IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.02.2010 CORAM THE HON'BLE MR.JUSTICE T.S.SIVAGNANAM W.P.NOS.24804, 24805, 25424, 26313, 26033 & 24813 OF 2009 AND 408, 195, 196 & 1932 OF 2010 A.Jayakumar ..Petitioner in W.P.No.24804/2009 N.Raja ..Petitioner in W.P.No.24805/2009 N.Rajesh Kanna ..Petitioner in W.P.No.25424/2009 B.Mohan ..Petitioner in W.P.No.26313/2009 S.Subapriya ..Petitioner in W.P.No.26033/2009 K.Velusamy ..Petitioner in W.P.No.24813/2009 N.Kalidoss ..Petitioner in W.P.No.408/2010 G.Kavitha ..Petitioner in W.P.No.195/2010 R.Sivakumar ..Petitioner in W.P.No.196/2010 G.Sathiyanarayan ..Petitioner in W.P.No.1932/2010 Vs. 1.The Government of Tamil Nadu represented by the Chief Secretary Secretariat, Fort St. George, Chennai – 9 2.The Secretary Personnel & Administrative Reforms Dept. Secretariat, Fort St. George, Chennai – 9 3.The Secretary Tamil Nadu Public Service Commission Chennai – 2 4.The Principal Secretary to Government Revenue Department, Secretariat Fort St. George, Chennai – 9 5.The Principal Secretary to Government Home Department, Secretariat Fort St. George, Chennai – 9 https://hcservices.ecourts.gov.in/hcservices/ 6.The Principal Secretary to Government Commercial Taxes & Registration (E) Dept. Secretariat, Fort St. George, Chennai – 9 7.The Principal Secretary to Government Cooperation, Food & Consumer Protection (CD-1) Department, Secretariat Fort St. George, Chennai – 9 8.The Principal Secretary to Government Rural Development & Panchayat Raj (E1) Department, Secretariat Fort St. George, Chennai – 9 9.The Principal Secretary to Government Employment & Training Department Secretariat, Fort St. George, Chennai - 9 10.T.Sengottaiyan 11.S.Shanthi 12.I.Anandakumar 13.V.Manikandan R10-R13 impleaded as per order of this court dated 05.02.2010) ..Respondents 1 to 13 in WP.24804/09 Respondents 1 5to 9 in WP.24805/09 25424/09, 26033/09, 24813/09 Respondents 1 to 3 in WP.26313/09 408/10, 195/10, 196/10 and 1932/10 Prayer: Writ petitions under Article 226 of the Constitution of India praying to issue writs of mandamus forbearing the third respondent from publishing the final select list cum allotment order for the Group-I Services Examination for the years 2007 – 2008, 2008 – 2009 till such time all the vacancies created in the Group-I Services for the year 2006-2007 due to the non-joining of selected / recommended candidates are filled up from the reserve list and ranking list drawn for this recruitment. For Petitioners : Mr.AR.L.Sundaresan, SC for in W.PNos.24804, 25424, : Mr.P.K.Rajesh Praveen Kumar 26313, 26033 and 24813/09 and 408, 195 and 196/10 For Petitioner in W.P.No.24805 of 2009 : Mr.K.Sreenivasamurthy for M/s.Row & Reddy https://hcservices.ecourts.gov.in/hcservices/ For Petitioner in W.P.No.1932 of 2010 : Mr.J.Ponnudurai For RR1, 2 & 4 to 9 : Mr.P.Subramanian, AGP (Government Departments) For Third Respondent : Mr.A.L.Somayaji, SC for in all petitions Ms.C.N.G.Niraimathi, Standing Counsel for TNPSC For R10 to R13 : Mr.R.Muthukumarasamy, SC for in WP.No.24804/08 : Mr.M.Karthikeyan COMMON ORDER By consent, the main writ petitions are taken up for disposal. The petitioners have filed the above writ petitions to forbear the third respondent / TNPSC from publishing the final select list cum allotment order for Group-I Services Examination for the recruitment years 2007-2008 and 2008-2009 till such time all the vacancies created in the previous Group-I Services for the year 2006-2007 due to the non-joining of selected/recommended candidates are filled up from the reserve list and ranking list drawn for that recruitment. 2. The case of the petitioners is that, the Tamil Nadu Public Service Commission issued a Notification on 01.08.2007 for filling up 172 posts in Group-I Services for the year 2006-2007 and the petitioners also applied for appointment to the said posts. A preliminary examination was conducted on 24.12.2007. The main written examinations were held on 16.08.2008 and 17.08.2008 and the petitioners having been successful in both these examinations, were called for a oral test on 26.12.2008. Thereafter, marks were published on 03.01.2009 and the allotment order was published on 03.06.2009. According to the petitioner in W.P.No.24804/2009, he is a Most Backward Community candidate and has scored 403 marks in Group-I Services for the year 2006-2007 in the MBC General Category; he has secured the post of Divisional Fire Officer; the MBC candidate who scored 402.5 is placed in the reserve list and his name does not figure in the reserve list though he is in the 5th place in the ranking list beyond the selection list. It is further stated that there are totally 172 posts to be filled up in the said recruitment and since all the selected candidates may not accept the appointment due to various reasons, such post has to be filled up from the