IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.4.2007 CORAM: THE HONOURABLE MR.JUSTICE DHARMARAO ELIPE AND THE HONOURABLE MR.JUSTICE S.PALANIVELU Writ Petitions No.22770 and 22940 of 2003 AND W.P.M.P.Nos.28161 and 28369 of 2003 W.P.No.22770 of 2003: R.Rajasekar ... Petitioner Vs. 1.The Secretary, Tamilnadu Public Services Commission, Government Estate, Chennai-600002. 2.The State of Tamilnadu, rep.by Secretary to Government, P&A.R.Department, Fort St.George, Chennai-9. 3.The State of Tamilnadu, rep.by Secretary to Government, Revenue Department, Fort St.George, Chennai-9. 4.The Registrar, Tamil Nadu Administrative Tribunal, Chennai-600104. ... Respondents W.P.No.22940 of 2003: R.Sivanesan ... Petitioner Vs. 1.The Secretary, Tamil Nadu Public Service Commission, Government Estate, Chennai-600002. https://hcservices.ecourts.gov.in/hcservices/ 2.The State of Tamilnadu, rep.by Secretary to Government, Home Department, Fort St.George, Chennai-600009. 3.The State of Tamilnadu, rep.by Secretary to Government, P&A.R.Department, Fort St.George, Chennai-9. 4.The State of Tamilnadu, rep.by Secretary to Government, Revenue Department, Fort St.George, Chennai-9. 5.The Registrar, Tami Nadu Administrative Tribunal, Chennai-600104. ... Respondents Both the petitions have been filed under Article 226 of the Constitution of India. W.P.No.22770 of 2003 has been filed praying to issue a Writ of Certiorarified Mandamus, calling for the records pertaining to the order passed by the 4th respondent in O.A.No.7200 of 2001, dated 17.12.2002 and quash the same and consequently directing the respondents to select the petitioner as against the backlog vacancies in the category of Deputy Collector, after assessing and revising the vacancies for 1997-1998 in the Tamil Nadu Revenue Subordinate Service. W.P.No.22940 of 2003 has been filed praying to issue a Writ of Certiorarified Mandamus, calling for the records pertaining to the order passed by the 5th respondent-Tribunal in O.A.No.5828/2001 dated 17.12.2002, quash the same and consequentially direct the respondents 1 to 4 to select the petitioner as against the backlog vacancies in the category of Deputy Superintendent of Police after assessing and revising the vacancies for 1997-1998. For petitioners : Mr.P.Jayaraman, Senior Counsel for Mr.V.Ravikumar For R.1 in both WPs(TNPSC) : Mr.A.Arul, Spl.G.P. For other respondents in both the W.Ps. : Mr.P.S.Raman, Addl.Advocate- General for Mrs.Geetha Thamaraiselvan, G.A. https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER DHARMARAO ELIPE, J. Pursuant to the Notification dated 7.1.1998 issued by the Tamil Nadu Public Service Commission calling for applications for direct recruitment to Group-I Services, 1998, both the petitioners have applied for the same. Both the petitioners belong to Scheduled Caste category. While Sivanesan (the petitioner in W.P.No.22940 of 2003) has given his first preference to the post of Deputy Superintendent of Police, Rajasekar (the petitioner in W.P.No.22770 of 2006), though at the first instance has given his first preference for the post of Deputy Superintendent of Police, thereafter, by way of a representation dated 15.4.1999, he has changed his first preference to that of Deputy Collector. The vacancies notified for the post of Deputy Collector were 16, out of which 3 vacancies were reserved for scheduled caste candidates including one woman post, while the vacancies notified for the post of Deputy Superintendent of Police were 20, out of which four vacancies were reserved for scheduled caste candidates including one woman post. Selection was to be done by conducting preliminary examination and on the performance of candidates therein, by process of elimination, persons will be called for main examination and thereafter interview cards will be sent to candidates in the ratio of 1:10 and selection to be made with reference to performance of the candidates in the main examination and marks obtained by them in the oral interview. 2. Since in the main examination results published by the 1st respondent on 5.12.1999, the result of Rajasekar (the petitioner in W.P.No.22770 of 2003) was withheld, he filed O.A.No.1480 of 2001 before the Administrative Tribunal for a direction to the Tamil Nadu Public Service Commission to publish his results in the main examination and the Tribunal, by the order dated 13.7.2001, has allowed the said O.A. 3. While Rajasekar (the petitioner in W.P.No.22770 of 2003) has secured 1194.25 marks, Sivanesan (the petitioner in W.P.No.22940 of 2030) has secured 1138.75 marks and accordingly, they were placed in Rank Nos.14 and 22 respectively among the Scheduled Caste candidates and thus, they could not get any selection for the post. Therefore, they filed O.A.Nos.7200 of 2001 and 5828 of 2001 respectively before the Tribunal praying for a direction to the respondents to select the applicants for direct recruitment Group-I services for the year 1997-98, by assessing and including the backlog vacancies for the SC candidates for the posts of Deputy Superintendent of Police and Deputy Collector and to revise the Selection List already notified on 2.3.2001 in such a manner corresponding to the extent of actual number of vacancies. Since the Tribunal has dismissed both the Applications, the petitioners have filed these writ petitions. 