IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.02.2010 CORAM: THE HON'BLE MR.JUSTICE K.CHANDRU W.P.NO.2927 OF 2010 AND M.P.NOS.1 AND 2 OF 2010 S.V.Sreidhar ....Petitioner Vs. 1.State of Tamil Nadu rep. By its Secretary to Government Personnel and Administrative Fort St.George, Chennai 600 009. 2. The Secretary, Tamil Nadu Public Service Commission, Omanthurar Govt.Estate, Chennai 600 009. ...Respondents Petition filed under Article 226 of the Constitution of India praying to issue a writ of Mandamus directing the 2nd respondent to struck down the preliminary Rule 2(14) of Tamil Nadu State and Subordinate services from the present advertisement number 219 of 2009 dated 15.11.2009 in Daily Thanthi and future requirements. For Petitioner : Mr.S.Mahaveer Shivaji For Respondent No.1: Mr.Hazan Fazil Government Advocate For Respondent NO.2: Mr.C.N.G.Niraimathi O R D E R Heard both sides. 2. The petitioner has now come forward to challenge Rule 2 (14) of the Preliminary Rule framed under the Tamil Nadu Subordinate Services Rules. The said rule reads as follows: https://hcservices.ecourts.gov.in/hcservices/ " 2(14) A candidate is said to be 'recruited direct" to a service, class, category or post when, in case his first appointment thereto has to be made in consultation with the Commission, on the date of its notification inviting applications for the recruitment and in any other case, at the time of his first appointment thereto, he is not in the service of the Government of India or the Government of a State- Provided that for the purposes of this definition a person shall be deemed to be not in the service of the Government of India or the Government of a State- (i) If a period of five years has not elapsed since his first appointment to a service of the Government of India or the Government of a State; or (ii) If he belongs to the Scheduled Castes, Scheduled Tribes or Backward Classes." 3. The petitioner is working as a Junior Engineer Grade II in the Southern Railway at the Division Office under the Divisional Railway Manager, Tiruchirappali. The petitioner is also an Ex- serviceman. The second respondent viz.,Tamil Nadu Public Service Commission(TNPSC) called for applications for the post of combined subordinate services examination-I held in 2007, for which, oral tests were to be held from 17.3.2008 to 15.4.2008. Subsequently by a communication dated 5.3.2008 he was informed that he was provisionally selected for the oral test for the combined Subordinate services Examination-I,2007. Subsequently the oral results were published in the website of the Tamil Nadu Public Service Commission. But the petitioner was not allotted with any mark. Thereafter, though a select list was published, the petitioner's name did not find a place. On further enquiry,he came to know that his results were withheld. 4. The petitioner thereafter made a representation asking for the publication of his results. He also took re-course under the Right to Information Act and asked the information to be provided. The Public Information officer of the Tamil Nadu Public Service Commission by a communication dated 30.12.208 informed the petitioner which is as follows: https://hcservices.ecourts.gov.in/hcservices/ 1 What is the basis and purpose of making such condition on the basis of Past and Current Government employment? Preliminary Rule 2(14) of Tamil Nadu State and Subordinate Service Rules(Copy enclosed) 2 Is there any Legal Opinion/Circular available with the Commission to Justify the rule?(Copy required) The Commission is announcing the said rule in all its Notification inviting application for direct recruitment. It was thereafter the petitioner decided to challenge the said rule and hence this writ petition. 5.The contention of the petitioner was that the application form enable ex-service man to make applications. Therefore he should be considered under ex-serviceman category. He also stated that he took No Objection Certificate from his employer viz.,Assistant Personnel officer,Tiruchirappalli for participating in the selection. He further submitted that the employment in the State is a public employment and persons have got right to compete in any selection for employment. Such a guarantee is given under Articles 14 and 16 of the Constitution. The rule insofar as it prevents a Government servants (both Central and State), who have completed five years of service, being denied entry into service is unconstitutional and violative of Article 14 of the Constitution of India. In this view of the matter, he has come forward to challenge the said rule and for a consequential direction to declare his results. It must be noted that similar contentions raised in the earlier round of litigation by State Government servants were rejected by this Court in more than one writ petition. Notwithstanding the same, counsel for the petitioner contended that the rule is invalid and he being an Ex-serviceman, his case should be considered as a special case. 6. In support of his contention, learned counsel placed reliance upon the Judgment of the Supreme Court in Jai Narain Ram Vs. State of U.P. And others reported in AIR 1996 S.C 703. Reliance was placed on paragraph 7 of the said judgment which reads as follows: "7. Right to seek appointment to a post under Article 14 read with Article 16(1) and (4) is a constitutional right to equality. The State failed to perform its constitutional duty to requisition the P.S.C. to recommend the next qualified person to the posts reserved for scheduled castes. Under these circumstances the denial of appointment to the appellant and three others above him is unconstitutional. Therefore, the respondents are not justified in https://hcservices.ecourts.gov.in/hcservices/ denying the claim of the appellant for the appointment to the above post." It is not clear as to how the said judgment will help the case of the petitioner. That was the case in which the question arose was that while preparing waiting list by the State Public Service Commission, certain candidates names were omitted. The Commission directed to and include the candidates who are otherwise qualified. 