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2015 DIGILAW 3618 (MAD)

S. Gomathi Nayagam v. State of Tamil Nadu

2015-11-16

N.KIRUBAKARAN, V.RAMASUBRAMANIAN

body2015
JUDGMENT : V. Ramasubramanian, J. 1. A candidate who was unsuccessful, in the selection for recruitment to various posts included in the Combined Subordinate Services Examination, 2010, has come up with the above writ appeal challenging the dismissal of his writ petition. Heard Mr. S. Louis, learned Counsel for the appellant, Mr. M. Govindan, learned Special Government Pleader for the first respondent and Mr. K.K. Senthil, learned Counsel for the second respondent. 2. The State of Tamil Nadu issued an Ordinance known as Tamil Nadu Ordinance 3 of 2010, prescribing a reservation of 20% of the vacancies in all posts in the State and Subordinate Services, to persons who studied in Tamil medium. In exercise of power conferred under Section 8(1) of the said Ordinance, the Government framed a set of Rules under G.O. Ms. No. 145 Personnel and Administrative Reforms (S) Department, dated 30.09.2010. These Rules were called "Tamil Nadu Appointment on preferential basis in the Services under the State of Persons Studied in Tamil medium Rules, 2010". Rule 3 of the said Rules contained as part of the said Rule, an illustration as to how this 20% of the vacancies had to be accommodated in the 200 point roster. This illustration was part of the statutory Rules itself and it reads as follows: ILLUSTRATION Out of 200 seats, 40 seats shall be set apart on preferential basis to persons studied in Tamil medium, in their respective category, in the following manner: General Turn 19 31 48 65 81 100 115 131 148 165 181 200 Backward Classes (other than Backward Classes Musilms) 18 38 58 74 94 114 134 149 170 190 199 Most Backward Classes/De-notified Communities 23 46 73 96 123 146 173 196 Scheduled Castes 26 62 92 126 162 192 Backward Classes Musilms 188 Scheduled Castes Arunthathairs 166 Scheduled Castes 150 3. Thereafter, the Ordinance was replaced by an Act known as Tamil Nadu Act 40 of 2010, which received the assent of the Governor on 27.11.2010. The Act was given retrospective effect from 07.09.2010, the date of issue of the Ordinance. 4. Thereafter, the Tamil Nadu Public Service Commission issued Advertisement No. 258, dated 30.12.2010, inviting applications for direct recruitment to the posts included in the Combined Subordinate Services Examination. The notification contained a lot of instructions and information to candidates who applied for the posts. The Act was given retrospective effect from 07.09.2010, the date of issue of the Ordinance. 4. Thereafter, the Tamil Nadu Public Service Commission issued Advertisement No. 258, dated 30.12.2010, inviting applications for direct recruitment to the posts included in the Combined Subordinate Services Examination. The notification contained a lot of instructions and information to candidates who applied for the posts. In paragraph 3.A(ii) of the said notification, the Tamil Nadu Public Service Commission gave an information about the method to be followed in the application of the rule of reservation for persons who studied in Tamil medium. This paragraph reads as follows: "3.A(ii). in G.O. Ms. No. 145, Personnel and Administrative Reforms (S) Department, dated 30.09.2010, the Government have issued orders to fill up 20% of all vacancies in direct recruitment on preferential basis to persons studied in Tamil Medium (PSTM). Clarification in this regard is awaited from the Government. The selection for the previous recruitment of CSSE-I has not yet finalised. Hence, the distribution of vacancies is not announced in this notification. The Distribution of vacancies will be hosted in the Commission's website before the conduct of Oral Test." 5. In response to the notification, the appellant applied. A written examination was conducted on 30.07.2011. It is relevant to note that the appellant studied in Tamil medium. 6. Unfortunately, when two select lists were published, one on 09.10.2012 and another on 20.11.2012 by the Tamil Nadu Public Service Commission respectively, for the interview posts and for non-interview posts, the name of the appellant was not found in either of the lists. It is only thereafter that the appellant came up with a writ petition in W.P(MD) No. 15383 of 2012. The prayer made by the appellant in the said writ petition was two fold. The first prayer was for quashing the illustration found under Rule 3 of the statutory rules issued under G.O. Ms. No. 145 Personnel and Administrative Reforms (S) Department, dated 30.09.2010. The second part of the prayer made by the appellant was for a direction to the Government to finalise the select list on the basis of the amended Government Order, providing proper roster points for persons appointed against the quota for those who studied in Tamil medium. 