Judgment 1. The petitioner has approached this Court with the prayer for issuance of a writ in the nature of declaration, to declare that the provisional select list published by the 2nd respondent on 17.7.2007 for recruitment of Sub Inspector of Police(Men-20% departmental quota) 2006 is null and void and to direct the respondents to select and appoint the petitioner as sub Inspector of Police under 20% departmental quota with all consequential benefits. 2. The petitioner belongs to Adi dravida community, who after obtaining decree in Science, entered the service as Grade II Police Constable in Tamil Nadu Special Police Battalion in Kovai Pudur. After serving Tamil Nadu Special Police Battalion for some years, the petitioner was transferred to Coimbatore City Armed Reserve in the year 2005. During his service, the petitioner has received 30 rewards, without any adverse entry. 3. The Director General of Police/Chairman, Tamil Nadu Uniformed Services Recruitment Board invited applications for appointment to the post of Sub Inspector (Men) from open market in the Police Subordinate Service for the year 2005-06. 20% of the vacancies were reserved for service personnel. 4. The petitioner applied for the post of Sub Inspector of Police (men) and was subjected to physical measurement test, endurance test and physical efficiency test held on 6.11.2006, where he was declared successful and was directed to appear for written examination on 20.5.2007. The petitioner was declared successful in the written examination and thereafter, subjected to interview on 11.6.2007, wherein the petitioner claimed to have answered all the questions. In the result published in the internet, the cut-off mark for SC candidates was fixed at 67 and the result declared by the Tamil Nadu Uniformed Services Recruitment Board, showed that the petitioner obtained 67 marks. Inspite of securing cut-off marks, the petitioner was not shown in the select list, because of age tie. 5. It is submitted that though the petitioner participated in three events namely, Rope climbing, 100 mtr. and long jump and has secured 2 star standards in 100 mtr. and long jump and one 1 star std. in rope climbing and the petitioner should have secured 12 marks in physical efficiency test, but was not awarded correct marks in the physical efficiency test. He secured good marks in the written test and also answered all the questions in the interview. and long jump and one 1 star std. in rope climbing and the petitioner should have secured 12 marks in physical efficiency test, but was not awarded correct marks in the physical efficiency test. He secured good marks in the written test and also answered all the questions in the interview. Therefore, in view of the fact that he had secured good marks in the written test, there was no reason for not selecting the petitioner. 6. The submission of the petitioner is that he was purposely awarded less marks in physical efficiency test as well as for viva voce, to favour a persons who obtained less marks in the written examination. The petitioner also submits that he was not awarded marks for extra curricular activities. 7. It is pleaded that according to the scheme of examination, 5 marks were earmarked for sports and games and NCC & NSS. Special procedure was to be adopted for awarding marks for the extra curricular activities which came to be known only at the fag end of the arguments before this Court in the previous writ petitions. 8. It is the case of the petitioner that in a batch cases, counter affidavit was filed in which the learned Additional Govt. Pleader produced a set of papers known as special procedure by which marks were awarded for the extra curricular activities, such as sports and games. The petitioner being outstanding sportsman having represented Bharathiyar University during his college days and represented MGM College, Pollachi in 400 mtrs. Relay, 400 mtrs. Hurdles and 100 mtrs. Hurdles and weightlifting for which he was awarded certificate of merit. The petitioner had also participated in inter-district volleyball championship in the year 2005 and he was awarded diploma, besides participating in inter-College Athlete Association in 400 mtrs. Hurdles, where he stood first. The petitioner also represented Police department, Coimbatore district in Vollyball event and secured first place. He also represented school also in various sports. On these pleadings, it is submitted that petitioner was to awarded additional marks for sports. 9. It is the case of the petitioner that in case he was awarded correct marks, then he would have secured higher marks than the actual marks awarded to him, which could have entitled him to be selected for the post of Sub Inspector of Police. 10. 9. It is the case of the petitioner that in case he was awarded correct marks, then he would have secured higher marks than the actual marks awarded to him, which could have entitled him to be selected for the post of Sub Inspector of Police. 10. It is also the case of the petitioner that there was malpractice in the process of selection therefore, the non selection of the petitioner is arbitrary and discriminatory. That as per the Scheme of examination, 15 marks were earmarked for physical efficiency test, 70 marks for written examination and 15 marks for viva voce which shows that 15 marks for viva voce were the trump card in the hands of the board members to select a person of their choice. That process of selection reveals that the persons who secured less marks in physical efficiency test and written examination were given more marks in the interview and selected whereas candidates who had answered all the questions in viva voce were not selected. The entire process of selection lacked transparency therefore was liable to be quashed. 