Dr.D.Karal v. The State of Tamil Nadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 25-7-2008CORAM:THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMARW.P.No.19612 of 2007 & M.P.No.2 of 2007W.P.No.19613 of 2007 & M.P.No.2 of 2007W.P.No.19614 of 2007 & M.P.No.2 of 2007W.P.No.19615 of 2007 & M.P.No.2 of 2007W.P.No.19612 of 2007Dr.D.Karal...PetitionerVs.1.The State of Tamil Nadu,rep.by its Secretary,Health & Family Welfare Department,Fort St.George,Chennai - 600 009.2.The Secretary,Tamil Nadu Public Service Commission,Chennai - 2.3.The Director of Medical & Rural Health Services,Chennai - 600 006.4.Dr.M.Y.Padmanabhan...Respondents https://hcservices.ecourts.gov.in/hcservices/ W.P.No.19613 of 2007Dr.A.Senthil Kumar...PetitionerVs.1.The State of Tamil Nadu,rep.by its Secretary,Health & Family Welfare Department,Fort St.George,Chennai - 600 009.2.The Secretary,Tamil Nadu Public Service Commission,Chennai - 2.3.The Director of Medical & Rural Health Services,Chennai - 600 006.4.Dr.R.Cholan...RespondentsW.P.No.19614 of 2007Dr.T.Bhuvaneshwaran ...PetitionerVs.1.The State of Tamil Nadu,rep.by its Secretary,Health & Family Welfare Department,Fort St.George,Chennai - 600 009.2.The Secretary,Tamil Nadu Public Service Commission,Chennai - 2.3.The Director of Medical & Rural Health Services,Chennai - 600 006.4.Dr.T.Bupathi5.Dr.D.Malarvizhi6.Dr.P.Perumal https://hcservices.ecourts.gov.in/hcservices/

7.Dr.A.Dinesh Kumar8.Dr.S.Jothilatha9.Dr.V.Thalaivavathi10.Dr.S.Sabarinathan...RespondentsW.P.No.19615 of 2007Dr.G.J.Arun Chander...PetitionerVs.1.The State of Tamil Nadu,rep.by its Secretary,Health & Family Welfare Department,Fort St.George,Chennai - 600 009.2.The Secretary,Tamil Nadu Public Service Commission,Chennai - 2.3.The Director of Medical & Rural Health Services,Chennai - 600 006.4.Dr.S.Jothilatha5.Dr.P.Perumal6.Dr.V.Thalaivavathi7.Dr.S.Sabarinathan...RespondentsCOMMON PRAYER: Writ Petitions filed under Article 226 of theConstitution of India, to issue a Writ of Certiorarified mandamuscalling for the records of the second respondent in his proceedingsin Advertisement No.104, dated 5.4.2007 and quash the same andconsequently direct the respondents to appoint the petitionerspecified in the Reserve List, for vacancies arising for the postof Assistant Surgeon (Dental), 2003-2005 due to non-joining ofcandidates 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 thirdrespondent. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners:Mr.Abdul Salem for Anand Abdul & Vinodh AssociatesFor Respondents 1 & 3:Mrs.E.Ranganayagi, Government AdvocateFor 2nd Respondent :Mr.A.Arul (for TNPSC)COMMON ORDERPrayer in these writ petitions are to quash the advertisementNo.104 dated 5.4.2007 and direct the respondents to appoint thepetitioners, who are in the reserved list, in the vacancies arisingfor the post of Assistant Surgeon (Dental) 2003-2005 due to non-joining of the candidates.2.The brief facts necessary for disposal of these writpetitions are as follows:(a)The petitioners have passed Bachelor of Dental Surgeryfrom the Tamil Nadu Dr.MGR Medical University. On 15.9.2006, thesecond respondent issued an advertisement calling for applicationsfrom the degree holders in Dental Surgery for the post of AssistantSurgeon (Dental) in the Tamil Nadu Medical Service. As per thesaid advertisement, there were 39 vacancies in the post ofAssistant Surgeon (Dental) for the year 2003-2005. Petitionershaving satisfied with the qualification, based on theirapplications, they were permitted to appear in the writtenexamination conducted on 10.12.2006.(b)The second respondent thereafter released a list of 79candidates for oral test, which was to be held on 25.1.2007.According to the petitioners, after the oral tests, a list of 39candidates, including two candidates whose results were withheld,was published as they were selected and 11 candidates were placedin the reserve list for the post of Assistant Surgeon (Dental).Petitioners are among the reserve list candidates.(c)Communication was issued by the second respondent on20.2.2007 stating that the petitioner in W.P.No.19612 of 2007 wasplaced in the reserve list in the category of MBC/denotifiedcommunity (General-1); petitioner in W.P.No.19613 of 2007 wasplaced in the reserve list in the category of Scheduled Caste (1);petitioner in W.P.No.19614 of 2007 was placed in the reserve listin the category of General Turn (2) and Backward Community (1); and https://hcservices.ecourts.gov.in/hcservices/ the petitioner in W.P.NO.19615 of 2007 was placed in the reservelist in category of Backward Community (General) (2).