reserve list / rank list drawn for this purpose. The vacancies, which arise on account of non-joining of selected candidates, have to be filled up from the reserve list drawn for such purpose. It is further stated that in terms of Rule 15-A of the Tamil Nadu State & Subordinate Services Rules, the respondents are bound to maintain a https://hcservices.ecourts.gov.in/hcservices/ reserve list of 25% of the candidates of each reservation group including General Turn in the regular list and shall be in force until the regular list is drawn up subsequently. This Rule came to be amended to the above effect by G.O.Ms.No.146, Personnel & Administrative Reforms (S) dated 13.09.2006. Therefore the petitioners would contend that due to legal proceedings, which were initiated by unsuccessful candidates, the whole procedure was delayed and the results were published only on 03.06.2009. But the same was not given effect to due to the interim orders granted by this court and ultimately, after the Hon'ble First Bench by order dated 17.09.2009 upheld the selection, the list was operated and by virtue of Rule 15-A of the said Rules, once the new selection list is published, the reserve list would not be operated. It is further contended that the reserve list consists of register numbers of candidates who are already in the selection list viz., reserve list for the post of Deputy Collector consists of selected candidates from the post of Deputy Superintendent of Police, the reserve list for the post of Deputy Superintendent of Police consists of selected candidates from the post of Commercial Tax Officer and so on and so forth and only 15 register numbers in the reserve list are non- selected candidates or candidates below the last recommended candidate in the order of merit. Therefore it is contended that the manner in which the reserve list has been preferred itself is untenable and the respondents are bound to maintain a clear reserve list in the order of merit where eligible and qualified candidates are placed below the last selected candidate. 3. The petitioner in W.P.No.24805/2009 would submit that he is a Most Backward Community candidate and his name is first in the reserve list for Divisional Officer in the Fire and Rescue Service Department in the Tamil Nadu Fire and Rescue Service. Apart from the grounds raised in the other writ petition, the petitioner in this writ petition would further contend that as far as Divisional Officer in the Fire and Rescue Service Department in the Tamil Nadu Fire and Rescue Service, where the petitioner is in the reserve list, appointment orders are yet to be issued and in the case of Deputy Collectors, appointment orders have been issued and despatched only on 27.11.2009. The petitioners in the remaining writ petitions have also raised almost similar grounds as raised by the petitioners in the above two writ petitions. 4. Mr.AR.L.Sundaresan, learned senior counsel appearing for the petitioners, after reiterating the submissions made in the affidavit filed in support of the writ petitions, would contend that if the reserve list is not operated by stating that a new list for the years 2007-2008 and 2008-2009 is being published, then by the effect of Rule 15-A of the said Rules the said list would lapse, would be unreasonable, especially in the given facts and circumstances of the case and prolonged litigation. He would further submit that vacancies which arise out of the 172 posts upto the date of https://hcservices.ecourts.gov.in/hcservices/ publication of the results of selection for the recruitment years 2007-2008 and 2008-2009, should be operated from the reserve list prepared for 172 posts. It is further submitted that this shall also include the cases where results are withheld for reasons assigned by the TNPSC. Learned senior counsel placed reliance on a Division Bench judgment of this court in the case reported in (2009) 5 MLJ 727 (Secretary, TNPSC Vs. Secretary to Government). 5. The Tamil Nadu Public Service Commission has filed a common counter affidavit in respect of all the writ petitions. According to the TNPSC, the writ petitioners have no legal right to forbear the Commission from publishing the final select list for Group-I Services Examination for the years 2007-2008 and 2008-2009 till such time all the vacancies created in the previous Group-I Services for the year 2006-2007 due to the non-joining of selected / recommended candidates are filled up from the reserve list and ranking list drawn for the year 2006-2007. It is further stated that the preliminary examination for Group-I Services Examination for the years 2007-2008 and 2008-2009 was held on 12.04.2009 and results were published on 04.08.2009. Thereafter, main written examination was conducted on 03.10.2009 and 04.10.2009 and oral test was conducted on 03.12.2009 and 04.12.2009. After the conduct of the oral test, the marks secured by the candidates, who appeared in the oral test as well as in the written examination were published by the TNPSC on 04.12.2009 and the select list was ready to be drawn on 09.12.2009. At that stage of the matter, the writ petitions were filed and interim orders were granted by this court, due to which, the select list for the years 2007-2008 and 2008-2009 was not published. 