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2014 DIGILAW 1448 (MAD)

Ezhilventhan v. Government of Tamil Nadu

2014-06-17

S.NAGAMUTHU

body2014
Judgment : 1. The Tamil Nadu Public Service Commission (for short TNPSC) issued Advertisement No.248 dated 21.07.2010 inviting applications for direct recruitment to the post of Village Administrative Officer in Tamil Nadu Ministerial Service (2009-2011) and Village Administrative Officer (Shortfall vacancies for SC/ST). Under the first category, 1576 vacancies were notified and under the second category viz., shortfall vacancies for SC/ST, 1077 vacancies were notified. 2. Subsequently, TNPSC issued Advertisement No.256, dated 16.12.2010 modifying the vacancy position, thereby, notifying a total number of 3484 vacancies in the Tamil Nadu Ministerial Service for the post of Village Administrative Officer. 3. The petitioners made applications. The procedure for selection is dealt with in Clause 8 of the Advertisement, which states that the selection will be made on the basis of the marks obtained in the Written Examination and District-wise option exercised by the candidates to be obtained at the time of verification of original documents. The rule of reservation is applicable. The petitioners participated in the Written Examination. 4. The TNPSC published the list of Register Numbers of candidates selected provisionally for appointment by direct recruitment to the said post, for which written examinations were held on 20.02.2011. Along with the same, a list of Register Numbers of candidates, who have been placed in the Reserve List under various categories was also published. The petitioners were all in the Reserve List. 5. According to the petitioners, as per Rule 15-A of the Tamil Nadu State and Subordinate Service Rules, the Reserve List shall be in force until the Regular List is drawn up subsequently in the next selection process. This provision was introduced with effect from 16.08.1982. The petitioners claim that after the publication of the list of selected candidates, despite call letters, several candidates did not join and several others joined the service, but left. As against those vacancies, according to the petitioners, for the period of one year from the date of publication of results, the said Reserve List should have been operated. But this was not done. Instead, the TNPSC issued another advertisement (Vide Advertisement No.26/2012) on 09.07.2012 for recruitment for the year 2012-2013. 6. As against those vacancies, according to the petitioners, for the period of one year from the date of publication of results, the said Reserve List should have been operated. But this was not done. Instead, the TNPSC issued another advertisement (Vide Advertisement No.26/2012) on 09.07.2012 for recruitment for the year 2012-2013. 6. Therefore, some of the candidates filed a writ petition in W.P.No.15742 of 2012 before this Court seeking a mandamus, directing the TNPSC to fill up the unfilled vacancies from the Reserve List as per the results published by the second respondent on 19.07.2011 and 13.09.2011. When the said writ petition came up for hearing before this Court on 03.10.2012, the learned Standing Counsel appearing for the TNPSC submitted that TNPSC was taking steps to operate the Reserve List and fill up all the vacancies from out of the Reserve List. The said submission made by the learned Standing Counsel for TNPSC was recorded by this Court in Paragraph 6 of the order dated 03.10.2012. 7. Based on the above submission, this Court issued a direction to the TNPSC to operate the Reserve List. In paragraphs 6 to 8 of the said order, this Court has directed as follows:- "6. The learned counsel for the 2rd respondent Commission would submit that all the District Collectors have submitted the details of vacancy position and, as of now, there are 329 vacancies and some more reports are also likely to be received in future in respect of more number of vacancies. The learned Standing Counsel would further submit that based on the present position, namely, as against 329 vacancies, the 2nd respondent Commission is taking steps to operate the reserved list and fill up all the 329 vacancies from out of the reserved list. She would further submit that if any more vacancies (notified) are brought to the notice of the 2nd respondent Commission, the same will also be filled up from out of the reserved list. She would also submit that the reserved list in question shall be in operation till the end of December 2012. The said statement is recorded. 7. In view of the above, in my considered opinion, no further adjudication is required in this writ petition, except recording the statement made by learned Standing Counsel for the respondent Commission. 8. She would also submit that the reserved list in question shall be in operation till the end of December 2012. The said statement is recorded. 7. In view of the above, in my considered opinion, no further adjudication is required in this writ petition, except recording the statement made by learned Standing Counsel for the respondent Commission. 8. In the result, the writ petition stands disposed of recording the statement made by the learned Standing Counsel for the Tamil Nadu Public Service Commission. The 2nd respondent -Tamil Nadu Public Service Commission is directed to expedite the process of operating the reserved list relating to the direct recruitment to the post of Village Administrative Officers. Consequently, connected MP is closed. " 8. Yet another batch of candidates filed a writ petition in W.P.No.11772 of 2012, challenging the advertisement issued under Notification No.26/2012 dated 09.07.2012 and seeking a further direction to operate the Reserve List. That writ petition was dismissed. As against the same, a writ appeal was filed before the Madurai Bench of this Court in W.A. (MD)No.1017 of 2012. In that writ appeal, again, the learned Standing Counsel appearing for the TNPSC submitted that as per Rule 15-A of the Tamil Nadu State and Subordinate Service Rules, Reserved List, wherein the appellants had been included was still in operation and they would be considered for allotment to the post of Village Administrative Officer as and when their turn comes. 9. Recording the same, the writ appeal was disposed of by judgment dated 05.12.2012. In Paragraphs 2 to 4, the Division Bench has held as follows:- "2. Mr.Prabhu Rajadurai, learned counsel for the appellants would contend that the names of the appellants are kept in the reserved list and their opportunity to be selected for the subsequent vacancy may not be affected. It is contended that once the current list of selected candidates for TNPSC Village Administrative Officer Exam 2012 is released, the appellants may not have the chance of getting the relief of being selected for the subsequent vacancy to the post of Village Administrative Officer. 3. It is contended that once the current list of selected candidates for TNPSC Village Administrative Officer Exam 2012 is released, the appellants may not have the chance of getting the relief of being selected for the subsequent vacancy to the post of Village Administrative Officer. 3. Mr.N.S.Nandakumar, learned Senior Standing Counsel for Tamil Nadu Public Service Commission would submit that as per Rule 15-A of the State and Subordinate Service Rules, the reserved list, wherein the appellants have been included is still in operation as and when their turn comes they will be considered for allotment to the post of Village Administrative Officer. 4. Recording the said submission of the learned Senior Standing Counsel for Tamil Nadu Public Service Commission, the Writ Appeal is disposed of. No costs. Consequently, connected M.P.(MD)No.1 of 2012 is closed." (Emphasis added) 10. Yet another writ petition was filed before this Court in W.P.No.30705 of 2012 by two other candidates, who are similarly placed, seeking a similar relief. In that, by an order dated 29.04.2013, this Court passed the following order:- "In pursuance of the orders passed by me on 19.04.2013, it appears that the Government has collected details from three Districts. The learned Special Government Pleader sought further time to collect details from other Districts. Therefore, the matter is adjourned to 03.06.2013. In the meantime, the details collected from the Districts shall be forwarded by the first respondent, to the Public Service Commission and the Public Service Commission shall act upon such information, insofar as operating the Reserve List is concerned." 11. Despite these repeated undertakings given before this Court and the orders passed by this Court, the Reserve List has not been operated as against the vacancies covered under the said notification and that the petitioners are deprived of appointment. Therefore, they have come up with this writ petition seeking appropriate relief. 12. The Under Secretary, Tamil Nadu Public Service Commission, filed a counter affidavit dated 15.04.2014, wherein, it is stated that as per the order of this Court in W.P.No.15742 of 2012, the Reserve List for the year 20092011 was kept valid upto 31.12.2012. But no vacancy particulars was received either from Commissioner of Revenue Administrative or from any District Unit Officers upto 02.01.2013 to operate the Reserve List further. But no vacancy particulars was received either from Commissioner of Revenue Administrative or from any District Unit Officers upto 02.01.2013 to operate the Reserve List further. Hence, the first Phase of Certificate Verification and Counselling for Village Administrative Officer Recruitment 2012-13 was fixed only on 03.01.2013 and 04.01.2013 i.e., after 31.12.2012. Thus, the orders of this Court have been complied with. It is further stated in the counter that the selection list for the subsequent recruitment to the post of Village Administrative Officer-2012-2013 was drawn on 03.01.2013 itself and therefore, the Reserve List drawn previously for Village Administrative Officer - 2009-2011 had lost its validity as per Rule 15-A under Part I of the Tamil Nadu State and Subordinate Service Rules. 