4. The petitioners allege that their chances of appointment were whittled away due to flagrant irregularities and illegalities committed by the 1st respondent/Public Service Commission since it failed to assess the https://hcservices.ecourts.gov.in/hcservices/ actual number of vacancies and, on the contrary, has restricted the selection only against the tentative vacancies estimated three years before the date of issue of notification of advertisement of vacancies; that the 1st respondent failed to draw the reserve-list or waiting list and failed to publish the same as contemplated by G.O.Ms.No.185, P&A.R. Department, dated 15.5.1991; that the 1st respondent failed to adhere to Rule 22(d) of the General Rules of Tamil Nadu State and Subordinate Services insofar as it relates to filling up of back-log vacancies for S.C. candidates on first priority basis with the consequential safeguards of a second attempt of selection of S.C. candidates in one and through the same recruitment; that the 1st respondent failed to re-determine the vacancies not only with regard to the number of back-log vacancies reserved for S.C. candidates but also with regard to the increase in the number of vacancies which cannot be denied to have arisen due to premature deaths or retirements of incumbents after the announcement of the Notification and other vacancies that might have arisen due to permanent retention of temporary posts and appointment or confirmation of permanent incumbents in other posts and because the first respondent finalised the selection only against the approximate and preliminary estimate of 16 vacancies reserved for the S.C. candidates without taking into account the actual vacancies that existed as at the time of actual recruitment. 5. The petitioners further state that they made a detailed representation dated 1.10.2001 to the respondents with a request to assess and include the backlog vacancies of the posts of Deputy Collector and Deputy Superintendent of Police and also to revise the selection list with reference to actual vacancy position for the year 1997-98 duly supplemented by a reserve list so as to ensure the second attempt of selection of S.C. candidates from and through the same recruitment as contemplated under the third proviso to sub-rule (d) of Rule 22 of the General Rules for Tamil Nadu State and Subordinate Services. 6. The petitioners submit that they made the above referred representation based on the 'white-paper on the reservation in Government employment' tabled on 11.5.2000 by the Government of Tamilnadu before the Tamil Nadu legislative assembly wherein in para 6, the details of back log vacancies regarding S.C. candidates, which arose from 1.4.1989 onwards in respect of Group-A are mentioned as 168 and Group-B posts as 1545 and in para 7 of the said report, it has been stated that the Government took the decision on 11.5.1999 to compute the back-logs by creating equal number of posts in the entry levels. Therefore, the Notification dated 7.1.1998 issued by the 1st respondent is subject to all incidence of revision and re-determination of back-log vacancies in the category of Deputy Collector and Deputy Superintendent of Police which are indisputably entry-level posts by direct recruitment; that actually as per the 'White Report' published by the Government, there are number of vacancies which remain unfilled in Group-I services for so many years and while verifying with the authorities concerned, the petitioners were informed that among the said total number of back log vacancies, there are hundreds of vacancies of Deputy Collector and 23 vacancies of Deputy Superintendent of Police, https://hcservices.ecourts.gov.in/hcservices/ which have not been filled up till date; that since their representations were not favoured with any reply either from the 1st respondent or the 2nd respondent, they have approached the Tamil Nadu Administrative Tribunal in O.A.Nos.7200 of 2001 and 5828 of 2001 which has dismissed their Applications on erroneous grounds and hence they filed these writ petitions. 7. The 1st respondent/Tamil Nadu Public Service Commission filed different counter affidavits wherein they have mentioned that for the 1996-97selection, R.Rajesekar (petitioner in W.P.No.22770 of 2003) was disqualified for the post of Deputy Superintendent of Police, on medical grounds that the height of the petitioner is 161 cms. only which is 4 cms. short of the minimum height required and he filed O.A.No.6571 of 1999 before the Tribunal praying for a direction to appoint him as Deputy Superintendent of Police on the basis of the provisional selection made by the Commission and since the said O.A. was allowed by the Tribunal, the Government filed W.P.No.5814 of 2000 before this Court. 