The SecretaryTamil Nadu Public Service CommissionOmanthoorar Government EstateAnna Salai, Chennai v. The Secretary to Government Dept. of Personnel & Admn. Reforms & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 12.06.2009CORAMTHE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR. JUSTICE V.DHANAPALANW.A. NO. 1466 OF 2008ANDW.A. NOS. 24 TO 27 OF 2009W.A. No. 1466 of 2008The SecretaryTamil Nadu Public Service CommissionOmanthoorar Government EstateAnna Salai, Chennai... Appellant/1st Respondent - Vs -1. The Secretary to Government Dept. of Personnel & Admn. Reforms Fort St. George, Chennai – 9.2. The Secretary to Government Commercial Taxes Department Fort St. George, Chennai – 9.3. B.Subashini.. Respondents/2 & 3rd Respondents & Petitioner W.A. Nos. 24 to 27 of 2009The SecretaryTamil Nadu Public Service CommissionOmanthoorar Government EstateAnna Salai, Chennai... Appellants in all WA's/ 2nd Respondent in all WPs- Vs -1. The State of Tamil Nadu rep. by its Secretary Health & Family Welfare Dept. Fort St. George, Chennai – 9. https://hcservices.ecourts.gov.in/hcservices/

2. The Director of Medical and Rural Health Services.. Respondents 1 & 2 in Chennai – 6. all the writ appeals/Respondents 1 & 3 in all WPs3. Dr. M.Y.Padmanabhan.. Respondents 3 & 4 in4. Dr. D.Karal W.A. No. 24 of 2009/4th Respondent in WP and Petitioner in WP.5. Dr. R.Cholan.. Respondents 3 & 4 in6. Dr. A.Senthil Kumar W.A. No. 25 of 2009/4th Respondent in WP and Petitioner in WP7. Dr. T.Bupathi8. Dr. D.Malarvizhi9. Dr. P.Perumal10.Dr. A.Dinesh Kumar11.Dr.S.Jothilatha12.Dr.V.Thalaivavathi13.Dr.S.Sabarinathan.. Respondents 3 to 10 in14.Dr.T.Bhuvaneswaran W.A. No.26 of 2009/ Respondents 4 to 10 in WP and Petitioner in WP15. Dr.S.Jothilatha16.Dr.P.Perumal17.Dr.V.Thalaivavathi18.Dr.S.Sabarinathan.. Respondents 3 to 7 in19.Dr.G.J.Arun Chander W.A. No.27 of 2009/Respondents 4 to 7 in WP andPetitioner in WP.W.A. No.1466 of 2008 filed against the order dated 22nd Aug.,2008 passed by learned single Judge in W.P. No.16721 of 2008.WP.16721/2008: Writ Petition filed under Article 226 of theconstitution of India, to issue a writ of Certiorarified Mandamus,calling for the impugned memo No.719/OTD-C1/2000 dated 2.7.2008 ofthe first respondent and quash the same and consequently direct therespondents to appoint the petitioner as Commercial Tax Officerunder the Scheduled Caste category from and out of the Reserve list.W.A. Nos. 24 to 27 of 2009 filed against the order dated 25thJuly, 2008, passed by learned single Judge in W.P. Nos.19612 to19615 of 2007.WP 19612/2007 to 19615/2007: Writ Petitions filed under Article https://hcservices.ecourts.gov.in/hcservices/ 226 of the constitution of India, to issue a writ of CertiorarifiedMandamus, calling for the records of the second respondent in hisproceedings in Advertisement No.104 dated 5.4.2007 and qaush thesame and consequently direct the respondents to appoint thepetitioner specified in the Reserve List, for vacancies arising forthe post of Assistant Surgeon (Dental), 2003-2005 due to nonjoining of candidates in violation of G.O.Ms.No.221 dated 25.8.1998,communicated in Ref.No.20760/E6/4/07 dated 17.5.2007 of the 3rdRespondent respectively. For Appellants: Mr. N.R.Chandran, SC for Ms. C.N.G.Ezhilarasi in all appealsFor Respondents: Mr. R.Muthukumarasamy, SC, for Mr. K.G.Vasudevan for R-3 in WA 1466/08 Mr.Abdul Salem for M/s.Anand Abdul Vinodh Associates 4th Respondent in WAs 24 &25/09 and 10th Respondent in WA 26/09 and 7th Respondent in WA 27/09.Other Respondents in WA's : No appearance Mr. D.Sreenivasan, AGP for RR-1 & 2 in W.A. Nos. 24 to 27 of 2009 and WA 1466/2008COMMON JUDGMENTS.J.MUKHOPADHAYA, J.Though these cases were heard separately, but common questionof law involved, they are disposed of by this common judgment.2. The contesting respondents/writ petitioners (hereinafterreferred to as 'writ petitioners') of each of the writ appealspreferred writ petitions for their appointment against non-joiningvacancies out of the reserved list (waiting list) (hereinafterreferred to as 'waiting list'). Learned single Judge having allowedthe writ petitions by two separate judgments, the