IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.06.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.30271 of 2008 and M.P.NO.1 OF 2008 C.Kumaresan ..Petitioner Vs. 1. The State of Tamil Nadu, rep. By the Secretary, Law Department, Fort St. George, Chennai-600 009. 2. The Secretary, Tamil Nadu Public Service Commission, Omandurar Government Estate, Chennai-600 002. 3. The Controller of Examinations, TNPSC, Omandurar Government Estate, Chennai-600 002. ..Respondents This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the second respondent in Memorandum No.2359/OTD-C2/2007, dated 29.9.2008, quash the same and direct the respondents to add the petitioner's name in the reserve list of BC category for appointment to the post of Assistant Public Prosecutor, Grade-II in the Tamil Nadu General Service 2003-2006. For Petitioner : Mrs.Hema Sampath, SC for Ms.R.Meenal For Respondents : Mr.N.Senthilkumar, AGP for R1 Ms.C.N.G.Ezhilarasi for RR2 and 3 https://hcservices.ecourts.gov.in/hcservices/ ORDER The petitioner has come forward to file the present writ petition seeking to challenge the memorandum issued by the second respondent Tamil Nadu Public Service Commission (for short TNPSC), dated 29.09.2008 and after setting aside the same, seeks for inclusion of his name in the reserve list of Backward class category for appointment to the post of Assistant Public Prosecutor-Grade II under the Tamil Nadu General Service for the years 2003-2006. 2.When the writ petition came up on 22.12.2008, the counsel for respondents took notice. Though the matter was directed to be listed with other cases, subsequently, it was found that those cases have got no connection with the present writ petition. Pending the writ petition, though the petitioner sought for certain interim relief, no order was passed in those applications. On notice from this court, the second respondent TNPSC has filed a counter affidavit, dated 25.2.2010. The petitioner has filed a reply, dated 2.3.2010, to which the second respondent has filed a further rejoinder, dated 22.3.2010. 3.Heard the arguments of Mrs.Hema Sampath, learned Senior Counsel leading Ms.R.Meenal, learned counsel for the petitioner, Mr.N.Senthilkumar, learned Additional Government Pleader for first respondent and Ms.C.N.G.Ezilarasi, learned Standing Counsel for second and third respondents. 4.The facts leading to filing the writ petition are as follows: The second respondent called for applications for direct recruitment to the posts of Assistant Public Prosecutor-Grade II under the Tamil Nadu General Service for the years 2003-2006 to fill up 44 vacancies vide its notification, dated 25.5.2007. Those 44 vacancies were to be filled up on the basis of communal roster. For General term candidates, 14 vacancies were made available, for Backward class community, 13 vacancies, MBC – 9 vacancies and for scheduled caste – 8 vacancies. It was found that 1756 candidates had applied pursuant to the notification. The selection to the post was to be made by two stages. The first stage comprised of written examination and the second stage was an oral test by way of an interview. The written examination comprised of four papers. The same was conducted on 24.11.2007 and 25.11.2007. Minimum qualification mark to be scored for the candidates at the written examination so as to call for oral test as per the Commission's notification was 180 for all candidates and for scheduled caste, 140 marks and for MBC, it was 160 marks. On the basis of performance in the written test, candidates were called for oral test on a ratio of 1:2. Though it was notified that candidates were called for 44 vacancies as per the original notification, dated 25.5.2007, at the time of tabulation of results of written examination, vacancies were reduced to 41 in view of the Government order in G.O.(4D) No.104, Home Courts Department, https://hcservices.ecourts.gov.in/hcservices/ dated 5.12.2007. In view of the reduction of number of vacancies, the vacancies which are made available to various posts were refixed. For General term candidates, it was 13, for BC, it was again 13, for MBC it was 8 and for SC it was 7. 5.In the meanwhile, one R.Srinivasan filed a writ petition before this court in W.P.No.21873 of 2008. This court while entertaining the writ petition in M.P.No.3 of 2008, directed by an order, dated 8.9.2008 to keep one post vacant. Therefore, total vacancies were reduced to 40. Out of 40 vacancies, one MBC vacancy reserved for physically handicapped (deaf) was not filled up due to dearth of candidates. Remaining 39 candidates were selected pursuant to oral test and they were communicated results by the Government. They were also given necessary appointment orders. While preparing the list of selected candidates, a reserve list was drawn for 25% of vacancies for each reserve group in terms of Clause 15A of Part 1 of Preliminary of the Tamil Nadu State and Subordinate Rules. In view of the same, 2 candidates were placed in the reserve list under BC General category. 