IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:02.09.2009 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P.NO.13216 OF 2009 Tamil Nadu Engineering Diploma Holders Association, Maduravayal by its General Secretary S.Geethapathy 4/283, Maduravayal CMDA Chennai – 600 095. .. Petitioner Versus 1.The Secretary to Government Home (Transport IIA) Department Fort St. George Chennai – 600 009. 2.The Secretary Tamil Nadu Public Service Commission Government Estate Chennai – 600 002. .. Respondents PRAYER : Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the Secretary, Tamil Nadu Public Service Commission, Chennai the second respondent herein to call for 147 candidates for interview from the candidates who have come out successful in the written examination for the post of Motor Vehicle Inspector Grade – II for the year 2001-2006 in the ratio of 1:3 for the 49 posts notified pursuant to the notification made by T.N.P.S.C. Vide its Advertisement No.107 and consequently hold a selection and make appointment to the Tamil Nadu Transport Subordinate Service within a time frame. For Petitioner : Mr.K.Rajkumar For R-1 : Mrs. Lita Srinivasan Government Advocate For R-2 : Mr.G.Masilamani Senior Counsel for Mr.K.Surendranath / Mr.V.Saravanan (TNPSC) * * * * * https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner is an association of Tamil Nadu Engineering Diploma Holders which consists of Mechanical Engineering and Automobile Engineering. A notification was issued by the second respondent on 23.05.2007 in advertisement No.107 calling for the applications for the post of Motor Vehicles Inspector, Grade-II, totaling 49. In pursuant to the notification, the second respondent has issued instructions to the candidates who are eligible to be appointed as Motor Vehicles Inspector, Grade-II. The vacancies mentioned in the said notification are notified subject to the rules of reservation. 2.The instructions given by the second respondent in Paragraph 22(b) clearly stipulate the procedure for selection. Accordingly, there shall be a main written examination and the selected candidates will under go an oral test. By considering the marks obtained in both written examination as well as the oral test, selection would be made. If the number of vacancies notified/reserved to be filled up for any one or more of the reservation groups such as Scheduled Castes, Scheduled Tribes etc., is 5 and above, the number of candidates to be admitted to the oral test shall be two times the number of vacancies for which recruitment has to be made. Similarly, if the number of vacancies in any one or more of the remaining reservation groups are 4 and below, then the number of candidates to be admitted to the oral test shall be three times the number of vacancies for which the recruitment has to be made. Therefore, as per the said instructions when in a reserved category, the vacancies are 5 and more, then two times more than the vacancies would be called for from those who have written the main examination and where the vacancies are 4 and less in the reserved categories, then the same would be three times more. Accordingly, those candidates alone would be called for the oral interview. For example, if there is one post available in a reserved category, then three persons from the said category who have written the examination and who have scored the first three higher marks would be called. Similarly. if there are 5 vacancies in a reserved category, 10 candidates would be called. Therefore, the ratio of 1:2 when vacancies are more and 1:3 when vacancies are less in a reserved category has been formulated. 3.In this connection, instruction 22(b) is extracted hereunder: "22(b). Posts for which selection is made on the basis of Written Examination and Oral Test. Where the selection is made on the basis of both, Main Written Examination/Written Examination and Oral Test, the Main Written https://hcservices.ecourts.gov.in/hcservices/ Examination/Written Examination will precede the Oral Test. If the number of vacancies notified/reserved to be filled up for any one or more of the reservation groups(viz. Scheduled Castes, Scheduled Tribes, Most Backward Classes/Denotified Communities, Backward Classes or General Turn) is five and above, the number of candidates to be admitted to the Oral Test shall be two times the number of vacancies for which recruitment has to be made against those reservation groups based on the marks obtained by the candidates at the Main Written Examination or Written Examination, as the case may be. Similarly, if the number of vacancies in any one or more of the remaining reservation groups for the same recruitment is four and below, the number of candidates to be admitted to the Oral Test from those particular reservation groups(s) shall be three times the number of vacancies for which recruitment has to be made against those reservation group(s). In respect of the posts, the