IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.08.2008 C O R A M: THE HONOURABLE MR.A.K.GANGULY, CHIEF JUSTICE and THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA W.A.Nos.370 & 371 of 2008 and W.P.No.34617 of 2007 and M.P.Nos.1 of 2007 and 1 of 2008 W.A.Nos.370 & 371 of 2008 K.Nehru .. Appellant in both the W.As. -Vs- 1. The State of Tamil Nadu represented by its Secretary to Government, Labour and Employment Department, Fort St. George, Chennai-600 009. 2. The Management of Tamil Nadu Pollution Control Board, represented by its Member-Secretary, No.76, Anna Salai, Guindy, Chennai – 600 032. 3. L.Rajagopal 4. S.Stella 5. T.Thilagavathy 6. P.Indira 7. R.Tamil Amudan 8. K.Samuel 9. S.Selvam 10. M.Prema 11. P.Suganthi Rani https://hcservices.ecourts.gov.in/hcservices/ 12. Paul David (RR3 to R12 impleaded as party respondents vide order of Court dated 25.06.2008 made in W.A.Nos.370 & 371 of 2008) ..Respondents in both the W.As Writ Appeal Nos.370 & 371 of 2008 filed against the orders of this Court dated 28.11.2007, in W.P.Nos.27847 & 27647 of 2007 respectively. Petitions filed under Article 226 of the constitution of India seeking for issuance of writ of mandamus, directing the 2nd respondent to appoint the petitioner to the post of Assistant Engineers in the 2nd respondent so and on the basis of the written test written by him on 11.3.2007 and for a declaration, declaring the selection of the Assistant Engineers made by the 2nd respondent on the basis of the interview held on 27.07.2007 by calling for candidates from the employment exchange in the ratio of 1:1 superceding the written test held on 11.3.2007 as violative of articles 14 and 16 of the constitution of India (in WP.Nos.27647 & 27847/07) W.P.No.34617 of 2007 S.Murugan .. Petitioner -Vs- 1. Tamil Nadu Pollution Control Board, Rep. by its Chairman, No.76, Mount Salai, Guindy, Chennai – 600 032. 2. The Member Secretary, Tamil Nadu Pollution Control Board, No.76, Mount Salai, Guindy, Chennai – 600 032. 3. L.Rajagopal 4. S.Stella 5. T.Thilagavathy 6. P.Indira 7. R.Tamil Amudan https://hcservices.ecourts.gov.in/hcservices/ 8. K.Samuel 9. S.Selvam 10. M.Prema 11. P.Suganthi Rani 12. Paul David .. Respondents. Writ Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorarified Mandamus, calling for the records relating to the order bearing Ref.No.TNPCB/Per./P1/26752/07 dated 12.10.2007, passed by the 2nd respondent and to quash the same and for a consequential Mandamus directing 1st and 2nd respondent to consider and select the petitioner on the basis of the G.O.Ms.No.86, dated 12.05.2007, after setting aside the selection of the respondents 3 to 12 as Assistant Engineers, which was based on G.O.Ms.No.65, Labour and Employment Department, dated 30.03.2007. --------------------------------------------------------------------- For Appellant in both the W.As and for the petitioner in W.P. : Mr.N.G.R.Prasad for Mr.S.Ayyathurai For Respondent 1 in both the W.As. : Mr.Raja Kalifulla Government Pleader For R2 in both the W.As and for R1 & R2 in W.P. : Mr.Ramanlal Standing Counsel for TNPCB For R3 to R12 in both the W.As and W.P. : Mr.Balan Haridoss - - - - C O M M O N J U D G M E N T F.M.IBRAHIM KALIFULLA, J. The issue involved in these writ appeals and the writ petition are one and the same and therefore, they are being disposed of by this common judgment. The parties will hereinafter be referred to in the order in which they have been arrayed in the writ appeals. https://hcservices.ecourts.gov.in/hcservices/ 2. The second respondent Tamil Nadu Pollution Control Board (hereinafter referred to as the ‘Board’) called for sponsorship of candidates from the Employment Exchange for recruitment of eligible candidates as per communal roster in the ratio of 1:20 for filling up 25 posts in the cadre of Assistant Engineer. In pursuance to the second respondent's requisition, the Employment Exchange is stated to have sent a list of 501 candidates. The second respondent called upon those candidates to attend a written test to be held on 11.03.2007. Out of 501 candidates, it is stated that only 256 candidates attended the written test. Such list was called for from the Employment Exchange as per Regulation 10 of the Tamil Nadu Pollution Control Board Service Regulations, 1988 (hereinafter referred to as the ‘regulation’). Since as per Regulation 10(2), the Board devised a procedure to hold the written test and interview, the candidates were to be called for an interview after the written test. 3. After the written test was held on 11.03.2007 and before the answer sheets were valued and the date of interview was to be notified, the first respondent Government came forward with