13. It is also stated in the counter by the TNPSC that as per interim orders, the Commissioner of Revenue Administration had sent the particulars of the candidates, who had not joined and also the candidates who had joined and left particulars relating to VAO-2009-2011 on 05.06.2013 i.e., after the drawal of next selection list. It is further stated that since the said list of not joined and joined and left vacancies received from the Commissioner of Revenue Administration was not in full fledged manner, the Commissioner, Revenue Administration had been requested to send modified correct list of not joined and joined and left vacancies for the year 2009-2011 to the Commission's Office to appraise the fact before the Court in W.P.No.30705 of 2012. It is further stated that the Commissioner of Revenue Administration had sent all the vacancy particulars in full fledged manner, lastly on 18.12.2013. The Reserve List lost its validity as per Rule 15-A under Part I of the Tamil Nadu State and Subordinate Service Rules since the next selection list for Village Administrative Officer had been drawn and hence, the Commissioner is not in a position to operate the Reserve List for the year 2009-2011. It is further stated that if the Reserve List is operated at this stage, it would open the flood gates to many more law suits pertaining to other recruitments on citing this as precedent. 14. It is further stated that if the Reserve List is operated at this stage, it would open the flood gates to many more law suits pertaining to other recruitments on citing this as precedent. 14. The TNPSC has filed an additional counter affidavit, dated 23.04.2014, in which, it is stated that the number of vacancies notified and filled were 3484 and subsequently not joined and joined but left candidates vacancies received from all District Units vide CRA Letter dated 15.09.2013 and filled from Reserve List were 331. It is further stated that in the mean while, notification for VAO Recruitment 2012-2013 had been published under Notification No.26/2012, dated 09.07.2012. It is reiterated that since the selection list for the subsequent recruitment was drawn on 03.01.2013 itself, the Reserve List for the year 2009-2011 had lost its validity. 15. The Joint Secretary to Government, Revenue Department has filed a detailed counter affidavit dated 30.05.2014, wherein, it is inter alia stated that since the TNPSC did not write to the Government asking for the vacancy position, the Government was not in a position to send the details before the expiry of the validity period of the Reserve List. But the learned Senior Counsel for the TNPSC would submit that it is true that no such letter was addressed to the Government, requesting them to submit the list of unfilled vacancies or vacancies caused due to the candidates leaving the post after joining. Further, he would submit that such letters were sent to the District Collectors, but there was no response from the District Collectors and therefore, the Commission finalised the subsequent list and thereby, allowing the earlier Reserve List to lose its validity. 16. I have heard this matter at length on several days. Mr.R.Muthukumarasamy, the learned Senior Counsel appearing for TNPSC extensively argued the matter regarding the real position, which was also supported by Mr.PH.Arvindh Pandian, learned Additional Advocate General appearing for the Government. I have heard the learned counsel appearing for the petitioners as well and I have also perused the records carefully. 17. From the submissions made by the learned counsel on either side and from the pleadings placed before this Court, it is crystal clear that as per Rule 15-A of the Tamil Nadu State and Subordinate Service Rules, Reserve List will be valid until the Regular List is drawn up subsequently. 17. From the submissions made by the learned counsel on either side and from the pleadings placed before this Court, it is crystal clear that as per Rule 15-A of the Tamil Nadu State and Subordinate Service Rules, Reserve List will be valid until the Regular List is drawn up subsequently. For better understanding, Rule 15-A is extracted hereunder:- "(15-A)Reserve List - "Reserve List" shall mean a list which is prepared so as to contain not less than 25% of the candidates of each reservation group including General Turn in the regular list and shall be in force until the regular list is drawn up subsequently." 18. In this case, the result of the examination (vide Advertisement for the year 2009-2011) was published on 19.07.2011 and 13.09.2011 for general and shortfall respectively. As per Rule 15-A, the Reserve List should be in operation until the next regular list is drawn. From the submission made before this Court in earlier writ petition, it is crystal clear that many of the vacancies which remained unfilled were filled up by operating the Reserve List. But vacancy position was not ascertained by the TNPSC from the Government and as a result, the Reserve List was not fully operated. 19. Though it is submitted by the learned Senior Counsel for TNPSC that the Commission was not at fault, I find that to some extent TNPSC is to be blamed for not having addressed to the Government, calling for the vacancy position so as to operate the Reserve List. Instead, TNPSC had addressed to the District Collectors individually to send the vacancy caused due to non joining of candidates or candidates joining and leaving the job in the respective district. Unfortunately, the District Collectors did not respond to the letter of the TNPSC. I am really surprised as to how the District Collectors, who are supposed to be very responsible, could omit to respond to the letter of the TNPSC to inform the vacancy position. The District Collectors concerned did not even inform the Government about the