8. Now, it is brought to the notice of this Court that a Division Bench of this Court by its order dated 16.12.2004 in W.P.No.5814 of 2000, while setting aside the order of the Tribunal directing appointment of R.Rajasekar (the petitioner in W.P.22770 of 2003) as the Deputy Superintendent of Police, has directed the Government to consider the question of selection and appointment of R.Rajasekar on the basis of the marks obtained by him in the written examination and in the interview in respect of the vacancies for the relevant year and the question of selection should be considered in accordance with the preference indicated in the application form for the posts. It is also directed that the said exercise to be completed within a period of three months from the date of receipt of the order and necessary communication may be issued to R.Rajasekar on this aspect. 9. The further case of the respondents is that in the meanwhile, Rajasekar (the petitioner in w.P.22770 of 2003) also appeared for the 1997-98 Group-I services recruitment and his result was not communicated since against column 17 of his application dated 20.10.1998 for recruitment to the post included in Group-I services 1997-98, he did not mention about his previous application made to the Commission and thus he has suppressed certain material information and further the issue of satisfying the physical qualification in regard to his height was under dispute. Aggrieved, the petitioner filed O.A.1480 of 2001 before the Tribunal and pursuant to the direction in the said O.A., his result was announced and thereafter O.A.No.7200 of 2001 was also filed by the petitioner. In the meanwhile, the Commission issued a show-cause notice for rejection of application for direct recruitment to Group-I services recruitment 1997-98 for the suppression of information regarding 1996-97 selection and after considering in depth his representation to the show- cause notice, the Commission rejected his application for direct recruitment to the Group-I Services recruitment 1997-98 and the petitioner was informed of this in Commission's Memo No.8100/OTD-C1/2001 dated 13.2.2002. https://hcservices.ecourts.gov.in/hcservices/ 10. The 1st respondent further stated that on the basis of the marks obtained by them and also having regard to the rule of reservation of appointments, the petitioners did not reach their turn for selection for appointment in the main select list; that no irregularities or illegalities have been committed by the Commission; that in Note (i) under para 1 of the Notification, it was announced that the number of vacancies advertised therein is only approximate and is liable to modification with reference to vacancy position at any time before or at the time of actual recruitment; that the Commission being the recruiting body for the selection of candidates for appointment to the posts in various services under Government of Tamil Nadu announces the vacancies in the posts, as furnished by the Government/Unit Officers concerned; that since the vacancies thus furnished by the Government/Unit Officers and announced by the Commission in its notification are liable for revision at any time or at the time of making actual selection, due to unforeseen circumstances at any point of time or due to the policy of the Government, a provision to the effect that the vacancies announced by the Commission are approximate and that they are liable for revision was announced to that effect in the notification as is being done in all the notifications issued by the Commission and just because of the existence of the said provision in the notification relating to the recruitment, it cannot be taken that the vacancies would definitely be revised or ought to be revised at the time of making actual selection; that according to the procedure now in vogue, a reserve list containing 25% of the number of candidates selected for appointment in the Main Select List in each community category is being drawn and kept as reserve list in respect of each and every recruitment made by the Commission and the reserve list thus drawn is meant for the allotment of the candidates therein only in the vacancies caused due to the drop outs in the main select list and will be in force until the next select list is drawn; that in respect of the present recruitment, since the issue regarding the amending of the General Rules in regard to the operation of the reserve list was under consideration and the same was also under correspondence with the Government, the reserve list relating to this recruitment was not published. 