G.O.Ms.No.65, Labour and Employment (N2) Department, dated 30.03.2007, in and by which, revised ratio of 1:1 came to be prescribed. As per the revised procedure, for Direct Recruitment, whenever sponsorship is requisitioned from the Employment Exchange, such sponsorship was to be made in the ratio of 1:1 instead of the then existing ratio of 1:20. In the said circumstances, the Board has given a go-by to the steps taken by it for the filling up of the above 25 posts of Assistant Engineer and proceeded to call for fresh sponsorship from the Employment Exchange by restricting it to 1:1 ratio and appointed respondents 3 to 12. Challenging the said appointment, the appellants preferred the writ petitions in W.P.Nos.27847 & 27647 of 2007 respectively, which came to be dismissed by a learned Single Judge by a common order dated 28.11.2007. As against which, the present writ appeals have been preferred. 4. In W.P.No.34617 of 2007 the challenge has been made to the proceedings of the second respondent dated 12.10.2007, by which the second respondent expressed its inability to appoint the writ petitioner since it applied G.O.Ms.No.65, Labour and Employment (N2) Department, dated 30.03.2007, wherein the ratio of 1:1 was introduced as against the existing ratio of 1:20 in filling up of various posts. In these writ appeals, respondents 3 to 12 were subsequently impleaded by an order dated 25.06.2008. 5. We heard Mr.N.G.R.Prasad, learned counsel for the appellants as well as the writ petitioner, Mr.Raja Kalifulla learned Government https://hcservices.ecourts.gov.in/hcservices/ Pleader for the 1st respondent, Mr.Ramanlal, learned standing counsel for the Tamil Nadu Pollution Control Board and Mr.Balan Haridoss for respondents 3 to 12. 6. Mr.N.G.R.Prasad, learned counsel appearing for the appellant in his submissions referred to Regulation 10 and the relevant provision in the Table provided in Part-II ‘D’ of the said Regulations and submitted that the post of 'Assistant Engineer' which has been described as 'Junior Environmental Engineer' is a selection post and it has to be filled up by way of direct recruitment and that under Regulation 10(2), the Board has devised an entrance test and interview for filling up the said post. He also contended that admittedly while arranging for the filling up of the 25 posts of Assistant Engineer, the second respondent applied the said regulation 10 and called for application through Employment Exchange in the ratio of 1:20. He also pointed out that when the Employment Exchange sponsored 501 candidates, of whom 256 appeared for the written test, the second respondent ought not to have aborted the whole procedure prescribed under the Regulations and proceed to appoint respondents 3 to 12 by applying the ratio of 1:1 prescribed in G.O.Ms.No.65, Labour and Employment (N2) Department dated 30.03.2007. He relied upon the decision of the Hon’ble Supreme Court reported in 2002 (2) L.L.N. 33 : 2001 (10) SCC 51 (Maharashtra State Transport Corporation and others Vs. Rajendra Bhimrao Mandve and others) wherein the Hon’ble Supreme Court made it clear that the rules of the games viz., the criteria for selection cannot be altered by the authority concerned in the middle or after the process of selection has commenced. He also relied upon the decisions reported in 2002 2 LLN 33 (Maharashtra State Transport Corporation Vs. Rajendra Bhimrao Mandve), 1999 4 SCC 720 (Rajasthan Agriculture University Vs. Ram Krishna Vyas), 2007 9 SCC 497 (P.Mohanan Pillai Vs. State of Kerala) and 2008 5 MLJ 1252 (R.Amirthaveni and another Vs. District Employment Exchange Officer, Dharmapuri District) in support of his submissions. 7. We heard Mr.Ramanlal, learned standing counsel for the second respondent Board and his contention was that after the process of selection commenced, since G.O.Ms.No.65, dated 30.03.2007 was introduced by the State Government, the second respondent had to necessarily apply the ratio of 1:1 since the said G.O. was applicable to the second respondent. He relied upon the Division Bench decision of this Court, reported in 2008 5 MLJ 1252 (R.Amirthaveni Vs. The District Employment Exchange Officer, Dharmapuri District) wherein the challenge to G.O.Ms.No.65, dated 30.03.2007 came to be made which was also accepted by the Division Bench. According to the learned standing counsel, the Division Bench even while accepting the challenge made to the said G.O., made an observation that whatever appointment came to be made prior to the withdrawal of the said G.O. would hold good and therefore applying the said ratio to the case on hand the appointment of respondents 3 to 12 should not be disturbed. https://hcservices.ecourts.gov.in/hcservices/ He further contended that for the filling up of the remaining vacancies, the second respondent will apply the present G.O.Ms.No.18, Labour and Employment (N2) Department, dated 25.02.2008, prescribing the ratio of 1:5 and make the appointments. 