11. It is also the case of the petitioner that normally in the competitive examination conducted by the Public Service Commission or Recruitment Board, the written examination consists of objective type questions to avoid malpractice, but the respondent No.2 did not follow the objective type of questions in the selection for the post of Sub Inspector of Police, which was however, subsequently followed in the subsequent selection for the year 2007. All these submissions are not available as the petitioner after having taken a chance and on failure to make ground is estopped to challenge the procedure of selection. 12. It is the case of the petitioner that there was malpractice in the process of selection, in awarding more marks for viva voce. That the procedure followed by the respondents cannot be sustained, as it was not open to the respondents to reject a candidate who had put up good performance in the written examination, viva voce as also physical efficiency test, on the ground of tie due to age. The process of selection thus, was depending on luck and chance. 13. That the procedure followed by the respondents cannot be sustained, as it was not open to the respondents to reject a candidate who had put up good performance in the written examination, viva voce as also physical efficiency test, on the ground of tie due to age. The process of selection thus, was depending on luck and chance. 13. It is submitted that the learned Tamil Nadu Administrative Tribunal in a batch of cases issued direction, to absorb the candidates against all the vacancies available as on the date of judgment, whereas in the case of petitioner, subsequent vacancies were not taken into consideration, while preparing the select list. This submission is against basic law that a candidates can be considered against advertised vacancy only unless, it is made clear that claim against future vacancies will also be considered. 14. It is admitted case of the petitioner that the third respondent issued appointment order to the selected candidates and they have been directed to appear before the Police Training College for one year for institutional training and therefore, it is prayed that one post be reserved for the petitioner. It may be pertinent to note here that inspite of the fact that the petitioner has made a specific averment that appointment letter has been issued to the selected candidates and the steps have been taken to send the selected candidates for training, he has not chosen to implead any selected candidate as party to this writ petition. The writ petition therefore suffers from non joinder of necessary parties. 15. Counter affidavit has been filed wherein it is admitted that the petitioner secured total of 67 marks. It is the stand of the respondent No.2 is that the result was published on the internet under two categories; No.1 Open category (Men and Women) No.2 Departmental category (Men and Women) It is submitted that for interview, three times of the actual number of vacancies were called for, for viva voce. It was a condition that a candidate was to secure minimum of 35 marks in the written examination. 16. In the counter, it is further stated that in the judgment delivered in W.P.Nos.14482 of 2007, etc. It was a condition that a candidate was to secure minimum of 35 marks in the written examination. 16. In the counter, it is further stated that in the judgment delivered in W.P.Nos.14482 of 2007, etc. (batch), dated 20.11.2007, in para 6, it was held that "The grievances of the some of the writ petitioner are that the written examination has not been properly conducted, some of the writ petitioners grievance is that the quota fixed for each category has not been followed, and some of them have alleged that the marks for sports certificates have not been properly given and thus, the grievance of the petitioners can be broadly classified in the following lines:- (a) the written examination was not conducted properly and sought for cancellation of the written examination and conduct fresh examination, (b) 20% departmental candidates quota was not published and selections have not been made for full 20% departmental candidate quota, (c) 10% earmarked for the wards of the police personnel was not published separately and that 10% reserved for dependants category has not been filled up, (d) SC and ST quota had not been filled up as the advertisement made, (e) Absolutely, there is no transparency in the selection, (f) Marks have not been awarded for the sports certificates, (g) In the viva-voce, though answered well, they have been given less marks". 17. The stand of the respondents in the counter further is that this Court vide its order, dated 20.11.2007 in W.P.Nos.14482 of 2007, etc., (batch) held in para 9 that "Considering the above facts and circumstances and also considering the various submissions made by the learned Senior counsel, counsels appearing for the petitioners and learned Special Government Pleader appearing for the respondents, the following irresistible conclusions have been arrived at by me:- (a) The Written Test has been conducted by the Recruitment Board in a proper manner, which does not require any interference by this Court. Shading of answers in OMR sheet for written test has been followed in the written examination, which prevails and followed by other recruitment agencies of the Central and State Government like TNPSC, UPSC, Staff Selection Commission, Banking Services Recruitment Board. Shading of answers in OMR sheet for written test has been followed in the written examination, which prevails and followed by other recruitment agencies of the Central and State Government like TNPSC, UPSC, Staff Selection Commission, Banking Services Recruitment Board. (b) The candidates are asked to shade the correct answers in pencils in order to facilitate them to erase the shaded answer, if they so desired, during written test and shade another choice, which cannot be considered as a procedure, that led to malpractice. In the absence of any specific allegations in this respect, it has to rejected in toto. (c) The grievance of the petitioners