7. No. 145 Personnel and Administrative Reforms (S) Department, dated 30.09.2010. The second part of the prayer made by the appellant was for a direction to the Government to finalise the select list on the basis of the amended Government Order, providing proper roster points for persons appointed against the quota for those who studied in Tamil medium. 7. At the time when the writ petition was admitted, this Court was pleased to pass an interim order to the effect that any selection pursuant to the notification, will be subject to the final outcome of the writ petition. 8. After about two years, the Government amended the illustration under Rule 3 of the aforesaid Rules, by issuing an order in G.O. Ms. No. 40 Personnel and Administrative Reforms (S) Department, dated 30.04.2014. By the said Government Order, the Government actually incorporated an Annexure to the Rules, replacing the original illustration under Rule 3 of the Rules issued under G.O. Ms. No. 145 Personnel and Administrative Reforms (S) Department, dated 30.09.2010. 9. Therefore, when the writ petition filed by the appellant came up for final hearing, the appellant placed reliance upon the amended illustration and sought a direction to the Tamil Nadu Public Service Commission to keep the selection in tune with the amended illustration. But, by the judgment dated 25.07.2014, the learned Judge dismissed the writ petition on the ground that G.O. Ms. No. 40 Personnel and Administrative Reforms (S) Department, dated 30.04.2014, cannot be given retrospective effect. Hence, aggrieved by the said decision, the appellant is before us. 10. The main contentions of Mr. S. Louis, learned Counsel for the appellant, are two fold, namely, (a) when this Court had made it clear that the selection would be subject to the final outcome of the writ petition, the learned Judge ought not to have dismissed the writ petition on the ground that the selection was already over and (b) that when the Tamil Nadu Public Service Commission itself had indicated in their notification that the application of the roster points given in the illustration under Rule 3, would be subject to any clarification issued by the Government, the Court ought to have applied G.O. Ms. No. 40 Personnel and Administrative Reforms (S) Department, dated 30.04.2014, for finalising the selection. 11. We have carefully considered the above submissions. 12. No. 40 Personnel and Administrative Reforms (S) Department, dated 30.04.2014, for finalising the selection. 11. We have carefully considered the above submissions. 12. Insofar as the first submission is concerned, it is true that this Court passed an interim order to the effect that the selection made by the Tamil Nadu Public Service Commission will be subject to the final outcome of the writ petition. It does not mean that this Court should actually set aside the G.O. Ms. No. 145 Personnel and Administrative Reforms (S) Department, dated 30.09.2010. This Court had no occasion to consider the validity of illustration given under Rule 3 in G.O. Ms. No. 145 Personnel and Administrative Reforms (S) Department, dated 30.09.2010, in the light of the fact that the Rule was amended by G.O. Ms. No. 40 Personnel and Administrative Reforms (S) Department, dated 30.04.2014. Once the Rule that was under challenge had been amended during the pendency of the writ petition, the first prayer made by the appellant has naturally become infructuous. Once this is understood, then the next question that falls for consideration is as to whether this amendment would have retrospective effect from the date of the notification or not. 13. The answer to the above ancillary question is not too difficult to be found out. Right or wrong, if there is a Rule in force, a notification for recruitment has to be passed only based on such a Rule. Once a process of selection is announced, any amendment to the Rules, cannot take retrospective effect. The law is well settled on the point that the Rules cannot be changed after the issue of the notification. 