11. The 1st respondent further submitted that the orders issued in G.O.Ms.No.185, P&AR dated 15.5.1991 relate only to the maintenance of waiting list of candidates to fill up short vacancies to obviate the need for resorting to recruitment of temporary candidates through employment exchanges and the said orders cannot be made applicable to the recruitments like Group I Services, inasmuch as for the appointments to the posts included in Group-I services, recruitment through the employment exchanges is not being resorted to; that in fact, the reserve list drawn by the Commission along with the main select list for the recruitments like Group-I recruitment is entirely different from that of waiting list, as envisaged in the said G.O.; that insofar as the direct recruitment to the posts included in Group-I services is concerned, no vacancy reserved for the Scheduled Castes has been kept unfilled due to the paucity of candidates in that category, either in the recruitment relating to the year 1998 or in the recruitment finalised in the recent past; that all https://hcservices.ecourts.gov.in/hcservices/ the vacancies reserved for the Scheduled Castes and announced by the Commission were filled up and, therefore, the question of carrying forward the unfilled vacancies, as backlog vacancies did not at all arise; that if any carried forward vacancies relating to the previous recruitment, which has to be filled up in the current recruitment, exist, the details of the same would definitely be indicated along with the number of vacancies announced by the Commission in the notification. 12. Furnishing the details of the number of vacancies announced for the Scheduled Castes and the number of candidates selected therefor in the past six selections to the posts included in Group-I services recruitment, the 1st respondent would submit that since all the vacancies reserved for the Scheduled Castes were filled up, the question of resorting to second attempt to fill up the unfilled vacancies or for carrying forward those Scheduled Caste vacancies to the next recruitment did not arise. 13. The 1st respondent would further submit that even if any backlog vacancies which are required to be filled up only by direct recruitment exist, the same has to be assessed and furnished only by the Government and only then, the Commission would be in a position to take necessary steps for filling up those vacancies by resorting to a special recruitment, as was done in the year 1991 for 11 Scheduled Caste backlog Deputy Collector vacancies. On such grounds, the 1st respondent has prayed to dismiss the writ petitions. 14. The Government has filed the counter stating that the 'A' category posts carry the scale of pay of Rs.10,000/= and above and 'B' category of posts carry the scale of pay of Rs.5,5000/= upto Rs.10,000/= and both these category posts are filled both by direct recruitment through the Tamil Nadu Public Service Commission and Employment Exchange and by promotion from the feeder categories as prescribed in the relevant special rules, but the posts in Group-I services carry the minimum scale of pay of Rs.8,000/= only; that there are vacancies by way of promotion to posts under Group A category in State Government, but that does not mean that there are backlog vacancies available even with regard to the posts of Deputy Collector, Deputy Superintendent of Police and others earmarked for direct recruitment through the Tamil Nadu Public Service Commission. 15. It is further submitted that the assessment of backlog vacancies furnished in the 'White Paper' includes back log vacancies both in Government and Public Sector Undertakings, which was made only on 11.5.2000, but subsequently, the Government took a policy decision and imposed a total ban invariably for all posts under direct recruitment through Tamil Nadu Public Service Commission and Employment Exchange including the posts coming under 'A' and 'B' groups except essential services like Doctors, Teachers and Police and hence the question of filling up of back log vacancies will not arise and it is beyond the scope of the present writ petition; that insofar as the direct recruitment to the posts included in Group-I services is concerned, no vacancy reserved for the Scheduled Castes has been kept unfilled due to paucity of candidates in that category, either in the recruitment relating to the https://hcservices.ecourts.gov.in/hcservices/ year 1998 or in the recruitment finalised in the recent past; that all the vacancies reserved for the Scheduled Castes and announced by the Commission were filled up and hence the question of carrying forward the unfilled vacancies as back log vacancies did not at all arise. 16. Further furnishing the details of the number of vacancies announced for the Scheduled Caste and the number of candidates therefor in the past six selections to the posts included in Group-I services recruitment and also the details of the total number of posts announced in each category of posts and the number of vacancies reserved for Scheduled Caste category, as has been furnished by the 1st respondent/Public Service Commission, the Government would further submit that normally a policy decision is taken by Government to fill up back log vacancies and based on that decision, special recruitment to fill up unfilled back log vacancies is resorted to; that based on the number of vacancies furnished by the Government to fill back log vacancies, the Tamil Nadu Public Services Commission issues notification calling for application, conducts qualifying examination and then selects candidates based on the marks obtained by them and then recommends the names of selected candidates to Government for appointment, but no such exercise has been undertaken in this direction. 