(d)The second respondent also published the reserve list inthe newspapers by stating as follows:"The candidates in the Reserve list from therespective categories will be considered forallotment in the place of the candidates inthe select list who fail to join duty. TheReserve list is valid till the finalisationof the select list of the subsequentrecruitment to this post." The communicationdated 20.02.07 also stated that the reservelist will be in force until the drawal ofnext selection list for this post byCommission for selection of candidatestherefrom against the vacancies caused due toany of the following reasons:(a)Non-joining of selected candidates.(b)Selected candidates who joined duty but left thereafter.(c)Cancellation of provisional selection of selected candidates for any reason."As per the above statement by the second respondent, the reservelist candidates are to be considered in the respective categoriesfor allotment, if the selected candidates in the said categoriesfail to join duty.(e)The third respondent issued posting orders to theselected candidates on 3.4.2007 stating that no representation fromthe candidates would be entertained seeking joining time and theyhave to join duty within 30 days from the date of receipt of theposting orders, failing which their names will be recommended tothe Government for removing from the approved list. Thus,according to the petitioners, 30 days time was given to the personsunder Rule 21(a)(11) of the Special Rules for the Tamil NaduMedical Services, which was issued in G.O.Ms.No.221 Health andFamily Welfare Department, dated 28.5.1998.(f)According to the petitioners, 14 selected candidatesfailed to join duty within the prescribed period of 30 days orthereafter. The third respondent through his proceedings dated17.5.2007 informed the first respondent about the list of 14candidates, who have failed to join duty due to their pursuingP.G.course. The respondents, failed to remove the names of theabove said 14 candidates, who failed to join duty within theprescribed time and consequently failed to operate the reserve https://hcservices.ecourts.gov.in/hcservices/ list.(g)In the meanwhile, the second respondent issued freshadvertisement for selection of Assistant Surgeon (Dental) 2006 on5.4.2007 for 16 vacancies through the impugned advertisement. Thesaid issuance of the fresh advertisement when the petitioners,who are in the reserve list waiting to join duty in the post, ischallenged by the petitioners in these writ petitions on the groundthat the action of the respondents in not releasing thepetitioners' names for appointment in spite of the availability ofvacancies due to non-joining of the selected candidates, is illegaland by virtue of the new advertisement calling for fresh candidatestheir rights are affected.3.The second respondent filed counter affidavit by statingthat merely placing the petitioners' names in the reserve list willnot confer any right to them for eventual appointment to the postsand the reserve list is valid only upto the drawal of the regularlist for subsequent appointment as provided in Sub-Rule 2(15A),Part-I of the Tamil Nadu State and Subordinate Service Rules. It isfurther stated that the reserve list can be operated by theCommission only on receipt of necessary proposal from theGovernment for removal of the names of the selected candidates, whohave not joined duty and in the instant cases, no such proposal wasreceived from the Government for removal of the names of thecandidates, who have not joined duty within the prescribed time andfor allotment of candidates from the reserve list in the vacancies.The Commission also addressed the Government and sought for detailsregarding the candidates, who have not joined duty by letter dated15.6.2007 and no reply was received from the Government and basedon the estimated vacancies furnished by the Government on14.11.2006 for the year 2006, a separate notification was issued on4.4.2007 inviting applications for 16 vacancies and according tothe second respondent since the subsequent selection list wasdrawn, the validity of the earlier reserve list got vanished andtherefore the writ petitioners cannot pray for issuing writ ofmandamus.4.Heard the learned counsel for the petitioner as well asrespondents.5.The question arises for determination in these writpetitions is whether the waiting list/reserve list candidates arehaving any right to demand posting, if the selected candidates failto join duty for any reason.6.From the records it is found that these writ petitionswere filed on 6.6.2007 and this Court in M.P.No.2 of 2007 in therespective writ petitions, passed an