nd round SC (A) M.Sudha 16.5.83 1.7.10 FN (W) (DW) B.A. 2 3rd round MBC/DC M.Maadu 15.4.74 1.7.10 FN B.Sc. 3 13th round MBC/DC P.Sivaraj 2.6.83 1.7.10 FN B.Com., 4 16th round SC G.Prakash 25.2.83 1.7.10 FN B.A., M.A., M.L., 5 18th round BC (OBCM)M.Banumathi 2.10.81 1.7.10 FN (W) M.Sc., B.Sc. 6 19th round GT (W) P.Janaki 16.7.81 1.7.10 FN M.Sc., B.Sc. 7 24th round BC (OBCM)T.Maruthachalam 10.4.76 1.7.10 FN M.Com., B.Com., 8 34th round BC (OBCM)K.Bharathiraja 19.3.1981 1.7.10 FN M.L., 9 42th round SC G.Kaniraj 11.6.79 1.7.10 FN M.L., 10 43rd round MBC/DE(W)M.Amirtha 3.5.79 1.7.10 FN BPT., MA.,
8.While forwarding the above said details, the Commissioner, Hindu
Religious and Charitable Endowment, Chennai, has also requested the Tamil Nadu
Public Service Commission, to delete the above said persons from the list of
selected candidates for the post of Grade IV Executive Officers, and
consequently, select persons from the reserve list and forward the same. Women
vacancies are also mentioned in the letter, dated 10.01.2011, in General Turn
(Women) and Backward Class (other than BC Muslim) (Women). In such
circumstances, when a request has been made by the appointing authority, it is
obligatory on the part of the Commission to forward the names from the reserve
list.
9.In Secretary, T.N.P.S.C., v. R.Nagarajan reported in 2008 (6) MLJ 1259
(Mad-NOC) = 2008 (3) LW 222 and Dr.D.Karal v. State of T.N., reported in 2009
(1) MLJ 1259. In R.Nagarajan’s case (stated supra), TNPSC has invited
applications for the post of Additional Public Prosecutor. Respondents therein
were placed in the reserve list. When three candidates joined and subsequently
left, the question came up for consideration before the learned Single Judge,
was whether the persons in the reserve list should be appointed. The learned
single Judge has directed the State and TNPSC to appoint the petitioners therein
in the reserve list for those vacancies. The State did not appeal, but TNPSC
appealed. The Division Bench, after considering the submissions made on either
side, held that,
“Though Rule 10(a)(i) of the T.N. State and Subordinate Service Rules,
provides for allotment from the reserve list for the vacancy in the place of
those who have not joined duty, it cannot be strictly interpreted so as to
exclude resultant vacancies caused due to candidates joined and subsequently
left/resigned. No doubt a candidate has indefeasible right to be appointed to
the post, but when the petitioners had been placed in the reserve list, it is a
fallacy to claim that they cannot be appointed in the resultant vacancies. If
the stand taken by the Commission is to be accepted, the expression “such
reserve list will be in force…… until the drawal of next selected list by
the Commission” would defeat the intention of the legislature. A meaningful
interpretation of the rule would subserve the interest of the public. The
subsequent amendment to the rule would also confirm this interpretation. The
Appointing Authority, the State has not preferred any appeal but the Service
Commission has. The duty of the Public Service Commission is only to make
available to the State a complete list of qualified candidates arranged in order
of merit. It is for the State to make appointments accordingly.”
10.In Dr.D.Karal’s case (cited supra), the question came up for
consideration again was that whether the waiting list/reserve list candidates
are having any right to demand posting, if the selected candidates failed to
join duty for any reason. In the above case, selection was made for the post of
Assistant Surgeon (Dental) for the year 2003-05. Out of 39 vacancies notified,
14 vacancies were not filled up, on account of non-joining of candidates within
the prescribed period of 30 days. A fresh advertisement for selection of
Assistant Surgeon (Dental) was made on 05.04.2007, for 16 vacancies. The fresh
advertisement was challenged by the writ petitioner therein, contending inter
alia that when the reserve list was drawn, the same ought to have been operated
by TNPSC. Per contra, the Commission by filing a counter affidavit, contended
that mere inclusion in the reserve list would not confer any right to the
selected candidates for appointment to the posts and the reserve list could be
operated until the drawal of regular list. Considering the rival submissions,
the learned single Judge, at Paragraph 9, held as follows:
“9. The learned counsels appearing for the respondents are also not
justified in contending that merely because the petitioner’s names were included
in the reserve list, the same will not confer any right to them. It is an
admitted fact that the petitioners are placed in the reserve/waiting list. As
per the statutory proviso to Rule 10(a)(i) of the State and Subordinate Service
Rules, the reserve list candidates have a right to get appointed, if the
selected candidates failed to join duty in time by one reason or the other. The
rights of the reserve list candidates get crystalised the moment the last date
for reporting to duty of the selected candidates are deemed to be selected in
the resultant vacancies by operation of law and as such they will get an
indefeasible right. It is the legal obligation of the respondents to issue
appointment orders to the reserve list candidates. The non-communication of the
vacancy position by the Department in time to the second respondent will not
affect the accrued right of the reserve list candidates. If the respondents
fail to discharge their statutory obligation, the petitioners have got every
right to seek appointment on the basis of the availability of vacancies due to
non-joining of the selected candidates. The petitioners’ right to get selected
cannot be allowed to be defeated by the inaction of the respondents. If the
same is permitted, the respondents can defeat the rights of the reserve listed
candidates though the selected candidates failed to join in time, which is to be
treated as arbitrary and capricious and violative of Articles 14 and 16 of the
Constitution of India. Thus, the second respondent is bound to release the
petitioners’ names for appointment in the vacant posts, which arose due to non-
joining of the selected candidates.”
The decision made in Secretary, T.N.P.S.C., v. R.Nagarajan reported in 2008 (6)
MLJ 1259 (Mad-NOC) has been relied.
11.Facts of this case are squarely applicable to the decisions of this
Court in Secretary, T.N.P.S.C., v. R.Nagarajan reported in 2008 (6) MLJ 1259
(Mad-NOC) = 2008 (3) LW 222 and Dr.D.Karal v. State of T.N., reported in 2009
(1) MLJ 1259.
12.In such circumstances, a mandamus is issued to the Tamil Nadu Public
Service Commission to release the reserve list, insofar as the petitioner is
concerned, within a period of four weeks from the date of receipt of a copy of
this order and on receipt of the communication from the Commission, the
Commissioner of Hindu Religious and Charitable Endowment Department, Chennai,
the second respondent herein, shall issue necessary appointment orders to the
petitioner, immediately, subject to satisfying other requirements under the
recruitment rules.
13.In the result, the Writ Petition is allowed. No costs. Consequently,
connected Miscellaneous Petition is also closed.
gcg
To
1.The Secretary to Government,
Hindu Religious and Charitable
Endowments Administration
Department, Secretariat,
Fort St. George, Chennai – 600 009.
2.The Commissioner,
Hindu Religious and Charitable
Endowments Administration Department,
Nungambakkam, Chennai – 600 034.
3.The Secretary,
Tamil Nadu Public Service
Commission, NO.1, Greams
Road, (Commercial Tax Building
Annexe), Chennai – 600 006.