that the publication of selected candidates under each category or quota was not done, can no more be a grievance, since after filing of the writ petitions, the Recruitment Board has published the result of the selection candidates on each quota. (d) The marks have been awarded for NCC, NSS and other Sports/ Games evolving a formula, which cannot be considered as arbitrary or unreasonable. (e) The interview conducted by the members of the Recruitment Board and awarding marks depending upon the answers which they have given and the other desired requisite, cannot be interfered with, since it is an exclusive domain of the Expert Committee to decide what marks should be assigned to each of the candidates. Further, in the absence of any whisper by the petitioners about any personal bias of the members of the interview committee against the petitioners and also in the absence of any malafide alleged on the part of the interview committee, the attack of awarding less marks cannot be countenanced. Para 10 "Thus taking into consideration the overall facts and circumstances, these writ petitions stand dismissed." 18. The stand in the counter is also that the petitioner secured 12 marks for physical efficiency test, 53 marks in written examination and two marks in viva voce; totalling 67 marks. That the petitioner belongs scheduled caste community for which cut-off mark was 67. It is submitted that the person in the S.C. Category, who is elder in age and secured 67 marks was selected. 19. It is also the positive stand of the respondents that the entire vacancies as notified, have been filled up, and filling up of vacancies over and above the advertised vacancies would be in violation of Article 14 of the Constitution of India. 20. 19. It is also the positive stand of the respondents that the entire vacancies as notified, have been filled up, and filling up of vacancies over and above the advertised vacancies would be in violation of Article 14 of the Constitution of India. 20. It is also not in dispute that order passed by the Hon'ble Single Judge in dismissing the writ petition as referred to above, was confirmed in Writ Appeal in W.P.No.194 of 2007 decided on 28.3.2008. 21. Though the writ petition is squarely covered by the decision of this Court referred to above, as the grounds raised in this writ petition stands rejected by this Court, and that the said decision was also upheld in the Writ Appeal and has attained finality. 22. The learned Senior counsel for petitioner vehemently contended, that after the dismissal of the writ petition, the unsuccessful candidates had approached the respondents under R.T.I. Act, seeking information regarding questions and answers, on the information supplied under the act, they came to know that the marks were awarded for answering wrong key answers whereas marks were not given for answering questions correctly. Therefore, after the receipt of the information, number of writ petitions were filed by number of candidates to challenge the selection process. 23. The Hon'ble Single Judge allowed the writ petition by observing as under: "8. The learned Single Judge after thoroughly going through the records and appreciating the contentions, held as follows: a) The respondents admitted the mistakes in the key answers. b) The mistakes committed by board cannot be employed against the un-selected candidates. c) Petitioners were not aware of the wrong key answers till they got information under Right to Information Act. d) Resjudicata would not arise, when questions involved in the writ petition were not specifically raised and considered earlier. e) There is no delay on the part of the petitioners as the respondents themselves did not verify correctness of answers even after the examination, which is evident from first appellant's letter dated 30.1.2009. d) Resjudicata would not arise, when questions involved in the writ petition were not specifically raised and considered earlier. e) There is no delay on the part of the petitioners as the respondents themselves did not verify correctness of answers even after the examination, which is evident from first appellant's letter dated 30.1.2009. f) The respondents cannot take advantage of their own wrong and contend laches is on the part of the petitioner and issued following directions: "24 Hence after taking into consideration of the above said factual and legal position, this court is of the opinion that it is a fit case where the following directions will have to be issued: (i) The respondents are directed to prepare a list of all the un-selected candidates who have answered question No.11 with option No.(D), Question No.38 with all the answers and question No.44 with option No.(A) and grant marks accordingly. (ii) The respondents are directed to take the cut-off marks fixed for the selection made in the written examination on the basis for respective categories for the consideration of the non-selected candidates who would get higher marks in pursuant to the directions given by this Hon'ble court. (iii) The respondents are directed to conduct vivo-voce Test for those candidates who come within the cut-off marks in pursuant to the granting of higher marks in the written examination. (iv) The respondents are directed to take into consideration of the marks obtained in the interview for those unsuccessful candidates who have already attended the interview and who would be getting additional marks. (v) The respondents are directed to consider the candidates who would become eligible to be selected in view of the directions of this Hon'ble Court by adding the marks due to them in the available vacancies, in the respective categories, as on the last date of the interview conducted. (vi) For the future examinations, the second respondent is directed to verify the key answers immediately after the written examination is over and published the same in the web site of the second respondent as well as in any one