7. The learned counsel placed reliance upon the judgment of the Supreme Court in N.T.DEVIN KATTI AND OTHERS Vs. KARNATAKA PUBLIC SERVICE COMMISSION AND OTHERS reported in (1990) 2 S.C.C. 157. Learned counsel relied upon the passage found in paragraph 11 which reads as follows: "11.There is yet another aspect of the question. Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing rules or government orders, and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing rules and government orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystalises on the date of publication of advertisement, however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and is construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication; if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case https://hcservices.ecourts.gov.in/hcservices/ having regard to the terms and conditions set out in the advertisement and the relevant rules and orders. Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right of selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right of being considered for selection in accordance with the rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature."(Emphasis added) On the strength of this passage, the counsel wanted to argue that when the advertisement invited application for a category of post and it also included the rules under which such selection is made, then selection will have to be made only in respect of the un- amended rules and no reliance can be placed on any subsequent amendment to the rules. 8. In the present case, Rule 2(14) which is now under challenge is always been a part of the statutory rule framed by the State Government. The aim and purpose of the said rule is that a Government servant, after some years in Government Service gain valuable experience in his post and his services are needed in the said post. Mid-stream, if he is allowed to switch over to other employment, it will create serious dislocation in the Government's functioning. It is not as if the petitioner cannot apply for such posts or there is a total bar. The bar is only on the basis of existing Government servant with minimum years of service (i.e. five years) from applying other posts in the Government, while framing the rule, the State had fixed five years as the cut-off date. Therefore, the persons who are having less than five years' service can also send applications. If the petitioner is so enamoured about the said post, he can always apply for the post after quitting his service and not as an existing Government servant. Hence, there is no total denial for getting in such employment. If at all he has to be satisfied with the normal promotional channel in his own service Any fast track mode to go to higher posts will have to be based on rules and not de-hors it. 9.Learned counsel also placed reliance upon the judgment of the Supreme Court in Union Public Service Commission Vs. Girish Jayanti Lal Vaghela and others reported in (2006) 2 SCC 82. Reliance was placed upon Paragraph 12 of the order which reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "12.Article 16 which finds place in part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words "employment of appointment" cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation, etc, The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be madD without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution.(See.B.S.Minhas v. Indian Statistical Institute)." 10.There is no quarrel with the proposition of law laid down by the Supreme Court The Supreme Court had emphasised that Article 16 of the Constitution is available not only at the entry into service but throughout the entire carrier including promotion, superannuation etc., But in the present case, the Court is only concerned with the challenge to the vires of the impugned rules. That is whether if the State Government decides that the existing government servants belonged whether State service or Central service, but, who have put in five years' of service in particular post are not allowed to complete for other posts in the Government, is violative of Article 16 of the Constitution of India. As stated already, there is no total denial of entry into such https://hcservices.ecourts.gov.in/hcservices/ service, but only a restriction on certain categories of employees from entering into another Government service deserting their previous post in which they have gained sufficient service. 11. Under these circumstances, this Court do not find any illegality in the impugned order. The rule does not suffer from any constitutional infringement, as suggested by the petitioner. Hence, the writ petition stands dismissed. No costs. Consequently,MP.Nos.1 and 2 of 2010 are also dismissed. VJY Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Secretary to Government Personnel and Administrative Fort St.George, Chennai 600 009. 2.The Secretary, Tamil Nadu Public Service Commission, Omanthurar Govt.Estate, Chennai 600 009. + 1 cc to M/s. Mahaveer Sivaji, Advocate SR No.11495 NG(CO) SR/25.2.2010 W.P.NO.2927 OF 2010 AND M.P.NOS.1 AND 2 OF 2010 https://hcservices.ecourts.gov.in/hcservices/