6. On the merits of the contentions raised by the petitioners, TNPSC would submit that if the select list for the years 2007-2008 and 2008-2009 is published, then the life of the reserve list prepared for the year 2006-2007 would lapse by virtue of Sub-Rule 15-A in Rule 2 in Part-1 Preliminary of the Tamil Nadu State & Subordinate Service Rules since the Rule stipulates the validity of the reserve list. Therefore it is contended that the petitioners cannot raise a contention that the TNPSC should operate the reserve list in violation of the said Rule. It is further submitted that recruitment for the years 2007-2008 and 2008-2009 was for filling up of 82 posts in Group-I Services category and the TNPSC selected 82 candidates and because of the interim orders, results could not be published. Answering the grounds raised in the writ petitions as well as the contentions raised by the learned counsel appearing for the petitioners, TNPSC would contend that selection for Group-I services Examination comprises of selection to more than one post coming under Group-I Services depending on the vacancies which are intimated to the TNPSC by the Government.. For the year 2006-2007, Notification was issued for appointment of 172 posts in the following eight categories: https://hcservices.ecourts.gov.in/hcservices/ (1) Deputy Collector (2) Deputy Superintendent of Police (Category-I) (3) Commercial Tax Officer (4) Deputy Registrar of Co-operative Societies (5) District Registrar (6) Assistant Director of Rural Development Department (Panchayat) / Personal Assistant (Development) to Collector (7) District Employment Officer (8) Divisional Officer in the Fire & Rescue Services Department As per the procedure notified, one common/combined examination (Preliminary examination, main examination and oral test in the shape of an interview) is conducted for all participants for selection against various posts. The candidates are required to give their order of preference to which they seek to be appointed. After the conduct of the examination and oral test, the Commission prepares the ranking list based on the marks scored by the candidates and the first six candidates, irrespective of the community and the gender to which they belong, were selected against General Turn-General as the number of vacancies against GT-G for the post of Deputy Collector was six and all the first six rank holders gave their first preference for the post of Deputy Collector. Thereafter, three women candidates who gave their first preference for the post of Deputy Collector were selected against GT Women for three posts reserved for GT-W in the post of Deputy Collector. The BC and MBC candidates intervening in the ranking list and who gave their preference for the post of Deputy Collector were selected against their communal turn. The BC candidate who stood next in rank after the last BC candidate selected against BC-G 6/6 has been selected to the post of CTO against GT-G-1/10 i.e., 10 vacancies in General Turn for the post of CTO and his choice of preference was Deputy Collector, Commercial Tax Officer, etc., Further, he has been placed in reserve list No.1 for the post of Deputy Collector both under the category of GT-G-001 and BC-G 001. In the like manner, two more BC candidates selected for the post of Assistant Director of Rural Development Department against GT-G 1/6 ( and DSP against GT-G 1/7 have been placed in the reserve list for the post of Deputy Collector at S.Nos.2 and 3 in view of the fact that their order of preference was firstly for the post of Deputy Collector and secondly for the post of Assistant Director of Rural Development Department and Deputy Superintendent of Police respectively. It is further submitted that, though in respect of selection for the year 2006-2007 the TNPSC is required to prepare a reserve list of 25% of the candidates as per Sub-Rule 15-A in Rule 2 in Part-I Preliminary of the said Rules, the Commission took a policy decision and placed 50% of the candidates in the reserve list under each communal category and for each post. This is the reason why three candidates were placed in the reserve list against GT-G RL001 to 003 whereas the actual requirement as per the https://hcservices.ecourts.gov.in/hcservices/ Rule is only 1.5 or maximum of 2. In the counter affidavit, the details regarding the reserve list have been set out. It is further contended that the name