communication from the TNPSC. Thus, the Government was kept in dark. The Government was informed of only belatedly after the last order passed by this Court in earlier writ petition. The Government, thereafter, collected the vacancy particulars and forwarded the same to TNPSC. The District Collectors concerned did not even inform the Government about the communication from the TNPSC. Thus, the Government was kept in dark. The Government was informed of only belatedly after the last order passed by this Court in earlier writ petition. The Government, thereafter, collected the vacancy particulars and forwarded the same to TNPSC. Now, the TNPSC claims that it is not in a position to operate the Reserve List, because, by the time when it received the vacancy position from the Government, subsequent regular list had already been drawn up on 03.01.2013 for the year 2012-2013. There can be no controversy before this Court that till 03.01.2013, Reserve List was in operation and the same should have been operated. The same was not operated by the TNPSC to fill up those vacancies, because the TNPSC was not informed of the vacancy position. Though TNPSC blames the District Collectors for not having sent the vacancy position and though the Government claims that the Government was not addressed by the TNPSC, the fact remains that the District Collectors did not respond to the repeated communications from the TNPSC calling for vacancy position. For the fault or default of one or the other of these Governmental organisations, the petitioners cannot be allowed to suffer. Had the vacancy position been given to the TNPSC on time, certainly, the Reserve List would have been operated by the TNPSC. Regarding this position, the learned Senior Counsel for TNPSC is fair to say that the TNPSC could not operate the Reserve List only for want of communication from the Government or from the District Collectors regarding the actual vacancy position. He would fairly submit that if TNPSC had been furnished with the details of the vacancy position, Reserve List would have been operated before 03.01.2013. 20. Having said all these things, at the end, the learned Senior Counsel appearing for TNPSC would submit that as a special case, considering the plight of the candidates, who were in the Reserve List and considering the fact that candidates in the Reserve List were not at all at fault, TNPSC is prepared to operate the Reserve List now based on the vacancy position furnished by the Government. 21. Today, the Joint Secretary, TNPSC has filed an affidavit dated 17.06.2014. In paragraphs 4 and 5, she has stated as follows:- "4. 21. Today, the Joint Secretary, TNPSC has filed an affidavit dated 17.06.2014. In paragraphs 4 and 5, she has stated as follows:- "4. Based on the directions of the Hon'ble High Court, the Commissioner of Revenue Administration, Chennai -5, has furnished that 30 vacancies have arisen due to non-joining of candidates of the VAO Recruitment (2009-11) and that 322 vacancies have fallen vacant due to joined candidates who have left the service in the post of VAO, prior to counselling held on 03.01.2013 for the next VAO Recruitment (2012-13). The vacancies totalling 352 (30+322) have been stated to have accrued prior to the counselling, that is, before 03.01.2013 (up to 02.01.2013) and that the total vacancy particulars together with District-wise Name and Register No. of the candidates who did not join or joined and left are awaited from the Commissioner of Revenue Administration, Chennai -5. And if the above vacancies have been included in the Current Notification for 2013-14, the Commissioner of Revenue Administration should sent revised request deleting those vacancies from the current VAO Recruitment (2013-14). 5. The details furnished by the office of the Commissioner of Revenue Administration will be scrutinized regarding the category of the vacancies furnished and verification of eligibility of the candidates to be fitted against the vacancies, in accordance with law." 22. The learned Additional Advocate General appearing for the Government would submit that he has got written instructions from the Secretary to Government, Revenue Department in Letter No.14436/Ser 7(1)/2014-8 dated 13.06.2014. The said letter is accompanied by a Position Note prepared by the Secretary to Government, Revenue Department. In the said Note, in Paragraphs 5 and 6, it is stated as follows:- "5. In this regard it is submitted that the Additional Chief Secretary/Commissioner of Revenue Administration in his report dated 12.06.2014 (copy enclosed) has stated that in position note submitted by the Joint Secretary TNPSC it has been mentioned that 30 vacancies have arisen due to non joining of candidates of the VAO Recruitment (2009-11) and that 322 vacancies have fallen vacant due to joined candidates who have left the services in the post of VAO prior to drawal of next selection list notified on 30.11.2012 for the next VAO Recruitment (2012-13). The vacancies totalling 352 (30+322) have been stated to have accrued prior to the drawal of selection list and that the total vacancy particulars together with District wise Name and Register No. for the candidates who did not join or joined and left are awaited from the Commissioner of Revenue Administration, Chennai -5. And if the above vacancies have been included in the Current Notification for 2013-14, the Commissioner of Revenue Administration should sent revised request deleting the 352 vacancies from the current VAO Recruitment (2013-14). But in this office letter dated 09.06.2014 it has been stated that vacancies due to 30 non joined candidates and 322 joined and left candidates have been arisen between 15.09.2012 to 02.01.2013 and not as on 30.11.2012 as stated in the position note filed by the Joint Secretary to TNPSC. 