IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 09.02.2011 Coram THE HON’BLE MR. JUSTICE VINOD K.SHARMA W.P.No.14398 of 2008 and M.P.Nos.1 of 2008 and 2 of 2011 N.Sudarsanan .. Petitioner .. Vs .. 1. Union of India, represented by The Government of Union Territory of Puducherry, represented by its Secretary to Government (Power), Chief Secretariat, Goubert Avenue, Puducherry. 2. Secretary to Government (Industries), Government of Puducherry, Chief Secretariat, Goubert Avenue, Puducherry. 3. The Managing Director, Pondicherry Power Corporation Limited (A Government of Pondicherry Undertaking), No.10, Second Cross, Jawahar Nagar, Boomianpet, Puducherry – 605 005. 4. K.Subramanian 5. R.V.Senthil 6. R.Sivaraman ... Respondents Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to the common Impugned Memorandum No.549/PPCL/MD/Estt/2007–08 commonly dated as 01.06.2007 issued by the third respondent herein and quash the same as illegal and arbitrary by consequently directing the third respondent herein to select the petitioner herein to the Post of Assistant Executive Engineer (Elect.) in the Pondicherry Power Corporation Limited (A Government of Puducherry Undertaking) with all consequential and attendant benefits. (Prayer is amended as per order of this Court dated 27.01.2011 in M.P.No.1/2011 in W.P.No.14398/08) For Petitioner : Mr.L.Swaminathan For RR-1 to 3 : Mr.D.Sreenivasan, Govt. Pleader (Pondicherry) For RR-4 to 6 : Mr.R.Divakaran https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner has invoked the writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India with a prayer for issuance of a writ in the nature of certiorari to quash the selection of respondents 4 to 6 to the post of Assistant Executive Engineer (Elect.) in the Pondicherry Power Corporation Limited. 2. The petitioner is employed as Vocational Instructor in the Labour Department, Government of Puducherry. The petitioner was also registered with the Employment Exchange, Puducherry. The Post of Assistant Executive Engineer (Elect.) was advertised by the Pondicherry Power Corporation Limited. The petitioner was sponsored by the Employment Exchange, Puducherry, for being considered for appointment to the Post of Assistant Executive Engineer (Elect.). Besides, the requisitions through the Employment Exchange, posts were also advertised in different newspapers. Respondents 4 to 6 applied in response to the notification issued in the newspaper. The petitioner thereafter received a memorandum from Pondicherry Power Corporation Limited, dated 26.04.2007, which reads as under:- PONDICHERRY POWER CORPORATION LTD (A Govt. of Puducherry Undertaking) Puducherry ---------------------------------------------------------- No.10, 2nd Cross Tel : (0413) 2204043, 2204688, Jawahar Nagar, Fax : (0413) 2202971 Puducherry – 5. E-mail :ppclpdy@satyam.net.in ______________________________________________ No.F.50/PPC/MD/Estt/06-07/244 dated 26.04.2007 MEMORANDUM Sub: PPCL – Recruitment to the post of Assistant Executive Engineer (Elect.) - verification of certificate and written exam called for - Reg. It is informed that your name has been sponsored by Employment Exchange, Puducherry, for recruitment to the post of Assistant Executive Engineer (Elect.) in the Pondicherry Power Corporation Limited, T.R.Pattinam, karaikal. 2. It is proposed to hold the written examination at Bharathidhasan Govt. College for Women, M.G. Road, Mudhalirpet, Puducherry on 13.05.2007 at 10.00 A.M. 3. You are hereby instructed to be present at the above mentioned place at 9.00 A.M. with the following original certificates (along with one set of attested copies) for certificate verification. https://hcservices.ecourts.gov.in/hcservices/ a) Birth Certificate b) Nationality Certificate c) Residence / Nativity Certificate d) Educational Qualification Certificate e) Experience Certificate f) Employment Exchange Card g) Certificate as enclosed 4. No TA / DA will not be paid for the above purpose. 5. The duration of the exam will be of 1 hour 30 minutes and the question will be of objective type followed by on interview on 14.05.2007. MANAGING DIRECTOR To Thiru. N.Sundarasanan S/o. Narayanasamy, No.73 (New) 73A1 (old) Pillayar Koil Street, (Opposite to Veivekananda Vidhyalaya) Kalitheerthal Kuppam, Madagadipet, Puducherry – 605 107." 3. Similar memorandum was also sent to other candidates, who had applied, in response to the notification in the newspaper. In response to the memorandum received by the petitioner, he applied to the Principal, Government Industrial Training Institute through his letter dated 08.03.2007 to issue a Service Certificate. The petitioner also sent a Demand Draft for Rs.100/- in the name of the Managing Director, Pondicherry Power Corporation Limited. 