6.When the Government issued appointment orders for 39 candidates, 5 candidates did not join duty and for one candidate, his appointment was withheld by the Government as he was also selected for the post of Civil Judge (Junior Division). Thereafter, six candidates who joined duty as Assistant Public Prosecutors-Grade II were got relieved so as to take up their appointment as Civil Judge (Junior Division). Thereafter, at the request of the Government, TNPSC by its order, dated 4.5.2009 removed the name of six candidates from the approved list of candidates for the post of Assistant Public Prosecutor-Grade II since they failed to join duty. The TNPSC also forwarded the list of 12 candidates, who were selected supplementary from the reserve list/ranking list for appointment against vacancies arose due to persons who joined and left as well as persons who never joined. 7.The petitioner had also applied for the post of Assistant Public Prosecutor-Grade II. He was also called for an interview based on marks obtained by him in the written examination and following the rule of reservation. The petitioner had scored 197 marks. It was claimed by the TNPSC that 8 vacancies under the BC category were filled up apart from 4 vacancies reserved for BC Women and one vacancy kept vacant as per the order of this court. The cut off marks for BC (General) in the select list and supplemental list were as follows: Cut off mark for inclusion in the select list was 216.50 marks. Cut off mark for inclusion in the reserve list was 214.50 marks https://hcservices.ecourts.gov.in/hcservices/ Marks of last candidate in the supplemental list was 212.00 marks. Therefore, when the petitioner is not coming within the zone of consideration, the question of inclusion his name in the select list did not arise. 8.The petitioner's contention that there were 16 Assistant Public Prosecutor-Grade II selected by TNPSC have opted to go as Civil Judge (Junior Division) was denied by the TNPSC. It was asserted that there were 13 Assistant Public Prosecutor-Grade II alone were selected for the post of Civil Judge (Junior division). Out of 13 Assistant Public Prosecutor-Grade II, only six Assistant Public Prosecutor-Grade II were selected in recruitment for the years 2003-2006 and the remaining seven candidates were not selected in that recruitment. Six candidates were allotted from reserve list in that recruitment. 9.In the reply filed by the petitioner, in paragraphs 4 and 5, the petitioner had averred as follows: "4.The allegations in para 8 of the counter affidavit are denied. The marks cannot be termed as cut off marks. The marks are listed only as merit list. The persons above me, i.e. between 197 and 212 have been selected as Civil Judges. I understand that there are only totally 3 candidates above me in the merit list. I also understand that they have not sought for appointment. If all the 44 seats are to be filled up, I will get appointed automatically. 5.As on 29.5.2009 there were more than 163 vacancies available and many would have retired. Some would have got promoted since then. Unless the qualified candidates are appointed, the system would come to a stand still." 10.In response to these allegations, in the rejoinder in paragraph 4, it was averred as follows: "4.....it is submitted that the Commission in its Notification viz., Advertisement No.112 dated 25.5.2007, itself at 'Note (iv)' to para 3 has clearly stated that the number of vacancies advertised is only approximate and is liable to modification with reference to vacancy position at any time before or at the time of actual recruitment. The candidates who applied for the above recruitment were put on notice of the above provisions made in the Notification and this is borne out by the declaration made by the candidates in the OMR https://hcservices.ecourts.gov.in/hcservices/ application to the effect that they had gone through the Commission's Notification etc., before filling up the application form. Further, the modification in the number of vacancies as above was necessitated by the orders dated 28.08.2007 of the Hon'ble High Court of Madras in Writ Appeal No.891-893/2007 wherein the orders of the Hon'ble High Court of Madras dated 27.04.2006 in W.P.No.6085/2004 and 9823/2007 and orders dated 21.06.06 in W.P.No.11234/2004 filed by three candidates who were placed in the Reserve List in respect of the Selection made for the year 1998- 2002 for the post of Assistant Public Prosecutor, Grade-II were confirmed. The SLP filed by the Commission/Government in the Supreme Court against the orders of the Hon'ble High Court in Writ Appeal Nos.891-893/07 was dismissed/ As the joined and left vacancies contended by the petitioners in W.P.Nos.6085/2004, 9823/2004 and 11234/2004 against which they were ordered to be selected in the said writ petitions have already been taken into account in the subsequent estimate of vacancies for the post of APP, Grade-II (i.e. 22 vacancies for which selection has already been finalized and 44 vacancies for which Notification was issued on 25.05.2007). The Government in G.O.