6. Further, in the above W.P.No.10218/2014 filed before the Madras High Court, by V.Ezhilventhan and 24 others, the counter has been filed and so far judgment has not been pronounced by the Hon'ble High Court, Chennai. At this juncture, the modification for amendment to G.O.(Ms)No.512, Revenue, dated 11.12.2013 is not possible. The variation of period mentioned by the TNPSC should be correctly indicated to arrive at the actual left out vacancies i.e., 15.09.2012 to 30.11.2012 or 15.09.2012 to 02.01.2013. Only then the actual vacancies can be arrived at." 23. Referring to the above letter and on instructions, the learned Additional Advocate General would submit the Government has got no objection for the TNPSC to operate the Reserve List as a One Time Measure to fill up the above stated 352 vacancies, which admittedly, occurred between 15.09.2012 and 02.01.2013. The learned Senior Counsel for TNPSC as well as the learned Additional Advocate General would fairly concede that 30 vacancies have arisen due to non-joining of selected candidates and 322 were due to candidates joined and left. 24. The learned counsel for the petitioner would rely on a judgment of the Hon'ble Supreme Court reported in (1992) 1 SCC 105 [Dr.Uma Kant vs. Dr.BhikaLal Jain and other], wherein, the Hon'ble Supreme Court has held that the vacancies, which were caused due to candidates joining and leaving shall also be filled up by operating Reserve List. 25. 24. The learned counsel for the petitioner would rely on a judgment of the Hon'ble Supreme Court reported in (1992) 1 SCC 105 [Dr.Uma Kant vs. Dr.BhikaLal Jain and other], wherein, the Hon'ble Supreme Court has held that the vacancies, which were caused due to candidates joining and leaving shall also be filled up by operating Reserve List. 25. The learned Senior Counsel for TNPSC would also submit that as a One Time Measure, the TNPSC will operate the Reserve List and fill up the said 352 vacancies as far as possible. He would further submit that, after operating the Reserve List as a One Time Measure, if any more vacancies remained out of these 352 vacancies as unfilled, the same may be permitted to be filled as per the Advertisement No.384 dated 17.03.2014. The said statement is recorded. 26. In view of the above submissions made, since I hold that the petitioners as well as other candidates in the Reserve List were not at fault, it would be appropriate to issue direction to TNPSC to operate the Reserve List to fill up the 352 vacancies as a One Time Measure. Since it is stated that these 352 vacancies have been notified as per Advertisement No.384, dated 17.03.2014 issued by TNPSC, the vacancies in the said notification shall stand modified subject to the vacancies which may remain unfilled after operating the Reserve List pursuant to this order. 27. In the result, the writ petition is disposed of in the following terms:- i) The TNPSC shall operate the Reserve List mentioned above to fill up 352 vacancies, which either remained vacant or fell vacant between 15.09.2012 and 02.01.2013. ii) The Secretary to Government, Revenue Department is directed to furnish the actual vacancy position in each District. The names and Roll numbers of the candidates, who did not join or joined and left and their community and the category under which they were selected should also be furnished, so as to enable the TNPSC to adhere to roster system. It shall be done by the Secretary to Government, within a period of two weeks from the date of receipt of a copy of this order. It shall be done by the Secretary to Government, within a period of two weeks from the date of receipt of a copy of this order. iii) After receipt of the above particulars from the Government, the TNPSC shall operate the Reserve List and adhere to roster system and other rules of reservation and shall fill up as far as possible all the 352 vacancies as One Time Measure. This exercise shall be completed within a further period of 6 weeks from the date of receipt of the particulars from the Government. iv) It is further directed that out of the 352 vacancies, after the Reserve List is operated, if any more vacancies remain, the same shall be covered in Advertisement No.382, dated 17.03.2014 issued by TNPSC and shall be filled up accordingly. To this extent, Advertisement No.382, dated 17.03.2014 shall stand modified. v) It is further clarified that going by the peculiar facts and circumstances of the case, this Court, by consent of parties, viz., the Government as well as TNPSC has issued the above direction to operate the Reserve List, though it is stated as per Rule 15-A, Reserve List loses its validity on or after 03.01.2013. Therefore, this order shall not be quoted as precedent for any purpose in future. No costs. Consequently, connected miscellaneous petitions are closed.