present appealshave been preferred by Tamil Nadu Public Service Commission(hereinafter referred to as TNPSC').3. The question that arise for consideration in all theseappeals is :-“Whether the writ petitioners, whose names wereappearing in the waiting list have to be consideredfor appointment against non-joining vacancies orvacancies due to death or vacancies caused due toresignation or cancellation of provisionalselection.” https://hcservices.ecourts.gov.in/hcservices/ W.A. Nos. 24 to 27 of 2009 :4. The brief facts necessary for disposal of these cases are asfollows :-The petitioners, who passed Bachelor of Dental Surgery, appliedpursuant to advertisement dated 15th Sept., 2006, published by theTNPSC for appointment to the post of Assistant Surgeon (Dental) inthe Tamil Nadu Medical Service. As per the advertisement, 39 postsfor the year 2003-2005 were to be filled up out of the same. Thepetitioners appeared in the written test held on 10th Dec., 2006 andhaving come out successful, were called for viva-voce test on 25thJan., 2007. The TNPSC, thereafter, published the list of 39successful candidates, including 2 candidates, whose results werewithheld and 11 successful candidates were placed in the waitinglist. The petitioners are amongst the waiting list candidates. TheTNPSC, by their communication dated 20th Feb., 2007, shown thefollowing position of petitioner in the waiting list :-1)Dr. D.Karal-MBCDenotifiedCommunity-GeneralTurn - 12)Dr. A.Senthil Kumar-SC-Turn - 13)Dr. T.Bhuvaneswaran-GeneralBC-Turn – 2Turn - 14)Dr. G.J.Arun Chander-BC (General)-Turn - 25. In the notice by which reserved list (waiting list) waspublished in the newspaper on 20th Feb., 2007, the TNPSC informed thecandidates as follows :-“The candidates in the reserved list from therespective categories will be considered forallotment in the place of the candidates in theselected list, who fail to join duty. The reservedlist is valid till the finalisation of selected listof the subsequent recruitment to this post.”By the said communique it was also informed that the selectionof candidates therefrom will be made against the vacancies causeddue to any of the following reasons :-“a) non-joining of selected candidates;b) selected candidates who joined duty but leftthereafter;c) cancellation of provisional selection ofselected candidates for any reason.”6. The Director of Medical and Rural Health Services, Chennai, https://hcservices.ecourts.gov.in/hcservices/ issued conditional posting orders to selected candidates on 3rdApril, 2007 asking them to join duty within 30 days from the date ofreceipt of posting orders, failing which their names will be removedfrom the approved list. 14 selected candidates, however, failed tojoin duty within the prescribed period of 30 days, but inspite ofthe same, the names of the writ petitioners were not recommended.W.A. No. 1466 of 2008 :7. Pursuant to advertisement published by TNPSC dated 27th Dec.,2000, the petitioner applied and appeared in the combinedcompetitive examination held by TNPSC. Having come out successful,she was offered post of Deputy Registrar of Co-operative Societiesvide memorandum dated 25th Aug., 2004. A waiting list was alsopublished on 25th Aug., 2004 and the petitioner was informed that hername has been kept in the waiting list for the post of CommercialTax Officer under the category of Scheduled Caste (General) at No.1and Scheduled Caste (Women) at No.1.According to the petitioner, one R.K.Sujatha, who was selectedas Commercial Tax Officer under the Scheduled Caste (General)category joined the post and, subsequently, died on 30th Nov., 2006.Thus, a vacancy arose in the Scheduled Caste (General) category aswell as Scheduled Caste (Women) and the petitioner being at No.1 inthe waiting list in both the categories, she ought to have beenappointed as Commercial Tax Officer against the said vacancy. Sinceshe was not given appointment despite availability of the vacancy,she submitted final representation on 14th March, 2008, to which theSecretary, Commercial Taxes Department, Government of Tamil Naduintimated by letter dated 1st April, 2008 informed that the matterhas