total cadre strength of which is one only and for which the rule of reservation of appointments does not apply, the number of candidates to be admitted to the Oral Test on the basis of the marks obtained at the Written Examination will be three. The final selection will be made on the basis of the total marks obtained by the candidates at the Main Written Examination or Written Examination, as the case may be, and Oral Test taken together subject to the rule of reservation of appointments wherever it applies. Appearance in all the papers at the Main Written Examination/Written Examination and for Oral Test is compulsory. The candidates who have not appeared for any of the subjects in the Main Written Examination/Written Examination will not be considered for selection even if they secure the minimum qualifying marks for selection. The marks obtained by the candidates appearing for the Oral Test, both in the Written Examination as well as in the Oral Test will be placed in the Notice Board in the Office of the Tamil Nadu Public Service Commission in the evening either on the last day fixed for Oral Test or one the succeeding working day. The same will also be made available on the Internet in the Commission's Website www.tnpsc.org." https://hcservices.ecourts.gov.in/hcservices/ 4.In pursuant to the said examination, the candidates have been selected and they have been asked to attend the oral test by following the above said ratio. At that point of time, the writ petition has been filed by the petitioner herein seeking the relief of writ of mandamus directing the second respondent to follow the ratio of 1:3 for the 49 posts notified pursuant to the notification dated 23.05.2007. 5.Shri.K.Rajkumar, learned counsel for the petitioner submitted that over the years what is followed is only 1:3 ratio for all categories. By restricting the ratio to 1:2 more members of the petitioner's association have lost their chances. Therefore, the method adopted by the second respondent is illegal. It is further submitted that for the post of District Educational Officer, the second respondent has called for 57 candidates for 19 vacancies in the ratio of 1:3. 6.Shri.K.Rajkumar, learned counsel for the petitioner further contended that the Government of Tamil Nadu has issued G.O.Ms.No.18, Labour and Employment Department (N2) dated 25.02.2008 in which, the directions have been issued to fill up the post of Secondary Grade Teachers which is a ratio of 1:5. Even in the previous occasions the respondents have followed only 1:3 ratio. Therefore, the second respondent will have to be directed to call for the interview by fixing the ratio of 1:3 since by following the available 1:2 ratio the members of the petitioner are affected. It is further submitted that the principle of desuetede will have to be applied in the present case and accordingly, a procedure which has been followed over the years even contrary to the rule will have to be continued. The learned counsel further submitted that the respondents cannot follow different yardstick for different categories and hence the said action of the second respondent is violative under Article 14 of the Constitution of India. 7.In support of his contention that the procedure as contemplated by the second respondent in the instructions shall not be followed in view of the earlier procedure followed over the years, the learned counsel for the petitioner relied upon the judgment reported in 1995 (3) SCC 434 [MUNICIPAL CORPORATION FOR CITY OF PUNE AND ANOTHER vs. BHARAT FORGE CO. LTD. AND OTHERS] and submitted that the principle of desuetede will have to be followed. In support of his contention that the action of the second respondent would amount to violation of article 14 of the Constitution of India inasmuch as similarly placed persons are treated unequally, the learned counsel relied upon the judgments reported in AIR 1971 SC 2369 [UNION OF INDIA vs. MOOL CHAND DASUMAL PARDASANI], AIR 1973 SC 689 [NAGPUR IMPROVEMENT TRUST AND ANOTHER vs. VITHAL RAO AND OTHERS], AIR 1993 SC 2467 [CENTRAL RAILWAY AUDIT STAFF ASSOCIATION AND OTHERS vs. DIRECTOR OF AUDIT, CENTRAL RAILWAY AND OTHERS], AIR 1965 SC 1017 [P.VAJRAVELU https://hcservices.ecourts.gov.in/hcservices/ MUDALIAR, MOST REV.DR.L.MATHIAS vs. THE SPECIAL DEPUTY COLLECTOR FOR LAND ACQUISITION, WEST MADRAS AND ANOTHER], (2006) 2 MLJ 572 [N.S.BALASUBRAMANIAN AND OTHERS vs. FOOD CORPORATION OF INDIA, NEW DELHI]. Further, in support of his contention that even a policy decision can be challenged in the touchtone of Article 14 of the Constitution of India, the learned counsel relied upon the judgments reported in 1999 (3) MLJ 347 [S.PAPPA AND OTHERS vs. GOVERNMENT OF TAMIL NADU AND OTHERS] and (2004) 2 MLJ 314 [V.KRISHNAMURTHY, PROPRIETOR, MEENA ADVERTISERS, CHENNAI vs. AIRPORTS AUTHORITY OF INDIA, NEW DELHI]. Hence, Shri.K.Rajkumar, learned counsel for the petitioner contended that the writ petition will have to be allowed, based upon the submissions made by him. 8.Per contra, Shri.G.Masilamani, learned senior counsel appearing for the second respondent submitted that the writ petition is not maintainable in law and facts. The writ petition cannot be maintained by an association since the aggrieved persons are individual members. Moreover, a policy decision of the second respondent cannot be assailed without even challenging the same by way of an appropriate prayer. It is further submitted that the members of the petitioner are estopped from challenging the said condition mentioned in the prospectus since the prospectus and the instructions are having the force of law. 9.Shri.G.Masilamani, learned senior counsel for the second respondent also contended that inasmuch as the procedure having formulated by the second respondent by exercising the power under Article 320(1) of the Constitution of India, the petitioner cannot challenge the same since the second respondent is well within his right to formulate the procedure. It is further submitted that Article 14 is positive in nature and the same cannot be used to commit an illegality by the respondents. 10.In support of his contention that the prospectus and the instructions are having the force of law Shri.G.Masilamani has relied upon the judgment reported in 2006 (3) CTC 449 [DR.M.VENNILA vs. TAMIL NADU PUBLIC SERVICE COMMISSION] wherein a Division Bench of the Hon'ble High Court of Madras has taken such a view. Shri.G.Masilamani, learned senior counsel also relied upon the judgment reported in AIR 1987 SC 454 [ASHOK KUMAR YADAV AND OTHERS vs. STATE OF HARYANA AND OTHERS] to submit that the ratio of 1:2 and 1:3 has been evolved based upon the said judgment alone. He further submitted that the ratio followed for the other posts cannot form the basis since it depends upon the number of vacancies available because it is always desirable to have less number of persons selected from the main written examination to be interviewed by the second respondent in order to have proper assessment of the candidates. The said decision being one of policy decision the same cannot be questioned. https://hcservices.ecourts.gov.in/hcservices/ 11.I have heard Mr.K.Rajkumar, learned counsel for the petitioner, Mrs.Lita Srinivasan, learned Government Advocate for the first respondent and Mr.G.Masilamani, learned senior counsel for the second respondent. 12.As rightly contended by Shri.G.Masilamani, learned senior counsel for the second respondent, the writ petition is misconceived. The petitioner cannot file a writ of mandamus directing the respondents to formulate a particular policy. A formulation of a policy by the respondents is entirely within its own jurisdiction. Hence until and unless, the said policy decision is arbitrary, illegal and irrational the same cannot be challenged. This Hon'ble Court sitting under Article 226 of the Constitution of India cannot test such a policy decision evolved by the respondents. 13.Further, a writ of mandamus being a discretionary relief cannot be issued at the instance of the petitioner who is an association. It is for the individual members to have recourse to law. Moreover there is no legal right for the petitioner to seek the relief sought for. Nobody has got a vested right to seek an appointment but there can only be a right to consider the individual person for an appointment subject to the rules and regulations. The members of the petitioner admittedly participated in the main written examination. It is not in dispute that instructions No.22(b) stipulates a specific mode by which selection has to be made. The petitioner and his members are aware of the said mode and they cannot presume that the said method will not be adopted by the respondents. 14.The fact that a different procedure is adopted by the Government of Tamil Nadu in following the ratio and by the respondents in other cases cannot be a ground to invoke Article 14 of the Constitution of India. Article 14 of the Constitution of India would be made applicable only in a case where the persons, groups or associations are classified into one. In a case where the classification is based upon intelligible differentia having nexus to the object sought to be achieved, the said decision made by an authority cannot be termed as violative of Article 14 of the Constitution of India. Further, the contention of Shri.K.Rajkumar, learned counsel for the petitioner that over the years the respondents have followed 1:3 ratio inspite of the similar instruction and hence the same procedure has to be followed, also cannot be countenanced. It is a well settled principle of law that Article 14 of the Constitution of India cannot be pressed into service in a case where illegality has been committed by an authority in one case. Moreover, a writ of mandamus cannot be issued to an authority to act contrary to the rules and procedure established by law. Inasmuch as the notification and the instruction are having the sanction of law and the said procedure having been adopted as a policy by the respondents the same cannot be questioned, more so https://hcservices.ecourts.gov.in/hcservices/ after the participation by the members of the petitioner. The petitioner also does not have any case on the ground of legitimate expectation based on a fact which is said to have been done contrary to the procedure. Further the relief based on legitimate expectation would not arise against the public interest and public policy. 