(4D)No.104, Home (Court-VI), Department dated 05.12.2007 have issued the following order:- "....The above three vacancies shall be adjusted in the subsequent estimate of vacancies (44 vacancies) furnished to the Tamil Nadu Public Service Commission for the years 2003-2004, 2004-05, 2005-06 in the respective class components in the pending recruitment". Consequently, the vacancies were modified as 41 and one vacancy in the B.C. Category has been ordered to be kept vacant as per the orders dated 08.09.2008 of the Hon'ble High Court of Madras in M.P.No.3/2008 in W.P.No.21873/2008 filed by Thiru.R.Srinivasan and the vacancies have been modified as 40. Further, the fact that out of 9 vacancies reserved for MBC/DC category, 1 vacancy is reserved for physically Handicapped (Deaf) was very well incorporated in the Notification in para 3. Hence, the contention of the petitioner that the said vacancy was not specified in the advertisement is false and misleading." https://hcservices.ecourts.gov.in/hcservices/ 11.In response to the averments made in paragraph 4 of the reply affidavit, in paragraph 6 of the rejoinder of the TNPSC, it was stated as follows: "6.....it is submitted that the term 'cut-off mark' is used only to refer to the mark secured by the last candidate in each reservation group. Out of the vacancies caused due to not joined (six candidates) and joined duty but relieved thereafter (six candidates) in favour of whom selection was made from the reserve list/ranking list, only two vacancies fell in the B.C. (General) category. Hence, the following two candidates were selected supplementally:- Register No. Marks Secured Category 01701072 213.00 B.C. 01002210 212.00 B.C. As the petitioner has secured only 197.00 marks he has not reached the zone of selection either for placement in the selection list or reserve list/supplemental selection list. It is further submitted that presently there are seven candidates in the B.C. (General) category in the ranking (merit) list above the petitioner." 12.With reference to assertion that reserve list can be continued to be operated, in paragraph 7, the TNPSC had stated as follows: "7....it is submitted that though there may be so many vacancies in a given date, the Commission can operate the Reserve List only against the vacancies that arise due to non joining duty, joined and left and cancellation of selection of those included in the Selection list for a particular estimate year(s) based on the Notification. It has been reiterated by the Supreme Court in a number of cases pertaining to operation of Reserve List that the Reserve List can be operated only against the estimated vacancies for which selection was initially made." 13.It is no doubt true that after notification was made by TNPSC calling for applications, the State Government has issued G.O.4(D) No.104, Home Department, dated 5.12.2007. In that order, the State Government wanted to give effect to the order passed by a division bench of this court in W.A.Nos.891 to 893 of 2007, dated 28.8.2007. In paragraph 5 of the Government order, it was ordered as follows: https://hcservices.ecourts.gov.in/hcservices/ "5.The Government have examined the matter in detail and decided to implement the orders of High Court, Madras dated 28.8.2007 in W.A.No.891-893/2007. Accordingly, the Government direct that Tvl.R.Nagarajan, S.Rajan and S.Manual Arasu who are in the reserve list for selection to the post of Assistant Public Prosecutor Grade II by Tamil Nadu Public Service Commission for the year 1998-2002 as indicated at paragraph 4 above, be appointed as Assistant Public Prosecutor Grade II, in the Prosecution Department, subject to fulfillment of other formalities prescribed therefore for the appointment. The above three vacancies shall be adjusted in the subsequent estimate of vacancies (44 vacancies) furnished to the Tamil Nadu Public Service Commission for the years 2003-2004, 2004-2005, 2005- 2006, in the respective class components in the pending recruitment." 14.The State Government which was drawn into the legal litigation by certain candidates is bound to implement the order of this Court. The Government Order is not under challenge. The said Government Order cannot be said to be an interference to the process of selection in its mid way, because candidates in that case who were competing for selection made for the years 1998-2002, got orders in their favour. Therefore, for all practical reasons, there were only 41 vacancies. The petitioner was unable to point out that he has come within the zone of consideration. As rightly contended by the TNPSC, he had only secured 197 marks. The last candidate who ws selected even under the reserve list had secured 212 marks for BC General category. 15.It is admitted by the petitioner that a fresh advertisement was issued by the TNPSC calling for applications for the post of Assistant Public Prosecutor-Grade II pursuant to the notification dated 25.5.2007. Therefore, the petitioner cannot come to this court and seek for direction to include his name in the select list when he was not coming within the zone of consideration as per the select list published by the TNPSC. The Reserve list can be operated only if candidates joined or left or if they did not join. Therefore, in view of vacancies even supplemental list can also be operated by the TNSPC. In this context, it is necessary to refer to certain decisions of the Supreme Court which may have bearing to the present case. 16.The Supreme Court has held that once posts were newly advertised the