IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.03.2011 CORAM THE HONOURABLE MR. JUSTICE K. CHANDRU W.P. No. 21664 of 2010 & M.P. Nos. 1 & 2 of 2010 S. Suyam Prakasam ..Petitioner Vs. 1. The Secretary to Government, Revenue Department, Fort St. George, Chennai – 600 009. 2. The Secretary to Government, P & AR Department, Fort St. George, Chennai – 600 009. 3. The Secretary to Government, Adi-Dravidar and Tribal Welfare Department, Fort St. George, Chennai – 600 009. 4. The Secretary to Government, Backward Class and Most Backward Class Department, Fort St. George, Chennai – 600 009. 5. The Secretary, Tamil Nadu Public Service Commission, No.1, Greams Road, Chennai – 600 006. ..Respondents Prayer: Petition under Article 226 of the Constitution of India praying for issue of a Writ of Certiorari to call for the records relating to the impugned notification issued by the 5th respondent dated 21.07.2010 and quash the same as far as 1077 posts of Village Administrative Officer earmarked as shortfall vacancies for SC/ST . https://hcservices.ecourts.gov.in/hcservices/ For Petitioner :: Mr.AR.L. Sundaresan Senior Counsel for Mrs.AL. Ganthimathi For Respondents:: Mr.R. Murali, Govt. Advocate for R1 to R4 Ms. C.N.G Niraimathi for R5 O R D E R The petitioner has filed the writ petition under the premises that his daughter was an applicant to the post of Village Administrative Officer for which applications were called for by the Tamil Nadu Public Service Commission by publishing a notification in "The Hindu" dated 21.07.2010,. In that notification, it was indicated that the the post of Village Administrative Officer in the Tamil Nadu Ministerial Service would have 1576 vacancies and the short fall vacancies in respect of SC/ST communities were identified as 1077. The petitioner belongs to Backward Class Community and his daughter had applied for the said post pursuant to the advertisement. He has come forward with the present writ petition challenging the said advertisement on the ground that 1077 posts of Village Administrative Officer notified as shortfall vacancies earmarked for SC/ST communities is illegal and contrary to ground reality. 2. In the affidavit filed in support of the writ petition, the petitioner has contended that there is no such shortfall vacancies in respect of SC/ST communities and for each year, the vacancies were filled up with due reservation meant for those communities. Therefore, any excess vacancies for accommodating candidates from SC/ST communities will be unconstitutional. 3. In the present case, it must be noted that the Government is empowered to fill up posts exclusively for SC/ST communities, which is otherwise known as catch up rule/backlog vacancies. By the 81st amendment made to the Constitution, Article 16 (4-B) has been introduced, which reads as follows: "16. Equality of opportunity in matters of public employment:- (4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the y ear in which they are being filled up for determining the ceiling of fifty per cent reservation on https://hcservices.ecourts.gov.in/hcservices/ total number of vacancies of that year." Such a constitutional provision has been made necessary in order to give effect to Article 46 of the Constitution, which reads as follows: "46.Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections:-The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation." Therefore, though the Courts have held that Article16 (4-B) of the Constitution of India is an enabling provision, in the present case, the State Government, on identifying the estimated number of vacancies in the post of Village Administrative Officer for the years 2007-2008, 2008-2009 and 2009-2010 has issued G.O.Ms. No. 123 Revenue Department dated 11.03.2010. In the said Government Order, it is stated that the number of posts for which sanction was made was 12,506; the posts, which were created by retirement were 3,621; the short fall vacancies in respect of SC/ST were 1077 and the posts for which appointments were to be made on the basis of earlier waiting list were 443; the number of vacancies to be filled up by way of compassionate appointment was estimated to be 525; the backlog vacancies were 2045 and persons to be recruited by Tamil Nadu Public Service Commission were 1576. On the basis of the said Government Order, a direction was issued to the Tamil Nadu Public Service Commission to fill up the vacancies and consequently, a letter dated 16.04.2010 was addressed to the Tamil Nadu Public Service Commission by the Secretary to Government. It is only based on the direction by the State Government, the Tamil Nadu Public Service Commission advertised the vacancies and the backlog vacancies were notified as 1077. The petitioner cannot challenge a mere notification calling for applications as the source of power is vested with the State Government. It is needless to state that the Tamil Nadu Public Service Commission is only a requisitioning authority and it will have to abide by the directions issued by the State Government. In the absence of any challenge to G.O.Ms. No.123 dated 11.03.2010 issued by the State Government and the consequential requisition letter sent to the Tamil Nadu Public Service Commission dated 16.04.2010, a mere advertisement issued by the Tamil Nadu Public Service Commission cannot be the cause of action and this Court is not willing to go into theoretical exercise on the statistics furnished by the petitioner, whose only concern is to get employment for his daughter and nothing more. In the absence of any challenge to the above said G.O., this Court is not inclined to enter into the question whether the backlog vacancies have been identified correctly or it is only excess quota that is sought to be filled up in the name of backlog vacancies. A perusal of Article 16(4-B) read with Article 46 of the Constitution will clearly show that the State can https://hcservices.ecourts.gov.in/hcservices/ make such provisions for appointment in favour of any backward class unless they are adequately represented in the service of the State. Likewise under Article 16(4-A), temporary posts can also be reserved in respect of SC/ST candidates. Not satisfied with these provisions, the Parliament has introduced Article 16(4-B) by way of constitutional amendment and the State has exercised the said power and identified the vacancies. In such circumstances, this Court is not inclined to entertain the writ petition and the same is dismissed. No costs. Connected M.P.s are also dismissed. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar nv To 1. The Secretary to Government, Revenue Department, Fort St. George, Chennai – 600 009. 2. The Secretary to Government, P & AR Department, Fort St. George, Chennai – 600 009. 3. The Secretary to Government, Adi-Dravidar and Tribal Welfare Department, Fort St. George, Chennai – 600 009. 4. The Secretary to Government, Backward Class and Most Backward Class Department, Fort St. George, Chennai – 600 009. 5. The Secretary, Tamil Nadu Public Service Commission, No.1, Greams Road, Chennai – 600 006. 1 cc To The Government Pleader, SR.20748 1 cc To M/S.A.L.Gandhimathi, Advocate, SR.20571 W.P. No. 21664 of 2010 RV (CO) RH (12.4.11) https://hcservices.ecourts.gov.in/hcservices/