15.Shri.K.Rajkumar, learned counsel for the petitioner has relied upon the judgment reported in 1995 (3) SCC 434 [MUNICIPAL CORPORATION FOR CITY OF PUNE AND ANOTHER vs. BHARAT FORGE CO. LTD. AND OTHERS]. In the opinion of this Court the said judgment is not applicable to the facts and circumstances of this case. In the said case, in pursuant to the notification dated 12.03.1881 octroi was collected sufficiently for a long period. Thereafter, another notification was issued on 17.06.1918 which has not been implemented. Thereafter, new octroi rules came into force in 1963. Hence, taking into consideration of the above said facts, the Hon'ble Supreme Court has held that by applying the doctrine of desuetude there cannot be any demand based upon the notification dated 17.06.1918. In order to apply the principle of desuetude there must be a contrary practice which must be of some duration and general application. Under the said principle an act of the parliament may lose its force without express repeal. The said judgment cannot be applied to the present case since a reading of the counter affidavit would show that the policy of Ratio evolved in the present case has also been applied by the second respondent to other cases as well. 16.In fact, in support of the Group-I Service Recruitment, however Government recruited candidates have been admitted to the oral test in the ratio of 1:2 only. Therefore, this Court is of the opinion that the learned counsel for the petitioner has relied upon the judgment which is not applicable to the present case on hand. The other judgment relied upon by the learned counsel for the petitioner also do not support the case of the petitioner. In the judgment reported in AIR 1971 SC 2369 [UNION OF INDIA vs. MOOL CHAND DASUMAL PARDASANI] the Hon'ble Supreme Court was dealing with the situation where the amendment of rule increasing the age of superannuation from 55 to 60 years was not followed in the case of the petitioner therein alone as against the other identically placed persons. Therefore, in view of the fact that the petitioner therein and the other persons who have enjoyed the benefit from the same group, the Hon'ble Supreme Court was pleased to hold that the discrimination made against the petitioner therein is in violative of Article 14 of the Constitution of India. In the judgment reported in AIR 1973 SC 689 [NAGPUR IMPROVEMENT TRUST AND ANOTHER vs. VITHAL RAO AND OTHERS]. The Hon'ble Supreme Court was observed the said judgment in paragraph 23 as follows: "23.It is now well-settled that the State can make a reasonable classification for the purpose of legislation. It is equally well- https://hcservices.ecourts.gov.in/hcservices/ settled that the classification in order to be reasonable must satisfy two tests (i) the classification must be founded on intelligible differentia and (ii) the differentia must have a rational relation with the object sought to be achieved by the legislation in question. In this connection it must be borne in mind that the object itself should be lawful. The object itself cannot be discriminatory, for otherwise, for instance, if the object is to discriminate against one section of the minority the discrimination cannot be justified on the ground that there is a reasonable classification because it has rational relation to the object sought to be achieved." Hence, a reading of the said judgment would show that the said judgment is infact in support of the respondents rather than the petitioner. 17.In the judgment reported in AIR 1993 SC 2467 [CENTRAL RAILWAY AUDIT STAFF ASSOCIATION AND OTHERS vs. DIRECTOR OF AUDIT, CENTRAL RAILWAY AND OTHERS] the Hon'ble Supreme Court has held that when the posts are different, persons working in one post cannot claim the same privileges as given to the other post and the same is not violative of Article 14 of the Constitution of India. Applying the said principle of the Apex Court, this Hon'ble Court finds that selection process evolved by the second respondent in the present case is being different than the one formulated for the selection of the District Educational Officer is not violative of Article 14 of the Constitution of India. 