4. It is not in dispute that written test for appointment to the post of Assistant Executive Engineer (Elect.) was held on 13.05.2007, in which, the petitioner also participated. The petitioner claims that he answered the written examination very well and was confident of selection or at least being called for interview on 14.05.2007. 5. The case of the petitioner is that few minutes after the written examination, the result was declared declaring respondents 4 to 6 have been selected for the post of Assistant Executive Engineer (Elect.). The case of the petitioner is that this was done to favour respondents 4 to 6, as they were already working as Junior Engineers in Pondicherry Power Corporation Limited. The petitioner questions the selection process as illegal as it was not conducted as per the memorandum dated 26.04.2007. The case of the petitioner is, that even the result was not displayed on the notice board. The petitioner, in order to verify the facts, sought information under Right to Information Act. In response to the information sought, the petitioner was informed as under:- https://hcservices.ecourts.gov.in/hcservices/ PUDUCHERRY POWER CORPORATION LTD (A Govt. of Puducherry Undertaking) Puducherry ---------------------------------------------------------- No.10, 2nd Cross Tel : (0413) 2204043, 2204688, Jawahar Nagar, Fax : (0413) 2202971 Puducherry – 5. E-mail :ppclpdy@satyam.net.in ______________________________________________ No. /PPC/MD/Estt/07-08/520 dated 30.05.2007 To Tmt. S.Sundary, No.73, (New), 73/A-1 (old) Pillayar Koil Street, Kalitheerthal Kuppam Village, (Opposite to Vivekananda Vidhyalaya) Madagadipet, Puducherry – 605 107. Sub : Reply of Form 1 application for seeking information under the Right to Information Act, 2005. Ref : Application dated 23.05.2007 I am refer to the Form – 1 cited and to furnish the details of recruitment for the post of Assistant Executive Engineer (Elect.) Project Office of this Corporation in the Annexure I & II enclosed. (R.DATTATRAYULU) MANAGING DIRECTOR Enclosed : Annexure I & II ANNEXURE – I 3. Particulars of Information:- The Certificate verification was done by officials / staff of the Corporation The Written examination for recruitment of Assistant Executive Engineer (Elect.) was conducted by officials of Neyveli Lignite Corporation, Neyveli. The certificate verification was done by Superintendent and concerned staff of the Corporation. The written examination for the post of Assistant Executive Engineer (Elect.) was conducted by the officials of NLC. (a) How many candidates were appeared in certificate verification held on 13.05.2007 to the post of Assistant Executive Engineer (Elect.) Seven candidates https://hcservices.ecourts.gov.in/hcservices/ (i) Open Competition six candidates directly applied on the basis of advertisement issued by the Corporation. (ii) Sponsored by Employment Exchange, Puducherry. One candidate. Out of the four candidates sponsored by the Employment Exchange three candidates did not turn up (iii) In service candidates and what are their names and address and where they are working at present. Five in service candidates have applied through proper channel on open competition for the post of Assistant Executive Engineer (Elect.) and they are presently working in the Corporation and their names and address are as follows:- 1. Thiru. C.Visvanathan, S/o.V.Carounanidy, B3/2, PPCL Quarters, T.R. Pattinam, karikal – 609 606. 2. Thiru. K.Subramanian, S/o.D.Kandasamy, A1/2, Type IV, PPCL Staff Quarters, T.R. Pattinam, karikal – 609 606. 3. Thiru. M.Kalaichezhian, S/o. Munisamy, No.28, Venkatesaperumal South Street, T.R. Pattinam, karikal – 609 606. 4. Thiru. R.Sivaraman, B2/1, PPCL Staff Quarters, T.R. Pattinam, karikal – 609 606. 5. Thiru. R.V.Senthil, No.1, Jahid Fathima Apartments, New Masjid Street, P.K. Road, karikal – 609 602. (b) As required under law. (c) All seven candidates namely :- appeared for the written exam. 1. Thiru. C.Visvanathan, 2. Thiru. K.Subramanian, 3. Thiru. M.Kalaichezhian, 4. Thiru. R.Sivaraman, 5. Thiru. R.V. Senthil, 6. Thiru. N.Sundarasanan https://hcservices.ecourts.gov.in/hcservices/ 7. Thiru. N.Manikandan (d) The recruitment has been done on the basis of written test conducted by officials of NLC, Neyveli. The results of successful candidates were announced after 1 hour on the completion of the written test in the presence of all the candidates who appeared for the written test. 6. The petitioner, therefore, questioned the selection of respondents 4 to 6 on the ground that the selection is not fair, therefore is violative of Article 14 of the Constitution of India, inasmuch as, the proper procedure as circulated/decided before appointment was not followed. 