17. It is further submitted that even though there are back log vacancies, the petitioners, who had applied for Group-I services posts in 1996-97 cannot be appointed straight away, circumventing all the procedures to be followed for filling up back log vacancies causing prejudice to other persons; that the candidates, who applied for 1996-1997 notification, can only be considered for the posts notified by the Tamil Nadu Public Service Commission for appointment for that corresponding year and the marks obtained in that recruitment cannot be considered for another recruitment. 18. Both the petitioners have filed rejoinders to the counter affidavits filed by the respondents wherein they have stated that during the year 2000, by virtue of G.O.Ms.No.33 Backward Classes, Most Backward Classes and Minorities Welfare Department dated 2.5.2000, guidelines were framed to fill up the back log vacancies of Scheduled Castes, Scheduled Tribes, and other communities; that since the results of the Group-I examination conducted by the 1st respondent for the year 1997-1998 published only on 2.3.2001, the said back log vacancies meant for Adi Dravidar communities ought to have been included and results ought to have been published by including the said back log vacancies and if the said back log vacancies would have been included for the post of Deputy Collector for the year 1997-1998, since the petitioner in W.P.No.22770 of 2003 was in 14th rank, he would have been selected. 19. The petitioners would further submit that the assessment of back log vacancies furnished in the 'White Paper' includes 168/1545 back log vacancies in the Scheduled Caste category remain unfilled in Group A/B posts and subsequently, there was a ban on direct recruitment through the https://hcservices.ecourts.gov.in/hcservices/ Tamil nadu Public Service Commission and Employment Exchange including posts coming under A and B groups except essential services and then by way of G.O.Ms.No.16 P&AR (G) Department, dated 21.2.2006, the said ban was lifted by the government on 29.12.2006; that though there are 1565 back log vacancies in Group-I services as stated in the 'White Paper Report', recruitment was conducted by the TNPSC only for filling up of current vacancies and not for the back log vacancies and hence as per Rule 22(d) of the State and Subordinate Service Rules, as there are vacancies, the second attempt of selection of SC candidates should be made in one and through same recruitment; that the respondents have admitted that there are back log vacancies and since the petitioners have approached the Court for redressal of their grievances, their genuine claim cannot be denied by the respondents on the ground that it would cause prejudice to other persons since as per the dictum laid down by the Hon'ble Supreme Court of India, those who have approached the Hon'ble Court alone get their relief and hence the claim of the petitioners is valid and sustainable. 20. The learned senior counsel appearing on behalf of the petitioners would rely on a judgment of the Apex Court in SANDEEP SINGH vs. STATE OF HARYANA AND ANOTHER [(2002) 10 SCC 549]. In the said case, like in the case on hand, the number of Haryana Civil Services (Execuvie Branch) posts had been indicated in the advertisement but it was stipulated that the vacancy position may change. From the date of the advertisement and till the date of holding the interview, several other posts in the services fell vacant, but Public Service Commission ultimately gave only a list of those number of vacancies for which initial requisition had been made. In such circumstances, the Apex Court had, in no uncertain terms, had held that 'vacancies available upto the date of interview should be filled up from amongst the candidates selected in the said competitive test.' 21. In this case, the notification was issued on 7.1.1998, written test was conducted on 7.6.1998, interview was conducted on 1.12.1999 and the results were announced on 5.12.1999. Immediately thereafter, the Government tabled a 'White Paper on the Reservation in Government Employment' on 11.5.200 before the Tamil Nadu Legislative Assembly wherein in para 6, the details of backlog vacancies regarding S.C.candidates which arose from 1.4.1989 onwards in respect of Group-A are mentioned as 168 and Group-B posts as 1545 and in para No.7 of the said Report, it has been stated that the Government took the decision on 11.5.1999 to compute the backlogs by creating equal number of posts in the entry levels. Therefore, the notification dated 7.1.1998 issued by the 1st respondent is subject to all incidence of revision and re-determination of backlog vacancies in the category of Deputy Collector and Deputy Superintendent of Police, which are indisputably entry-level posts by direct recruitment, as has been rightly argued on behalf of the learned senior counsel for the petitioners since it cannot be said that such huge number of vacancies fell vacant only after the interview conducted on 1.12.1999, so as to distinguish the said ruling of