currency of the select list will expire and no appointment can be made beyond the number of vacancies notified. In this context, it is necessary to refer to the following passage found in paragraph 33 of the judgment in Mukul Saikia v. State of Assam reported in (2009) 1 SCC 386, which is as follows: https://hcservices.ecourts.gov.in/hcservices/ "33. At the outset it should be noticed that the select list prepared by APSC could be used to fill the notified vacancies and not future vacancies. If the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised, even though APSC had prepared a select list of 64 candidates. The select list got exhausted when all the 27 posts were filled. Thereafter, the candidates below the 27 appointed candidates have no right to claim appointment to any vacancy in regard to which selection was not held. The fact that evidently and admittedly the names of the appellants appeared in the select list dated 17-7-2000 below the persons who have been appointed on merit against the said 27 vacancies, and as such they could not have been appointed in excess of the number of posts advertised as the currency of select list had expired as soon as the number of posts advertised are filled up, therefore, appointments beyond the number of posts advertised would amount to filling up future vacancies meant for direct candidates in violation of quota rules. Therefore, the appellants are not entitled to claim any relief for themselves. The question that remains for consideration is whether there is any ground for challenging the regularisation of the private respondents." In the present case, there is no dispute that after the reduction of vacancies made by the State Government, there were only 41 posts available. 17.Similarly, the Supreme Court in Girdhar Kumar Dadhich v. State of Rajasthan reported in (2009) 2 SCC 706, in paragraph 15 had observed that even in such cases, when there is no challenge to the already filled up vacancies and the selected candidates are not made as parties, no consideration can be made with reference to select list. Hence it is necessary to refer to the following passage found in paragraph 15 of the said judgment, which is as follows: "15. It is stated that two appointments were made in the year 2003—one against OBC quota and another against general quota. It is not possible for us to go into the question as to whether the entire quota for appointment in the category of OBC was filled up in the year 1998-1999 itself and thus appointment made against the vacant post from the said quota is illegal or not. The respondents concerned are not parties before us. We have not been informed as to whether any other person has been left out from the original merit list." https://hcservices.ecourts.gov.in/hcservices/ 18.The Supreme Court also held that arguments based upon Article 14 of the Constitution cannot be stretched too far and there must be judicial restraint on administrative decisions. Therefore, reduction of number of vacancies notified cannot be gone into by this court. In this context, it is necessary to refer to the judgment of the Supreme Court in Dilip Kumar Garg v. State of U.P., reported in (2009) 4 SCC 753. The following passages found in paragraphs 15 to 17 may be usefully extracted below: "15. In our opinion Article 14 should not be stretched too far, otherwise it will make the functioning of the administration impossible. The administrative authorities are in the best position to decide the requisite qualifications for promotion from Junior Engineer to Assistant Engineer, and it is not for this Court to sit over their decision like a court of appeal. The administrative authorities have experience in administration, and the Court must respect this, and should not interfere readily with administrative decisions. (See Union of India v. Pushpa Rani8 and Official Liquidator v. Dayanand9.) 16. The decision to treat all Junior Engineers, whether degree-holders or diploma-holders, as equals for the purpose of promotion is a policy decision, and it is well settled that this Court should not ordinarily interfere in policy decisions unless there is clear violation of some constitutional provision or the statute. We find no such violation in this case. 17. In Tata Cellular v. Union of India10 it has been held that there should be judicial restraint in administrative decision. This principle will apply all the more to a rule under Article 309 of the Constitution." 19.In the light of the factual matrix involved and the legal precedents, there is no case made out to entertain the writ petition. Accordingly, the writ petition will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petition stands closed. sd/- Asst.Registrar /True copy/ Sub.Asst.Registrar vvk https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary, The State of Tamil Nadu, Law Department, Fort St. George, Chennai-600 009. 2. The Secretary, Tamil Nadu Public Service Commission, Omandurar Government Estate, Chennai-600 002. 3. The Controller of Examinations, TNPSC, Omandurar Government Estate, Chennai-600 002. + 1 c.c. to Mrs. R. Meenal, Advocate. S.R.No.40625. W.P.NO.30271 OF 2008 BS (CO) GSK 15.06.2010. https://hcservices.ecourts.gov.in/hcservices/