8. At the very outset we reject the contention of the learned standing counsel for the second respondent. It is well settled that once the process of selection commenced, whatever rules and regulations that prevailed as on the date of such commencement would alone rule the field and it is wholly impermissible in law to introduce any change in the rules or apply a different prescription to the selection for which initiation has already been made by the Department. 9. Mr.Balan Haridoss, learned counsel appearing for the respondents 3 to 12 in his submissions argued that there was nothing wrong in the Board having applied the 1:1 ratio as prescribed in G.O.Ms.No.65, dated 30.03.2007, that out of 25 posts only 15 posts have been filed up and therefore the claim of the appellants can be considered in any one of the remaining posts and that in the absence of any challenge to G.O.Ms.No.65, dated 30.03.2007, the contention of the appellant cannot be countenanced. The learned counsel also contended that the respondents 3 to 12 having been appointed, their appointment should not be disturbed on equitable principles. The learned counsel relied upon the decisions reported in 1994 6 SCC 151 (State of M.P. and others Vs. Raghuveer Singh Yadav and others), 1992 2 LLJ 18 (Shankarasan Dash Vs. Union of India) and 1993 2 LLJ 1043 (Union Territory of Chandigarh Vs. Dilbagh Singh & Ors) to support his stand. 10. Before dealing with the contentions of the learned counsel, it will be relevant to note that by G.O.Ms.No.18, dated 25.02.2008, G.O.Ms.No.65, dated 30.03.2007, the Government letter No.2167/N2/2007-2, L & E, dated 25.04.2007, as well as G.O.Ms.No.86, dated 12.05.2007, were superseded and the State Government directed that sponsorship of candidates should be in the ratio of 1:5. The Division Bench of this Court while considering the validity of G.O.Ms.No.65, dated 30.03.2007, took note of the emergence of G.O.Ms.No.18, dated 25.02.2008 and held as under in paragraph 20: “20......So far as G.O.Ms.No.65, Labour and Employment (N.2) Department, dated 30.03.2007 is concerned, as consideration of one name against one vacancy will amount to “no selection” in the eye of law, the said G.O. being violative of Articles 14 and 16 of the Constitution of India, was rightly recalled by the State. No person can claim appointment on the basis of the earlier G.O.Ms.No.65, even if the names were called for prior to 25.02.2008, but selection has not yet been made.......” https://hcservices.ecourts.gov.in/hcservices/ By referring to the said passage, the learned standing counsel for the Board contended that, the Division Bench has only stated that if selection has not been made based on G.O.Ms.No.65, dated 30.03.2007, no claim for appointment can be entertained and since the appointment of respondents 3 to 12 had already come into existence i.e. prior to the withdrawal of G.O.Ms.No.65, their appointment should not be disturbed. 11. As held earlier, we are not in a position to accept such a contention made on behalf of the second respondent. Even going by the dictum of the Division Bench, as consideration of one name against one vacancy will amount to 'no selection' in the eye of law since the very G.O. Ms.No.65, dated 30.03.2007, violates Article 14 and 16 of the Constitution of India, it will have to be held that any selection made based on the said G.O. should automatically fall to the ground. In other words when the Division Bench has declared in no uncertain terms that the prescription of 1:1 ratio was constitutionally invalid, there is no question of validating any appointment made applying the said ratio after its withdrawal even if the selection came to be made prior to its withdrawal. To put it differently when a provision has been held to be constitutionally invalid, it will be travesty of justice to approve of any action based on such invalid provision. We therefore reject the said contention made on behalf of the second respondent. 