interim order on 7.6.2007 tokeep one post each for the petitioners as vacant. The subsequentnotification for 16 vacancies was issued on 4.4.2007 for the year https://hcservices.ecourts.gov.in/hcservices/ 2006, for which written test was conducted after filing of thesewrit petitions. Similarly, oral test was conducted on 6.9.2007.Therefore, the subsequent list having been prepared only afterfiling of these writ petitions that too after reserving one posteach to the petitioners herein as vacant, the said subsequentselection cannot be put against the writ petitioners herein to nonsuite them.7.In fact, the first respondent, through letterNo.224367/B1/07-10, dated 19.11.2007, taking note of the interimorder passed by this Court and after receiving information from theGovernment Pleader, ordered to appoint the petitioners on adhocbasis as Assistant Surgeon (Dental), subject to the result in thewrit petitions and the candidates in the reserve list of theselection made previously, who have moved the High Court, can alsobe considered on similar line. However, no order of appointmentwas given to the petitioners in spite of clearance given by thefirst respondent.8.The contention of the learned counsel for the respondentsthat due to the subsequent notification and selection, petitionerscannot claim any right based on their placement in the earlierreserve list even though there were 14 vacancies available, cannotbe accepted in view of the filing of the writ petitions andobtaining interim orders before the selection was made. It is alsoto be noted that the subsequent selection list published on21.9.2007 also clearly states that the selection/placement of thereserve list is provisional subject to the final outcome of thewrit petitions relating to the said recruitment pending on the fileof this Court/Madurai Bench of Madras High Court. Hence therespondents are aware of the pendency of these writ petitions andthe direction of this Court to keep one post to each of the writpetitioners herein.9.The learned counsels appearing for the respondents arealso not justified in contending that merely because thepetitioners' names were included in the reserve list, the same willnot confer any right to them. It is an admitted fact that thepetitioners are placed in the reserve/waiting list. As per thestatutory proviso to Rule 10(a)(i) of the State and SubordinateService Rules, the reserve list candidates have a right to getappointed, if the selected candidates failed to join duty in timeby one reason or the other. The rights of the reserve listcandidates gets crystalised the moment the last date for reportingto duty of the selected candidates are over and the reserve listcandidates are deemed to be selected in the resultant vacancies byoperation of law and as such they will get an indefeasible right.It is the legal obligation of the respondents to issue appointmentorders to the reserve list candidates. The non-communication ofthe vacancy position by the Department in time to the secondrespondent will not affect the accrued right of the reserve list https://hcservices.ecourts.gov.in/hcservices/ candidates. If the respondents fail to discharge their statutoryobligation, the petitioners have got every right to seekappointment on the basis of the availability of vacancies due tonon-joining of the selected candidates. The petitioners' right toget selected cannot be allowed to be defeated by the inaction ofthe respondents. If the same is permitted, the respondents candefeat the rights of the reserve listed candidates though theselected candidates failed to join in time, which is to be treatedas arbitrary and capricious and violative of Articles 14 and 16 ofthe Constitution of India. Thus, the second respondent is bound torelease the petitioners' names for appointment in the vacant posts,which arose due to non-joining of the selected candidates.10.Similar issue was considered by a Division Bench of thisCourt in the decision reported in 2008 (3) LW 222 (The Secretary,Tamil Nadu Public Service Commission v. R.Nagarajan & Others). Inparagraphs 12 to 16, the Division Bench considered the operation ofreserve list in respect of selection of Assistant PublicProsecutors, even after the subsequent selection, which was orderedsubject to the pendency of the earlier writ petition. Paragraphs12 to 16 of the said decision are extracted hereunder:"12.Though 10(a)(i) provides forallotment from reserve list for the vacancyin the place of those who have not joinedduty, it cannot be strictly interpreted so asto exclude resultant vacancies caused due tocandidates joined and subsequentlyleft/resigned. The