of the petitioners mentioned against serial Nos.6 and 7 viz., Assistant Director of Rural Development Department and District Employment Officer cannot contend that 25% of the candidates who are not at all selected for any post alone should be placed in the reserve list in a particular post and they alone should be considered against any vacancy arising in preference to other similarly placed candidates. Based on the above facts, learned standing counsel appearing for the TNPSC would contend that the petitioners have no locus standi to maintain the writ petitions and they are guilty of laches in the sense that the reserve list position was made available to all the candidates as early as 03.06.2009 but they have chosen to approach this court only in December 2009 and have sought for an interim order. 7. Four candidates have filed M.P.No.1/2010 in W.P.No.24804/2009 to implead themselves as party respondents in the said writ petition. These four persons are candidates who participated in the selection for Group-I Services Examination for the years 2007-2008 and 2008-2009. According to them, their names find place in the final list of successful candidates for appointment and in view of the interim order, results have not been published and therefore they are before this court seeking to implead themselves as party respondents. They also seek to vacate the interim order granted by this court. Mr.R.Muthukumarasamy, learned senior counsel appearing for the impleading parties would contend that the petitioners in the writ petitions have no locus standi to withhold the selection by seeking for an interim order since the impleading parties have competed for selection which was done during the years 2007-2008 and 2008-2009 in respect of 82 posts falling under Group-I Services. Therefore learned senior counsel would submit that the interim orders are working against the proposed parties and it requires to be vacated. On the legal issue, learned senior counsel would submit that the Hon'ble Supreme Court in the case reported in (1994) Supp (2) SCC 591 (Gujarat State Deputy Xen Association Vs. State of Gujarat) dealt with the aspect viz., "what is a waiting list and in paragraph Nos.8 and 9, the Supreme Court had held as follows: "8. Coming to the next issue, the first question is what is a waiting list?; can it be treated as a source of recruitment from which candidates may be drawn as and when necessary?; and lastly how long can it operate? These are some important questions which do arise as a result of direction issued by the High Court. A waiting list prepared in service matters by the competent authority is a list of eligible and qualified candidates who in order of merit are https://hcservices.ecourts.gov.in/hcservices/ placed below the last selected candidate. How it should operate and what is its nature may be governed by the rules. Usually it is linked with the selection or examination for which it is prepared. For instance, if an examination is held say for selecting 10 candidates for 1990 and the competent authority prepares a waiting list then it is in respect of those 10 seats only for which selection or competition was held. Reason for it is that whenever selection is held, except where it is for single post, it is normally held by taking into account not only the number of vacancies existing on the date when advertisement is issued or applications are invited but even those which are likely to arise in future within one year or so due to retirement etc. It is more so where selections are held regularly by the Commission. Such lists are prepared either under the rules or even otherwise mainly to ensure that the working in the office does not suffer if the selected candidates do not join for one or the other reason or the next selection or examination is not held soon. A candidate in the waiting list in the order of merit has a right to claim that he may be appointed if one or the other selected candidate does not join. But once the selected candidates join and no vacancy arises due to resignation, etc., or for any other reason within the period the list is to operate under the rules or within reasonable period where no specific period is provided then candidate from the waiting list has no right to claim appointment to any future vacancy which may arise unless the selection was held for it. He has no vested right except to the limited extent, indicated above, or when the appointing authority acts arbitrarily and makes appointment from the waiting list by picking and choosing for extraneous reasons. 