of the news papers. (vii) The second respondent is also directed to publish the marks obtained by the candidates in the written examination after the evaluation of the written examination in the web site of the second respondent. (vii) The second respondent is also directed to publish the marks obtained by the candidates in the written examination after the evaluation of the written examination in the web site of the second respondent. (viii) In so far as the petitioner in W.P.Nos.9181 of 2009 is concerned, the respondents are directed to consider the seniority of the petitioner based upon the revised marks by taking into consideration of the marks to be awarded for the right answers in accordance with law."" 24. The order of the Hon'ble Single Judge was challenged before the Hon'ble Division Bench of this Court. The Hon'ble Division Bench allowed the appeal filed by the Government by setting aside the direction partly, except some of the direction with regard to the candidates who had challenged the selection earlier. 25. The Hon'ble Division Bench held that 10 ten candidates out of 23 candidates were found to be eligible for appointment and they were directed to be appointed subject to usual formalities, the Writ Appeal was also allowed by directing the respondents to dispose of the representation filed by the petitioner. However, reading of the judgment of Hon'ble Division Bench shows that no directions were given to consider any candidate, the Hon'ble Division Bench did not interfere with the action of respondents in considering the some more to be eligible. On equity and also under the law, it was not open to respondents to appoint additional candidates. 26. The operative part of the order passed by the Hon'ble Division Bench reads as under: 27. In fine, 1) The appeals filed by the government are allowed setting aside the directions given in the impugned order in para 24(i) to (iv) except para 25(vi) & (vii). 2) As far as 23 old candidates are concerned, as stated above, the list provided by the Advocate General would disclose that revaluation was done and out of 23 candidates 10 candidates are found to be eligible for appointment. Accordingly, they are directed to be appointed subject to usual formalities. 3) W.A.No.1739 of 2010 is also allowed with a direction to dispose of the petitioner's representation dated 9.4.2009. Appeals are allowed as stated above. No costs. 28. However, it is seen that the litigations are due to mistakes committed during setting up question paper. The petitioners are not responsible for wrong key answers. 3) W.A.No.1739 of 2010 is also allowed with a direction to dispose of the petitioner's representation dated 9.4.2009. Appeals are allowed as stated above. No costs. 28. However, it is seen that the litigations are due to mistakes committed during setting up question paper. The petitioners are not responsible for wrong key answers. Though this court found the mistake/wrong committed was unintentional and bonafide, the second respondent has to bear in mind that it is conducting exams to recruit persons for uniformed services. Any irregularity in the process of selection would affect morale of the force and interest of the public. In future the second respondent board should be very seriously and carefully and responsibly conduct exams without giving any room for challenge. In this regard, the learned judge issued general guide lines to be followed in future in para 25 vi, vii of the impugned order and the same are confirmed" 29. The learned Senior counsel vehemently contended, that the petitioner should also be treated similarly and his paper should be revalued, so so to see if he can be selected. This Court cannot issue such direction, it will require revaluation of all the papers and preparation of fresh select list, resulting in setting aside of selected candidates, who are not before this Court and whose selection stands upheld by this Court. 30. The case of the petitioner is squarely covered by the judgment of this Court in W.A.No.194 of 2007, as the petitioner has not raised any ground to challenge the valuation because of wrong key answers. 31. In this case, if the process of selection is vitiated, then this Court had no alternative but to order revaluation of all the answer sheets including selected candidates and thereafter could issue direction to re-determine the merit and fill up the advertised post in view of settled law that this Court cannot increase the vacancies. In case the contention of the learned Senior counsel is accepted, then it will amount to direction to create additional vacancy which would amount to approving the illegal process of selection. 32. Merely by granting relief to the petitioner by creating additional post, the illeaglities cannot be allowed to perpetuated. It was for the petitioner to implead the selected candidates as parties, in case there was illegality in the process of selection. 32. Merely by granting relief to the petitioner by creating additional post, the illeaglities cannot be allowed to perpetuated. It was for the petitioner to implead the selected candidates as parties, in case there was illegality in the process of selection. It is only then that the direction could be issued to consider the representation of the petitioner by setting aside the selection of selected candidates. 33. It may be noticed that this Court on earlier occasion upheld the process of selection. Even the Division Bench in the case of Secretary to Government and others vs. A. Easwaramurthy (W.A.No.1719, 17319, 1602 to 1636 and 1931 to 1933, 1958 of 2010) did not interfered with the selection and upheld the selection of the candidates, it is also admitted that there are no vacancies against which the claim of the petitioner can be considered. The writ petition as framed is not competent, is devoid of merit in view of decision of this Court in W.A.No.1719 of 2010 and batch, therefore, is ordered to be dismissed. No costs.