been forwarded to the TNPSC for necessary action. Inspite ofthe same, TNPSC having not forwarded the name, the petitioner filedW.P. No.9481/08 before this Court for direction on respondents toappoint her as Commercial Tax Officer against the vacancy caused dueto the death of R.K.Sujatha. This Court, vide order dated 17thApril, 2008, directed the TNPSC to consider and dispose of therepresentation dated 14th March, 2008 on merit. The respondent, byletter dated 19th June, 2008, also accepted that a vacancy caused inthe post of Commercial Tax Officer consequent upon the death ofSmt.R.K.Sujatha as evident from letter and quoted hereunder :- https://hcservices.ecourts.gov.in/hcservices/ “Commercial Taxes andRegistration DepartmentSecretariat, Chennai – 9Letter No.6847-A/E1/2008-5Dated : 19.6.2008Aani – 5Thiruvalluvar Aandu – 2039FromDr. K.Arulmozhi, I.A.S.,Secretary to GovernmentToThe SecretaryTamil Nadu Public Service CommissionChennai – 2 (w.e.)Sir, Sub : Public Services – Commercial TaxesDepartment -Tamil Nadu Commercial Taxes Service– W.P. No.9481/2008 and M.P. No.1/2008 filed byTmt.B.Subashini – Appointment as Commercial TaxOfficer from reserve list – Vacancy caused inthe post of Commercial Tax Officer – Informed –Regarding.Ref : 1. Commissioner of Commercial Taxes letterNo.CP2/15244/2008, dated 7.5.2008.2.Government Letter No.6847-A/E1/2008-3dated 12.5.2008.3.Representation from Tmt. B.Subashini,dated 23.5.2008 - - - - - - - - -I am directed to invite attention to the referencecited and to enclose a copy of the representationreceived from Tmt. B.Subashini.2. In the representation tird cited,Tmt..Subashini has represented that the Tamil NaduPublic Service Commission in its letter dated14.5.2008 has informed her that it has not receivedthe report of the Government in regard to vacancypertaining to Tmt.R.K.Sujatha till date. Hence, theindividual has requested that a report on vacancypertaining to Tmt.R.K.Sujatha be notifiedspecifically to the Tamil Nadu Public ServiceCommission by the Government.3. In this connection, I am to state that theCommissioner of Commercial Taxes in the letter first https://hcservices.ecourts.gov.in/hcservices/ cited and the Government in their letter secondcited had already brought to the notice of theCommission the vacancy caused in the post ofCommercial Tax Officer consequent on the death ofTmt.R.K.Sujatha. A copy of the death certificatewas also forwarded to the Commission with theGovernment letter cited so as to proceed further inthe light of the direction of the High Court,Madras, dated 17.4.2008.Yours faithfully,for Secretary to GovernmentCopy to :The Commissioner of Commercial TaxesChennai – 5.”Inspite of the aforesaid letter, order of appointment havingnot issued, the petitioner preferred writ petition, which wasallowed by learned single Judge.Common stand of the petitioners :8. According to the petitioners, the waiting list remainedvalid until regular list is drawn up subsequently. In both the setsof cases, name of petitioners having appeared in the waiting list,subsequent panel having not prepared, it was incumbent on the partof the authorities to fill up the non-joining vacancies or thevacancies caused due to the death of selected candidates out ofthose whose names were appearing in the reserved list (waitinglist).Common stand of the TNPSC :9. According to counsel for TNPSC, mere appearance of names ofcandidates in the waiting list will not confer any right on them foreventual appointment to the post and the waiting list is valid onlyup to the drawal of the regular list for subsequent appointment.The waiting list can be operated by the Commission only on receiptof necessary proposal from the Government for removal of the namesof selected candidates, who have not joined duty and in the case ofappointment to the post of Assistant Surgeon (Dental) no suchproposal was received from the Government for allotment ofcandidates from the waiting list. The Commission also addressed theGovernment and sought for details regarding the candidates, who hadnot joined the post of Assistant Surgeon (Dental) by letter dated15th June, 2007, but no reply was received. In