very purpose ofSubordinate Service Rules is to sub-serve theinterest of the public and the process ofselection. No doubt a candidate hasindefeasible right to be appointed for thepost, but when the Writ Petitioners have beenplaced in the reserve list, it is a fallacyto argue that they cannot be appointed in theresultant vacancies. We are of the view thatif such interpretation is to be adopted, theexpression "such reserve list will be inforce .... until the drawal of next selectedlist by the commission", would defeat theintention of the Legislature. We are of theview that a meaningful interpretation of rule10(a)(i) would sub-serve the interest of thepublic. In fact, having noticed the anomaly,the Government has issued amendment to rule 2of Part I and Rules 10(a)(i)(i) and 22(d)under Part II of the General Rules for theTamil Nadu State and Subordinate Services tothe effect that "the reserve list shall be https://hcservices.ecourts.gov.in/hcservices/ operated even against the vacancies causeddue to the fact that the candidates havejoined duty but left thereafter while thereserve list is in force". The learnedCounsel for the Commission has submitted thatthe above amendment has only prospectiveeffect and it cannot be applicable to theWrit Petitioners.13.Three candidates have joined and leftonly to join as Civil Judges [JuniorDivision]. The other candidate Sathasivam hasresigned from service. Having regard to thefacts and circumstances of the case, thelearned Judges allowed the Writ Petitions,directing appointment of Writ Petitionerswhen there was resultant vacancies.14.It is to be noted that AppointingAuthority viz., Government has not preferredany appeal. As held in AIR 1987 SC 169 [MissNeelima Shangla v. State of Haryana andors.], duty of Public Service Commission isonly to make available to the Government acomplete list of qualified candidatesarranged in order of merit. It is theGovernment who strictly appoints in the orderin which they have been placed by theCommission as a result of the examination.When there are resultant vacancies, TNPSCcannot contend that the selected listprepared in 2002 got expired. In fact, whileissuing notification inviting applicationsfor 44 vacancies of Additional PublicProsecutor Grade II, it was notified that"the recruitment of the posts is subject tothe result of various cases filed in the HighCourt Madras, which are still pending".Having said so, the appellant is notjustified in contending that at present thereis no vacancy. This is all the more so, whenthe Government and TNPSC had taken time inthe contempt proceedings for implementing theorder.15.As a result of our above discussion,we find no reason to interfere with thedirections issued in the Writ Petitions andthese writ appeals have no merits and areliable to be dismissed. https://hcservices.ecourts.gov.in/hcservices/

16.In the result, we confirm the orderdirecting appointment of the Writ Petitionersand the writ appeals are dismissed.Consequently, M.P.No.2/2007 is alsodismissed. No costs. We further direct theappellant Commission to include the names ofthe Writ Petitioners in 1998-2002 list ofcandidates selected for appointment asAdditional Public Prosecutor Grade II in theTamil Nadu General Services. The appellantand the second respondent are directed tocomply with the directions of the learnedsingle Judge within four weeks from the dateof receipt of a copy of this Judgment."11.In the light of my above findings and on the basis of theabove Judgment of the Division Bench of this Court and havingregard to the fact that the subsequent selection was allowedsubject to the results of these writ petitions and four postshaving been reserved in favour of the petitioners, the secondrespondent is directed to sent the names of the petitioners to theGovernment for appointment as Assistant Surgeon (Dental) within aperiod of two weeks from the date of receipt of copy of this orderand the respondents 1 and 3 are directed to give postings to thepetitioners within a period of four weeks thereafter.The writ petitions are ordered on the above terms. No costs.Connected miscellaneous petitions are closed. Sd/-Assistant Registrar./true copy/Sub. AssistantRegistrar.vrTo1.The Secretary, Health & Family Welfare Department,Fort St.George, Chennai - 600 009. https://hcservices.ecourts.gov.in/hcservices/

2.The Secretary, Tamil Nadu Public Service Commission,Chennai - 2.3. The Director of Medical & Rural Health Services, Chennai - 600 006.+ 4 CC to Mr.P.H.Manoj Pandian,Advocate SRNO.40111,40112,10113,10114.+ 1 CC to Mr.A.Arul, Advocate SR NO.40219. W.P.Nos.19612 to 19615/2007.rsy(co)pmk/28.7.08.