High Court · 2008

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 29.01.2008Coram:The Hon'ble Mr. Justice K.CHANDRUW.P. No. 36800 of 2007andM.P. Nos. 1 to 4 of 2007R. Jawaharlala Nehru .. Petitioner Vs.1.The State of Tamil NaduRep. by its Secretary to Government Personnel and Administrative Reforms DepartmentFort St. George, Chennai – 92.The SecretaryTamil Nadu Public Service CommissionOmanthurar Government EstateChennai – 2 .. Respondents Petition filed under Article 226 of the Constitution of India seekingfor issuance of writ of Certiorarified Mandamus calling for the recordsof the second respondent with regard to the notification / Advertisementdated 01.8.2007 for Group – I Services for the year 2006-2007 and quashthe sub-clause (A) and (A)(iii) of Clause 6 of the Notification /Advertisement dated 01.8.2007 as unconstitutional, ultravires, illegaland invalid and consequently direct the second respondent to considerthe petitioner for the Group – I services for the year 2006-2007. For Petitioner: Mrs. Chithra Sampath for M/s PonnarasiFor Respondent 1: Mrs. Bhavani Subbaroyan, AGPFor Respondent 2: Mr. V. Arul ORDERHeard Mrs. Chithra Sampath learned counsel appearing for M/s. S.Ponnarasi, learned counsel for the petitioner, Mrs. Bhavani Subbaroyan,learned Additional Government Pleader taking notice for the firstrespondent and Mr. V. Arul, taking notice for the second respondentTamil Nadu Public Service Commission [for short, 'TNPSC'] and perusedthe records. https://hcservices.ecourts.gov.in/hcservices/

2.The petitioner is an aspirant for the Group I post in theTNPSC for which notification has been given vide Advertisement No.120/2007. The petitioner is aggrieved by paragraph 6(A) and 6(A)(iii)of the notification dated 01.8.2007 and once the said notification isset aside, he wants a direction to the respondents to consider his namefor the Group I services for which the said advertisement has beengiven. The petitioner was aggrieved by the notification fixing maximumage of 35 years as on 01.7.2007 for SCs/STs/MBCs/DCs/BCs and 30 years inrespect of other categories. However, in paragraph 6(A)(iii), the agerelaxation of five years in the maximum age limit was given in respectof applicants either who are unemployed youth or those who are inGovernment service affected by the ban order on recruitment. But itis stated that in respect of candidates not belonging to the reservedcategories and who have put in five years of service in the State orCentral Government, they are not eligible to apply even though they arewithin the age limit. 3.The petitioner is admittedly working as Revenue Inspector inthe Revenue Department at Tiruchirappalli District and his date of birthwas 31.5.1967. Therefore, as per the notification, the petitioner hadalready crossed the age for applying to the said post. Apart fromthat, the petitioner had already put in five years of service in theGovernment. Therefore, he apprehends that his application thoughsubmitted pursuant to the advertisement, may be rejected by the secondrespondent TNPSC. 4.Mrs. Chithra Sampath, learned counsel appearing for thepetitioner submitted that such a discrimination of restricting theGovernment servants, who are in the subordinate service and who have putin more than five years of service, is violative of Articles 14 and 21of the Constitution of India and when the respondents can grant such anexemption to people who are not in Government service or who have put inless than five years of service as well as not fixing such a ceiling inrespect of other candidates not belonging to reserved categories, is acase of gross discrimination, which cannot be permitted by this Court.5.The arguments made by the learned counsel for the petitionerlack any legal foundation. The comparison of the petitioner with anunemployed youth is misconceived. The policy of the respondent Statehad emanated from the fact that there was a ban on the recruitment and,therefore, certain concession should be given to unemployed youth.Even though the learned counsel for the petitioner stated thatopportunity to participate in the recruitment to Government service is afundamental right, the said argument overlooks the fact that thepetitioner is already in Government service. Therefore, what she nowcontends is a right to be considered for a higher post. In respect ofthe Service Rules applicable to Revenue Department, the petitioner hasfurther chances of promotion, viz., that of Deputy Tahsildar, Tahsildar,Revenue Divisional Officer, District Revenue Officer / DistrictCollector, etc. and he can keep on trying for the said line ofpromotions in accordance with the Service Rules. https://hcservices.ecourts.gov.in/hcservices/