the meantime, aseparate notification was issued on 4th April, 2007, invitingapplication for 16 vacancies to the post of Assistant Surgeon(Dental). Thereafter, steps were taken for the purpose ofsubsequent selection list.So far as the case of the appellant, B.Subashini, of W.A. https://hcservices.ecourts.gov.in/hcservices/ No.1466/08 is concerned, learned counsel for TNPSC submitted thatthe petitioner had no right to be appointed out of the waiting list.10. We have heard the parties and perused the record. It willbe evident that the State of Tamil Nadu from Health and FamilyWelfare Department, taking note of interim order passed by thisCourt in the case of Dr.D.Karal and others, vide letterNo.224367/B1/07-10 dated 19th Nov., 2007, ordered to appoint thepetitioner, Dr.D.Karal, Dr.A.Senthil Kumar, Dr.J.Bhuvaneswaran andDr.G.J.Arun Chander on adhoc basis as Assistant Surgeon (Dental)subject to the result of the writ petitions as also in respect ofother candidates of the waiting list, however, no order ofappointment has been issued.11. The question relating to right of a candidate to claimappointment out of waiting list fell for consideration beforeSupreme Court and other Courts from time to time. In Gujarat StateDy. Xen Association – Vs – State of Gujarat (1994 SCC (L&S) 1159 ::CDJ 1994 SC 569 :: 1994 (3) JT 559), the Supreme Court held asfollows :-“8. .............. A candidate in the waitinglist in the order of merit has a right to claim thathe may be appointed if one or the other selectedcandidate does not join. But once the selectedcandidates join and no vacancy arises due toresignation, etc., or for any other reason withinthe period the list is to operate under the rules orwithin reasonable period where no specific period isprovided then candidate from the waiting list has noright to claim appointment to any future vacancywhich may arise unless the selection was held forit. He has no vested right except to the limitedextent, indicated above, or when the appointingauthority acts arbitrarily and makes appointmentfrom the waiting list by picking and choosing forextraneous reasons.9. A waiting list prepared in an examinationconducted by the Commission does not furnish asource or recruitment. It is operative only for thecontingency that if any of the selected candidatesdoes not join then the person from the waiting listmay be pushed up and be appointed in the vacancy socaused or if there is some extreme exigency theGovernment may as a matter of policy decision pickup persons in order of merit from the waiting list.But the view taken by the High Court that since thevacancies have not been worked out properly,therefore, the candidates from the waiting list wereliable to be appointed does not appear to be sound.This practice may result in depriving thosecandidates who become eligible for competing for the https://hcservices.ecourts.gov.in/hcservices/ vacancies available in future. If the waiting listin one examination was to operate as an infinitestock for appointments, there is a danger that theState Government may resort to the device of notholding an examination for years together and pickup candidates from the waiting list as and whenrequired. The constitutional discipline requiresthat this Court should not permit such improperexercise of power which may result in creating avested interest and perpetrate waiting list for thecandidates of one examination at the cost of theentire set of fresh candidates either from the openor even from service.”In the case of Madan Lal & Ors. – Vs – State of J & K & Ors.