18.Similarly, the Apex Court in judgment reported in AIR 1965 SC 1017 [P.VAJRAVELU MUDALIAR, MOST REV.DR.L.MATHIAS vs. THE SPECIAL DEPUTY COLLECTOR FOR LAND ACQUISITION, WEST MADRAS AND ANOTHER] has held that the classification sought to be made between persons whose lands are acquired for other public purposes has no rationale to the object sought to be achieved. There also the Hon'ble Supreme Court was pleased to hold that Article 14 is violative when similarly placed persons are treated differently. The same has been reiterated by the judgment reported in (2006) 2 MLJ 572 [N.S.BALASUBRAMANIAN AND OTHERS vs. FOOD CORPORATION OF INDIA, NEW DELHI] as well. In the judgment reported in 1999 (3) MLJ 347 [S.PAPPA AND OTHERS vs. GOVERNMENT OF TAMIL NADU AND OTHERS] the Hon'ble High Court has held that even a policy decision can be challenged on the ground of violation of Article 14 of the Constitution of India. This Court is of the opinion that there is no dispute about the said proportion of law but the question to be decided is as to whether the classification is proper or not. In the judgment reported in (2004) 2 MLJ 314 [V.KRISHNAMURTHY, PROPRIETOR, MEENA ADVERTISERS, CHENNAI vs. https://hcservices.ecourts.gov.in/hcservices/ AIRPORTS AUTHORITY OF INDIA, NEW DELHI] the learned single Judge of this Hon'ble Court has held that the Court can interfere when the decision making process is vitiated by malafides, unreasonableness or arbitrariness and overwhelming public interest. As held earlier there is no unreasonableness or arbitrariness and overwhelming public interest requiring interference by this Hon'ble Court in the present case. Further, the petitioner has not even made a plea of malafides and therefore, this Hon'ble Court cannot go into the same, more so when a strong proof is required to be proved by a person raising malafides. 19.Shri.G.Masilamani, learned senior counsel for the second respondent submitted that a policy decision has been evolved by the respondents based upon the judgment reported in AIR 1987 SC 454 [ASHOK KUMAR YADAV AND OTHERS vs. STATE OF HARYANA AND OTHERS] wherein the Hon'ble Supreme Court has depricated the practice of following the ratio beyond 1:2 or 1:3. Therefore, in accordance with the said judgment a policy has been evolved and the second respondent being a statutory body is free to evolve its own policy. This Court also feels that the said submission merits acceptance. Further, in the judgment relied upon by the learned senior counsel for the respondents reported in 2006 (3) CTC 449 [DR.M.VENNILA vs. TAMIL NADU PUBLIC SERVICE COMMISSION] the Hon'ble High Court also makes it clear that after participating in the process of selection, the concerned affected persons cannot challenge the terms of the prospectus which contained the instructions. The observation made by the Division Bench in paragraph 24 is extracted herein. ""24. We have already referred to various terms and conditions mentioned in the application form prescribed by Punjab Technical University, Jalandhar, which are similar to Clause 17 of Instruction to Candidates, etc., and Information Brochure issued by the Tamil Nadu Public Service Commission. It has been repeatedly affirmed by almost all the Full Benches of the Punjab and Haryana High Court that the Information Brochure has the force of law and has to be strictly complied with. We are in respectful agreement with the said view." 20.This Court is of the opinion that the said judgment is squarely applicable to the present case on hand and hence, the petitioner cannot seek the relief sought for. 21.The writ petition has been filed by the petitioner who is an association. The writ petitioner by itself is not the affected or the aggrieved party. Therefore, this Court is of the opinion that the association not being an aggrieved party cannot file a writ petition on behalf of its members. It is for the individual person https://hcservices.ecourts.gov.in/hcservices/ concerned to file a writ petition ventilating his grievances. In this connection, it is useful to refer the judgment of the Hon'ble Division Bench reported in (2005) 3 MLJ 252 [TAMILAGA ASIRIYAR KOOTTANI vs. THE GOVERNMENT OF TAMIL NADU] the Hon'ble Division Bench has observed as follows: "5.A Division Bench of this Court in Formation of Indian Network Marketing Association, Chennai vs. M/s.Apple FMCG Marketing Private Limited, Chennai and others, (Writ Appeal No.688 of 2005 dated 7.4.2005) reported in (2005) 2 M.L.J. 526, has held that such writ appeals are liable to be dismissed on the ground of lack of locus standi (vide paras.6 to 13). In para.6 of the said judgment it was observed:- "It is well settled that ordinarily a writ petition or writ appeal can only be filed by someone who is personally aggrieved." 6.In Indian Sugar Mills Association vs. Secretary to Government, A.I.R. 1951 All. 1 a Full Bench of the Allahabad High Court held (vide paras.10 and 11):- "The further argument is that any person, whether his interests are directly affected or not, can file an application challenging any Act of the Legislature or the order of the