9. A waiting list prepared in an examination conducted by the Commission does not furnish a source or recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. But the view taken by the High https://hcservices.ecourts.gov.in/hcservices/ Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice may result in depriving those candidates who become eligible for competing for the vacancies available in future. If the waiting list in one examination was to operate as an infinite stock for appointments, there is a danger that the device of not holding an examination for years together and pick up candidates from the waiting list as and when required. The constitutional discipline requires that this court should not permit such improper exercise of power which may result in creating a vested interest and perpetrate waiting list for the candidates of one examination at the cost of the entire set of fresh candidates either from the open or even from service." The rights of a wait listed candidates was also elaborately discussed by the Hon'ble Supreme Court in the said judgment. Learned senior counsel also placed reliance on the judgment of the Hon'ble Supreme Court of India in the case reported in Madan Lal & Others Vs. State of J & K & Others ( (1995) 3 SCC 486), wherein the Supreme Court observed that "the life of a selection list gets exhausted the moment all vacancies are filled up or after the expiry of one year, whichever is earlier". Learned senior counsel would also place reliance on the judgment of the Hon'ble Supreme Court of India in the case reported in 1997 (8) SCC 488 (Surinder Singh & Others Vs. State of Punjab & Another), which had been rendered following the case reported in Gujarat State Deputy Xen Association Vs. State of Gujarat referred to supra. Learned senior counsel would also place reliance on the latest decision of the Hon'ble Supreme Court of India dated 01.02.2010 in SL.P.Nos.14852 to 14854/2008 in Rakhi Ray & Others Vs. The High Court of Delhi & Others in support of his contention that there is no vested right in a wait-listed candidate. Therefore the learned senior counsel would submit that the interim orders already granted by this court are liable to be vacated. 8. I have considered the submissions made by the learned counsel appearing on either side and perused the entire materials available on record. 9. Elaborate arguments were advanced by Mr.AR.L.Sundaresan, learned senior counsel appearing for the petitioners; Mr.R.Muthukumaraswamy, learned senior counsel appearing for the impleading parties as well as Mr.A.L.Somayaji, learned senior counsel and Ms.C.N.G.Niraimathi, learned standing counsel appearing for the https://hcservices.ecourts.gov.in/hcservices/ TNPSC. The following three issues arise for consideration in these writ petitions: (1) Whether the reserve list, which has been prepared by the TNPSC for the selection conducted during 2006-2007 would lapse on the publication of results of the subsequent selection for the years 2007-2008 and 2008-2009? (2) The manner in which the reserve list is to be prepared? (3) What are the rights of a wait-listed candidate? 10. It would be useful to decide the third question first. In my view, this question is no longer res integra in view of the decisions placed before this court by the learned senior counsel appearing for the impleading parties. The Hon'ble Supreme Court of India in the cases referred to above has held that "wait-list" cannot be treated as a source of recruitment from which candidates may be drawn as and when necessary and a waiting list prepared in service matters by competent authority is a list of eligible and qualified candidates who, in the order of merit, are placed below the last selected candidate. Further, the Hon'ble Supreme Court has held that a candidate in the waiting list in the order of merit has a right to claim that he may be appointed if one or the other selected candidate does not join. But once the selected candidates join and no vacancy arises due to resignation, etc., or for any other reason within the period the list is to operate under the rules or within reasonable period where no specific period is provided, then candidate from the waiting list has no right to claim appointment to any future vacancy which may arise unless the selection was held for it. Therefore the Hon'ble Supreme Court held that there is no vested right except to the limited extent as indicated above. This position of law has been consistently reiterated by the Hon'ble Supreme Court of India and the latest of that being in the case of Rakhi Ray & Others Vs. The High Court of Delhi & Others dated 01.02.2010. The Supreme Court, after referring to catena of decisions on the point, held that in the case vacancies notified stand filled up, process of selection comes to an end; waiting list cannot be used as a reservoir, to fill up the vacancy which comes into existence after the issuance of the Notification/advertisement and that the un- exhausted select list / waiting list becomes meaningless and cannot be pressed into service. Therefore there cannot be any controversy on this issue