(AIR 1995 SC 1088), having noticed relevant rule, the Supreme Courtobserved that the life of a selection list gets exhausted the momentall vacancies are filled up or after the expiry of one year,whichever is earlier. That was a case in which the rule stipulatedthe life of a panel for a period of one year. Therefore, it will beevident that the persons, whose names are appearing in the waitinglist, though may not have any vested right to be appointed, but havea limited right to claim appointment against the post, which wereadvertised pursuant to which waiting list prepared and in case ofnon-joining of candidates or such advertised post falls vacantbecause of other circumstances.12. The cases in hand are governed by the Tamil Nadu State andSubordinate Service Rules. Rule 15-A defines 'reserved list' asquoted hereunder:-“15-A Reserve List - “Reserve list” shall mean alist which is prepared so as to contain not lessthan 25% of the candidates of each reservation groupincluding General Turn in the regular list and shallbe in force until the regular list is drawn upsubsequently.”As per proviso to Rule 10 (1) (i), appointment by directrecruitment can be made of any person whose names have beensponsored by the TNPSC from its regular or reserved list ofsuccessful candidates.13. It is not in dispute that the reserved list (waiting list)is prepared and acted upon in case of non-joining of selectedcandidates or who join duty but leave subsequently or if theprovisional selection of selected candidates is cancelled for anyreason. 14. Similar matter fell for consideration before a DivisionBench of this Court in The Secretary, Tamil Nadu Public Service https://hcservices.ecourts.gov.in/hcservices/ Commission – Vs – R.Nagarajan & Ors. (2008 (3) LW 222). Havingnoticed rule 10 (a) (i) aforesaid, the Division Bench held thatmeaningful interpretation of rule 10 (a) (i) would subserve theinterest of the public. Though rule 10 (a) (i) provides forallotment from reserved list for the vacancy in the place of thosewho have not joined duty, it cannot be strictly interpreted so as toexclude resultant vacancies caused due to candidates joined andsubsequently leave or resign. This is also evident from the policydecision taken by the Government as communicated on 20th Feb., 2007and noticed above.15. In view of the aforesaid provisions of law and policydecision of the State Government, the TNPSC cannot object to theappointment of successful candidates whose names are appearing inthe reserved list (waiting list) merely on the ground that the StateGovernment has not deleted the name of candidates, who have notjoined the post. If a person has not joined the post, that means such a personis not in the service of the State. Similarly if a person joins thepost and subsequently died, is also not in the service of the State.The question of deletion of their names from the record of the Statedoes not arise nor such ground could be taken to oppose theappointment of those whose names are appearing in the reserved list(waiting list), if the life of the panel (reserved list) has notcome to an end.15. In both sets of cases, it is not in dispute that the lifeof the panel has not come to an end. In the first set of case ofAssistant Surgeon (Dental), the panel having prepared in 2007,merely because another advertisement has been published after a fewmonths in absence of any subsequent panel (select list), it cannotbe stated that the life of the earlier panel has come to an end.Similar is the case of the petitioner of W.A. No.1466/08, who claimsappointment as Commercial Tax Officer. The subsequent panel havingnot prepared, the earlier waiting list is in force and for the saidreason if the State Government has made a requisition to forward thename of the petitioner, it was not open to the TNPSC to refuse torecommend such name.We find no merit in any of the appeals, therefore, interferencewith the impugned judgment (s) are uncalled for. All the writappeals, accordingly, are dismissed. But in the facts andcircumstances there shall be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ GLNTo1. The Secretary Tamil Nadu Public Service Commission Omanthoorar Government Estate Anna Salai, Chennai.2. The Secretary to Government Dept. of Personnel & Admn. Reforms Fort St. George, Chennai – 9.3. The Secretary to Government Commercial Taxes Department Fort St. George, Chennai – 9.4. The Secretary to Government Health & Family Welfare Dept. Fort St. George, Chennai – 9.5. The Director of Medical and Rural Health Services Chennai – 6.+1cc to Mr.K.G.Vasudevan,Advocate Sr 22787+4ccs to M/s. Anand Abdul & Vinodh Associates Sr 22848+2ccs to Govt. Pleader Sr 22985,22986RSM(CO)km/18.6. W.A. NO. 1466 OF 2008 & W.A. NOS. 24 TO 27 OF 2009