7. Respondents 1 to 3 have chosen not to file counter. However, the counter has been filed on behalf of respondents 4 to 6. A preliminary objection is raised with regard to maintainability of the writ petition on the ground that respondents 4 to 6 were appointed to the post of Assistant Executive Engineers (Elect.) even before filing the present writ petition, therefore in the absence of challenge to the selection, the writ as framed was not competent. This objection, no more is available as the petitioner was allowed to amend the relief claimed in the writ petition. 8. The objection also raised, that as no legal right of the petition has been infringed to invoke the extraordinary writ jurisdiction of this Court, the objection is misconceived as valuable right of petitioner has been infringed by lack of effective consideration as per procedure laid down. 9. The case of the respondents 4 to 6 is that the petitioner was not eligible to be appointed for want of requisite experience and therefore can have no grievance to the selection of respondents 4 to 6. This objection again deserves to be noticed to be rejected. The petitioner was one of the candidate, the selection has been made in violation of the procedure laid down for the selection, as no interview was held after the written test, even though it was so stipulated, in the memorandum issued laying down the process of selection. It therefore means that some marks were kept for interview also. Respondents 4 to 6 have also questioned the maintainability of the writ petition on the ground of delay and laches. This contention again deserves to be noticed to be rejected. The petitioner was given information under Right to Information Act on 13.05.2007 and the writ petition was filed within a year. There is thus no inordinate delay to nonsuit the petitioner on ground of delay. 10. In the counter, the stand taken by respondents 4 to 6 is, that they are not aware as to why no interview was conducted by respondents 1 to 3. The stand taken in the written statement is https://hcservices.ecourts.gov.in/hcservices/ that respondents 4 to 6 cannot be made to suffer for the wrong, if any done by respondents 1 to 3. 11. It is the contention of the learned counsel for respondents 4 to 6 that in pursuance to the selection, they resigned from their posts, and would be on the road, if their selection is now set aside, that too on the petition of a person, who is not eligible to hold the post. 12. It is also the contention of the learned counsel for respondents Nos.4 to 6, that under the Recruitment Rule, the holding of interview is not prescribed and therefore merely because no interview was held cannot be a ground to set aside the selection by questioning its validity. This contention again deserves to be noticed to be rejected, for the simple reason that the statutory Rule do not bar the holding of interview. 13. The learned counsel for the respondents also referred to the Judgment of Hon'ble Supreme Court in the case of Diploma Engineers Sangh Vs. State of U.P. and others JT 2007 (4) SC 532 to contend that qualifying examination refers only to written examination and not an interview. Therefore, merely because no interview was held, cannot be a ground to quash the selection. This Judgment is of no help to the respondents. The Hon’ble Supreme Court interpreted the qualifying examination in Rule 9(ii) of Utter Pradesh service of Engineers (Building and Road Branch) Class II Rules 1936 and not process of selection by direct recruitment. 14. The Hon'ble Punjab and Haryana High Court in the case of Sangeeta Vs. State of Punjab 2010 (4) SLT 465 has laid down that change of criteria of selection after advertisement is not permissible. In this case selected candidates were employed with corporation, thus it can lead to the conclusion, that the respondents were given undue advantage. It is also settled law that justice should not only be done but should also seem to have been done. The selection of respondents 4 to 6, on the fact of it, is arbitrary, thus not sustainable in law. It is not face shown, as to, who had taken the decision to change the selection process. 15. It is now well settled that the authorities, while making selection, are bound by the procedure of selection laid down at the time of advertisement of the posts. It is not open to the authorities, to change the process mid way and adopt different procedure. One of important part of selection process, i.e., interview has been totally dispensed with without assigning any reason. 