6.In the present case, while being in Government service, thepetitioner wants to compete in direct recruitment for higher post and insuch cases, he has right only in terms of conditions stipulated by theGovernment and he cannot contend that such stipulation is ultra vires ofthe Constitution of India. The prescription of age limit is aprerogative of the employer, who seek candidates for employment and atthe instance of the third party like the petitioner, the rule cannot beimpugned. In any event, the rule granting exemption for such ofthose people, who have not completed five years of service is basedupon a sound principle that in those cases, the employees would not havebeen trained sufficiently in the post due to the short tenure whereas incase of a Government servant who has put in five years and more, he istrained and experience is available and, therefore, he could not beallowed to desert the post in which he is already working. Theargument that such a restriction is not applicable to Governmentservants belonging to other reserved communities and, therefore, it isdiscriminatory cannot be countenanced by this Court. 7.In fact, by virtue of Articles 16(4) and 16(4)(a) read withArticle 335 of the Constitution of India, it is to be seen that the postin the State are filled up by candidates belonging to other categoriesalso. It is a fact that the members of the reserved communitiesincluding SCs / STs are not adequately represented in the higher postsunder the State Government, viz., in Group II and Group I services.This is mainly on the ground that not many candidates qualify themselvesin the direct recruitment and most of the time, Service Rules framed bythe State Government under Article 309 of the Constitution of India donot provide for reservation in promotion. Therefore, exempting therestriction in respect of the candidates belonging to reservedcategories by the impugned notification, is a valid classification andthe petitioner cannot allege that there has been any discrimination.8.It is essential for the employer to prescribe qualificationwhenever they seek for candidates for relevant posts. It is not opento the petitioner, who does not have prescribed qualification in termsof the impugned Notification, to come forward to challenge the same.9.Thereafter, the learned counsel for the petitioner pressedinto service the argument of the legitimate expectation. The saidargument is misconceived because such a legitimate expectation cannot goagainst the statutory Rule made by the Government in terms of Article309 of the Constitution of India. In the decision relating to RamPravesh Singh and others v. State of Bihar and others [JT 2006 (12)SC 209], the Supreme Court set out the parameters of the concept ofLegitimate Expectation. The following passage found in paragraph 14 maybe usefully extracted below:Para 14:"What is legitimate expectation? Obviously, it is not alegal right. It is an expectation of a benefit, relief orremedy, that may ordinarily flow from a promise orestablished practice. The term “established practice”refers to a regular, consistent, predictable and certain https://hcservices.ecourts.gov.in/hcservices/ conduct, process or activity of the decision-makingauthority. The expectation should be legitimate, that is,reasonable, logical and valid. Any expectation which isbased on sporadic or casual or random acts, or which isunreasonable, illogical or invalid cannot be a legitimateexpectation. Not being a right, it is not enforceable assuch. It is a concept fashioned by the courts, forjudicial review of administrative action. It isprocedural in character based on the requirement of ahigher degree of fairness in administrative action, as aconsequence of the promise made, or practice established.In short, a person can be said to have a “legitimateexpectation” of a particular treatment, if anyrepresentation or promise is made by an authority, eitherexpressly or impliedly, or if the regular and consistentpast practice of the authority gives room for suchexpectation in the normal course. As a ground for relief,the efficacy of the doctrine is rather weak as its slotis just above “fairness in action” but far below“promissory estoppel”. It may only entitle an expectant:( a ) to an opportunity to show cause before theexpectation is dashed; or ( b ) to an explanation as tothe cause for denial. In appropriate cases, the courtsmay grant a direction requiring the authority to followthe promised procedure or established practice. Alegitimate expectation, even when made out, does notalways entitle the expectant to a relief. Publicinterest, change in policy, conduct of the expectant orany other valid or bona fide reason given by thedecision-maker, may be sufficient to negative the“legitimate expectation”. The doctrine of legitimate expectation based onestablished practice (as contrasted from legitimateexpectation based on a promise), can be invoked only bysomeone who has dealings or transactions or negotiationswith an authority, on which such established practice hasa bearing, or by someone who has a recognised legalrelationship with the authority. A total strangerunconnected with the authority or a person who had noprevious dealings with the authority and who has notentered into any transaction or negotiations with theauthority, cannot invoke the doctrine of legitimateexpectation, merely on the ground that the authority hasa general obligation to act fairly." 10.In a recent judgment of the Supreme Court reported in 2007 AIRSCW 5989 [Union of India and others v. S. Vinod Kumar and others], itwas held that the prescription of qualification is prerogative of anemployer and the Court's power is very limited. The relevant passagefound in paragraphs 10 and 11 read as follows: https://hcservices.ecourts.gov.in/hcservices/ Para 10:"It may be true that the cut-off marks at 71 had been fixedfor unreserved candidates on the basis that marks obtained by the lastcandidate, i.e. 240th candidate, calculated at 50% of the 480candidates, but concededly 56 marks were fixed for Other BackwardClasses candidates and 20 marks were fixed for Scheduled Caste andScheduled Tribe candidates. Only because the cut-off marks at 71 hadbeen fixed on the basis of the aforementioned criteria, the same byitself, in our opinion, would not mean that no cut-off mark had beenfixed. The fact that the Railway Administration intended to fix the cut-off mark for the purpose of filling up the vacancies in respect of thegeneral category as also reserved category candidates is evident fromthe fact that different cut-off marks were fixed for differentcategories of candidates. We are, therefore, unable to accept thesubmission of the learned counsel that the cut-off marks fixed waswholly arbitrary so as to offend the principles of equality enshrinedunder Article 14 of the Constitution of India. The power of the employerto fix the cut-off marks is neither denied nor disputed. If the cut-offmark was fixed on a rational basis, no exception thereto can be taken.Para 11:.... Once it is held that the appellants had therequisite jurisdiction to fix the cut-off marks, thenecessary corollary thereof would be that it could not bedirected to lower the same. It is trite that it is forthe employer or the expert body to determine the cut-offmarks. The court while exercising its power of judicialreview would not ordinarily intermeddle therewith. Thejurisdiction of the court, in this behalf, is limited.The cut-off marks fixed will depend upon the importanceof the subject for the post in question. It ispermissible to fix different cut-off marks for differentcategories of candidates. (See Banking ServiceRecruitment Board v. V. Ramalingam [(1998) 8 SCC 523]".[Emphasis added] 11.In view of the above, the writ petition lacks in merits andstands dismissed accordingly. However, there will be no order as tocosts. Connected Miscellaneous Petitions are closed.griSd/- Asst.Registrar/true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary to Government State of Tamil NaduPersonnel and Administrative Reforms DepartmentFort St. GeorgeChennai – 92.The SecretaryTamil Nadu Public Service CommissionOmanthurar Government EstateChennai – 2+1 cc to M/s.S.Ponnarasi, Advocate Sr.No.4113.+1 cc to The Government Pleader Sr.No.4151.VC(CO)DCP/6.2W.P. No. 36800 of 2007