12. When the submissions of Mr.Balan Haridoss, learned counsel appearing for the respondents 3 to 12 is considered, we are unable to appreciate any of his submissions, in as much as, the appointment of respondents 3 to 12 was in total violation of Regulation 10 and the relevant Annexures relating to the said Regulation. Further when once the selection process commenced by applying the set of rules that was prevailing as on the date of such commencement, the Department cannot be permitted to alter the prescribed rules and resort to make the selection based on any altered rules. As held by us earlier, indisputably as on the date of commencement of the selection process, the prescribed ratio was 1:20. In fact, candidates were sponsored by the Employment Exchange in that ratio and the written test as prescribed under Regulation 10(2) was also held on 11.03.2007. Therefore, there was no authority for the Board to deviate from the said prescribed procedure and apply a different ratio of 1:1 for appointing respondents 3 to 12. In this context, the principle set down by the Hon'ble Supreme Court in the decision reported in 2002 (2) L.L.N. 33 (Maharashtra State Transport Corporation and others Vs. Rajendra Bhimrao Mandve and others) assumes significance. The Hon'ble Supreme Court made it clear that the rules of the game viz., the criteria for selection cannot be altered by the Authority concerned in the middle or after the process of selection has commenced. https://hcservices.ecourts.gov.in/hcservices/ 13. G.O.Ms.No.65, came to be issued by the State Government on 30.03.2007 and the subsequent G.O.Ms.No.86, came to be issued on 15.07.2007. While under G.O.Ms.No.65, it was stated that the Employment Exchange should sponsor candidates to the employers in the ratio of 1:1 as per the seniority of registrants from the live register, as against the existing practice of 1:20 in G.O.Ms.No.86, dated 12.05.2007, it was clarified that even while applying G.O.Ms.No.65, dated 30.03.2007, in order to quicken the process of selection if the Employment Exchange has already sponsored the candidates prior to 30.03.2007, the filling up of the post can be proceeded with based on such sponsorship which came to be made prior to 30.03.2007. In the case on hand, the Board sought for sponsorship of candidates from the Employment Exchange in the month of February, 2007 itself. The candidates were sponsored by the Employment Exchange between February and March 2007 and such sponsored candidates sat for the written test as early as on 11.03.2007. Therefore, even going by G.O.Ms.No.65, dated 30.03.2007, read along with G.O.Ms.No.86, dated 12.05.2007, the Board ought to have proceeded with the selection which commenced long prior to 30.03.2007 and finalise the same for making ultimate appointment. It was unfortunate that the Board which sought for fresh sponsorship from the Employment Exchange by relying upon the proof letter dated 24.06.2007, in the month of July, 2007 in the ratio of 1:1 and appointed respondents 3 to 12 by orders of appointment dated 03.09.2007. Either way, we find that the selection and appointment of respondents 3 to 12 was contrary to the prevailing rules and regulations as well as, G.O.Ms.No.86, dated 12.05.2007. In this context it will be worthwhile to refer to the decision reported in 2007 9 SCC 497 (P.Mohanan Pillai Vs. State of Kerala and Others). In para 11 of the said decision it has been held as under: “11.It is now well settled that ordinarily rules which were prevailing at the time, when the vacancies arose would be adhered to. The qualification must be fixed at that time. The eligibility criteria as also the procedures as were prevailing on the date of vacancy should ordinarily be followed.” The Board has not pointed out any extraordinary circumstances to deviate from the normal rule to appoint respondents 3 to 12. 14. The learned counsel appearing for the respondents 3 to 12 placed reliance upon the decision reported in 1994 6 SCC 151 (State of M.P. and others Vs. Raghuveer Singh Yadav and others). That was a case where the Government chose to withdraw the earlier notification of selection since it was found that subsequent to such notification better qualifications were prescribed and the Government wanted to go in for fresh selection in accordance with the changed rules and make the final recruitment. Thus the facts in that case disclose that the https://hcservices.ecourts.gov.in/hcservices/ earlier notification was cancelled since subsequently better qualifications were prescribed. Therefore, in public employment better qualified persons should always be preferred for efficiency in service. The Hon'ble Supreme Court held that such a situation definitely justified the withdrawal of the earlier notification. Therefore, the said case is no comparison to the case on hand where on the flimsy ground of application of 1:1 ratio, the whole selection process was aborted and appointment of respondents 3 to 12 came to be made. That apart, it is not the case of the Board that 1:1 ratio would enable the Board to go in for better candidates as against the then prescribed rule which provided for