16. The procedure adopted by selection committee on the face of it, is contrary to the notified procedure for selection, which seems to have been deviated to help respondents 4 to 6, who were admittedly the employees of the Puducherry Power Corporation Limited. The selection, therefore, is arbitrary thus vitiated under law of reasonableness. https://hcservices.ecourts.gov.in/hcservices/ 17. The learned counsel for respondents placed reliance on the Judgment of Madurai Bench of this Court in the case of State Agriculture and Horticulture Diploma Holders Association Vs. State of Tamil Nadu (MANU/TN/0126/2010) in W.P. (MD) No.5655 of 2009 etc., batch decided on 11.02.2010, in which, the writ petition filed, to challenge the selection of the selected candidates, was dismissed, by Madurai Bench of this Court, by recording the following reasons. 23. From the above, we are able to see that (a) The recruitment was only in accordance with the Rules. (b) The Rules provide for drawing candidates only from Employment Exchange and this has been done. The Rules only provide for an oral interview and therefore non-conduct of written test cannot vitiate the selection process. (c) The Supreme Court has also held that there may be tests where the only proper method of selection may be viva voce test and therefore, we cannot reject the selection purely on the ground that 50% of marks was allotted to oral interview. (d) The Supreme Court has also held that it is for the Government to decide what kind of competitive examination would be appropriate in a given case. (e) The selection of 1707 candidates have been made from out of a pool drawn in the ratio 1:3 and this ratio has also been accepted by the Supreme Court, which has held that number of candidates to be called for interview cannot exceed twice or at the highest thrice the number of vacancies to be filled. (f) The allegation of monetary consideration is vague and lacks details. (g) The long wait of the candidates has been taken into consideration by the Government, which has given the benefit of age relaxation twice." 18. The learned counsel for respondents also placed reliance on the Judgment of this Court in the case of Tamil Nadu Engineering Diploma Holders Association Vs. The Secretary to Government Home (Transport IIA), Department and The Secretary, Tamil Nadu Public Service Commission, in W.P.No.13216 of 2009, decided on 02.09.2009. This Judgment again does not ultimately deal with the question raised in this petition. https://hcservices.ecourts.gov.in/hcservices/ 19. The Judgments relied on by the learned counsel for respondents cannot help the case of the respondents as admittedly the Division Bench of this Court also held that it is for the Government to decide that what kind of competitive examination would be appropriate in a given case. 20. The case of the petitioner is that after adopting a particular mode of selection, it was not open to deviate therefrom, whereas while making selection no interview was held thus there is clear deviation. Therefore, the selection of respondents 4 to 6, on the face of it, arbitrary which cannot be sustained in law. 21. For the reasons stated, the writ petition is allowed, the selection of respondents 4 to 6 is quashed. Respondents 1 to 3 are directed to hold the fresh selection to the post of Assistant Executive Engineer (Elect.), within a period of three months on receipt of certified copy of this order, by following due process of law. 22. The petitioner shall also be entitled to cost, which are assessed at Rs.10,000/- (Ten Thousand), which shall be recoverable by the corporation from the officer, who failed to adopt the procedure prescribed for selection of the candidates. Consequently, connected miscellaneous petitions are closed. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar jrl To 1. The Secretary to Government (Power), Union of India, represented by The Government of Union Territory of Puducherry, Chief Secretariat, Goubert Avenue, Puducherry. 2. Secretary to Government (Industries), Government of Puducherry, Chief Secretariat, Goubert Avenue, Puducherry. https://hcservices.ecourts.gov.in/hcservices/ 3. The Managing Director, Pondicherry Power Corporation Limited (A Government of Pondicherry Undertaking), No.10, Second Cross, Jawahar Nagar, Boomianpet, Puducherry – 605 005. + 1 cc to Sr.Government Pelader Sr.9884 + 1 cc to Mr.L. Swaminathan, Advocate SR.10014 + 1 cc to M/s. D. Geetha, ADvocate SR.10171 W.P.No.14398 of 2008 KM(CO) EU 1.3.11 https://hcservices.ecourts.gov.in/hcservices/