14. Moreover, the appellant did not come up with a challenge to the illustration given in Rule 3 in G.O. Ms. No. 145 Personnel and Administrative Reforms (S) Department, dated 30.09.2010, at the earliest point of time. G.O. Ms. No. 145 Personnel and Administrative Reforms (S) Department, was issued on 30.09.2010. The notification issued by the Tamil Nadu Public Service Commission was dated 30.12.2010. The appellant applied in response to the notification and appeared for the written examination on 30.07.2011. At that time, the appellant knew the roster points that were reserved for persons who studied in Tamil medium and he had no quarrel with the same. The notification issued by the Tamil Nadu Public Service Commission was dated 30.12.2010. The appellant applied in response to the notification and appeared for the written examination on 30.07.2011. At that time, the appellant knew the roster points that were reserved for persons who studied in Tamil medium and he had no quarrel with the same. It is only after the select lists were published, one for interview posts on 09.10.2012 and another for non-interview posts on 20.11.2012, that the appellant chose to challenge the illustration contained in Rule 3 under G.O. Ms. No. 145 Personnel and Administrative Reforms (S) Department, dated 30.09.2010. Therefore, even if we hold that the reasoning given by the learned Judge is not correct, the conclusion reached by the learned Judge to dismiss the writ petition cannot be found fault with. The appellant chose to accept the illustration given in G.O. Ms. No. 145 Personnel and Administrative Reforms (S) Department, dated 30.09.2010 and accepted the notification for recruitment as it is. Therefore, it is not open to him to come up with a challenge to the notification, after finding himself not included in the select list. 15. The second submission of the learned Counsel for the appellant is based upon paragraph 3.A(ii) of the notification. We have already extracted the above portion. 16. The contention of the appellant is that the Tamil Nadu Public Service Commission had realised the mistake in the illustration and had assured the candidates that the selection will be based upon a correct application of the rule of reservation of 20% against the correct roster points. Therefore, it is the contention of the learned Counsel for the appellant that the Tamil Nadu Public Service Commission was obliged to apply the illustration contained in G.O. Ms. No. 145 Personnel and Administrative Reforms (S) Department, dated 30.09.2010 as the same will be in tune with paragraph 3.A(ii) of the notification. 17. But, we are unable to accept the said contention. Paragraph 3.A(ii) of the notification did not in any way say that that the illustration contained in G.O. Ms. No. 145 Personnel and Administrative Reforms (S) Department, dated 30.09.2010, was erroneous. It merely stated that the selection of the previous recruitment had not yet been finalised and that therefore the distribution of vacancies is not announced in the notification. Paragraph 3.A(ii) of the notification did not in any way say that that the illustration contained in G.O. Ms. No. 145 Personnel and Administrative Reforms (S) Department, dated 30.09.2010, was erroneous. It merely stated that the selection of the previous recruitment had not yet been finalised and that therefore the distribution of vacancies is not announced in the notification. As a matter of fact, the distribution of vacancies had been indicated in the illustration under Rule 3 of the G.O. Ms. No. 145 Personnel and Administrative Reforms (S) Department, dated 30.09.2010. The fact that the said illustration was found fault with either by this Court in some cases or by the Tamil Nadu Public Service Commission on earlier occasions, is no ground to direct the Tamil Nadu Public Service Commission to conduct the selection de hors the statutory Rules. The Tamil Nadu Public Service Commission is only a recruiting agency and it has no role to question the validity of the Rules. If there is a Rule, the Tamil Nadu Public Service Commission is obliged to carry out the selection in accordance with the Rule. If the Rule is amended after the notification, the notification cannot automatically get amended unless the Rules are given retrospective effect. Insofar as the present selection is concerned, it is not the case of the appellant that the selection of persons to 20% of the vacancies is not against the roster points given in the illustration under Rule 3. His case is that the illustration contained wrong roster points which have been admitted by the Tamil Nadu Public Service Commission and it has also been admitted by the Government by way of an amendment. But, unfortunately, if a recruitment takes place as per the same statutory rules in force, the final selection should confine to the statutory rules. If merely because the statutory rules are later amended, but, without giving retrospective effect, the selection cannot be assailed unless a person had challenged without participating in the selection that the notification was published on the basis of the wrong Rule. Therefore, the final conclusion reached by the learned Judge cannot be found fault with. Hence, this writ appeal is dismissed. Consequently, the connected miscellaneous petition is also dismissed. No costs.