the selection to be made from amongst 20 candidates to fill up one single post. It is well known, in the selection process where number of candidates appear for selection, in the process of elimination, the employer will be able to choose the best candidate and that alone would help the establishment to improve its performance. By merely adopting the ratio of 1:1 as against the ratio of 1:20, there would have been no scope for any better selection to be made by the Board in order to state that such a course adopted by the Board cannot be faulted. Therefore, the said decision will have no application to the facts of this case. 15. The learned counsel appearing for the respondents 3 to 12 relied upon the Constitutional Bench judgment of the Hon'ble Supreme Court reported in 1992 (2) L.L.J. 18 (Shankarasan Dash Vs. Union of India). Specific reliance was placed on paragraph 6 of the said judgment which reads as under: “6.it is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana Vs. Subash Chander Marwaha and others (supra), Miss Neelima Shangla Vs. State of Haryana and others (supra), or Jitendra Kumar and others Vs. State of Punjab and others https://hcservices.ecourts.gov.in/hcservices/ (supra).” In the first place, the respondents have no locus to non-suit the appellants / petitioner by applying the above principle set down by the Hon'ble Supreme Court, in as much as, the very induction of respondents 3 to 12 was made by the Board by adopting a dubious method of adopting the ratio of 1:1. Even applying the above principle laid down by the Hon'ble Supreme Court it will have to be held that there was no bona fide in the action of the second respondent Board in abruptly switching over to a different ratio after considerable developments have taken place in the selection process. It will have to be held that by resorting to such a method in the appointment of respondents 3 to 12, the arbitrariness in the action of the Board was writ large. The further principle laid down in the said decision to the effect that the State is bound to respect the comparative merits of the candidates as reflected at the recruitment test would only go to show that there cannot be an appointment without resorting to the method of selection from among different candidates. Therefore, the said decision far from supporting the case of the respondents 3 to 12 only supports the case of the appellants. 16. The learned counsel appearing for the respondents 3 to 12 relied upon the ratio laid down by the Hon'ble Supreme Court in 1993 II L.L.J. 1043 (Union Territory of Chandigarh Vs. Dilbagh Singh & Ors.). The said ratio has no application to the case on hand and therefore the same is of no assistance to the respondents 3 to 12. 17. Therefore, looked at from any angle, the contention of the learned standing counsel for the second respondent and respondents 3 to 12 to sustain the appointment of respondents 3 to 12 by relying upon G.O.Ms.No.65, dated 30.02.2007, is wholly impermissible in law and cannot be countenanced. 18. The submissions of the learned counsel for the respondents 3 to 12 based on equity cannot also be accepted when the very selection of respondents 3 to 12 came to be made arbitrarily against all the principles of valid selection. In the matter of appointment to public posts when flagrant violation of the Rules is noted, they are not entitled for any equitable treatment. The contention of the learned counsel that they were senior most registrants in the Employment Exchange cannot be a ground to sustain their appointment when such appointment was based on an invalid G.O. which was held to be violative of Article 14 and 16 of the Constitution of India. The question of equity will arise if at all there was any semblance of legality in their appointment. When their appointments were on the face of it illegal and contrary to the prescribed rules and regulations, they cannot be heard to say that irrespective of the said illegality their appointment should be allowed to stand. We are not therefore persuaded to accede to the said submission of the https://hcservices.ecourts.gov.in/hcservices/ learned counsel based on equitable principles. 19. Having regard to our above conclusion, the order of the learned single Judge in having accepted the stand of the second respondent to sustain the appointment of respondents 3 to 12 cannot therefore be allowed to stand. For the very same reason, communication of the second respondent dated 12.10.2007, rejecting the representation of the petitioner in that writ petition cannot also be sustained. 20. In fine, we set aside the impugned proceedings of the second respondent dated 12.10.2007, as well as the appointment of