D.Suganya Vs the State of Tamil Nadu

The Director of Higher Education, O/o. the Director of Higher Education Office, 9^th Floor, EVK Sampath Building, College Road,Chennai - 6. ... Respondents

¶15

1/11

¶16

https://www.mhc.tn.gov.in/judis

¶17

W.P.(MD) No.2082 of 2017

¶18

PRAYER in W.P.:

¶19

To issue a Writ of Certiorarified Mandamus or any other appropriate writ or order or direction in the nature of writ calling for the records relating to the impugned order passed by the 2^nd respondent in Memorandum No.672/OTD-H1/2010 dated 29.12.2016 and quash the same was illegal and consequentially to direct the 2^nd respondent to select the petitioner's candidature (Registration No. 00101071) for appointment to the post of College Librarian in Government College in pursuant to the notification issued by the 2^nd respondent in Advertisement No.233 dated 17.02.2010 in the available vacancies more particularly in the vacancy belonging to B.C. (Muslim) category caused due to the paucity of the candidate within the period that may be stipulated by this Hon'ble Court.

¶20

PRAYER in W.M.P:

¶21

To grant an ad-interim direction directing the respondents to keep one post College Librarian in Government College covered under the selection process initiated in pursuance to the notification issued by the 2^nd respondent in advertise No.233 dated 17.02.2010, vacant pending disposal of the above Writ Petition and thus render justice.

¶22

APPEARANCE OF PARTIES:

¶23

For Petitioner : Mr.M.Mohammed Zamil, Advocate for M/s.Ajmal Associates

¶24

For Respondents : Mr.T.Amjad Khan Government Advocate for R1 & R3 : Mr.J.Anandakumar, Standing Counsel for R2

¶25

2/11

¶26

https://www.mhc.tn.gov.in/judis

¶27

W.P.(MD) No.2082 of 2017

¶28

J U D G M E N T

¶29

Heard.

¶30

In this writ petition, the Petitioner challenges the order of the

¶31

2^nd Respondent, the Tamil Nadu Public Service Commission, contained

¶32

in Memorandum dated 29.12.2016, and seeks a consequential direction to select her for appointment to the post of College Librarian in Government Colleges pursuant to the notification issued in Advertisement No. 233, dated 17.02.2010, against the available vacancy, more particularly the vacancy reserved for the Backward Class (Muslim) category.

¶33

The writ petition was admitted on 07.02.2017. In W.M.P. (MD)

¶34

No. 1735 of 2017, filed seeking an interim direction, the court was stated that any appointment made would be subject to the result of the writ petition. Upon notice from this Court, the 2nd Respondent filed a counter affidavit dated 23.11.2017. The Petitioner thereafter filed a rejoinder affidavit dated “Nil”, February 2020.

¶35

While the Petitioner’s original affidavit comprised only seven

¶36

3/11

¶37

https://www.mhc.tn.gov.in/judis

¶38

W.P.(MD) No.2082 of 2017

¶39

pages, the rejoinder affidavit extended to twenty-five pages. The 2nd Respondent, Tamil Nadu Public Service Commission, had issued a notification dated 17.02.2010, vide Advertisement No. 233, inviting applications for appointment to the post of College Librarian. The said advertisement initially notified 56 vacancies, which were subsequently reduced to 37.

¶40

After completion of the selection process, against the 37 notified vacancies, the Tamil Nadu Public Service Commission recommended the names of 27 candidates for appointment by direct recruitment, while the name of one candidate was withheld. Pursuant thereto, the Government issued orders of appointment based on the communal roster, vide G.O.Ms. No. 31, Higher Education(F2) Department, dated 24.02.2014. The list contained the names of 26 selected candidates, arranged as per the roster, and one candidate whose name had been withheld. The Petitioner’s name did not find place in the selection list.

¶41

The Petitioner contends that information obtained under the

¶42

Right to Information Act from the Public Information Officer attached to the Director of Collegiate Education revealed that 28 persons had been

¶43

4/11

¶44

https://www.mhc.tn.gov.in/judis

¶45

W.P.(MD) No.2082 of 2017

¶46

selected, appointment orders were issued to 26 persons, and only 22 had joined duty as College Librarians, as per communication dated 20.06.2014. The Petitioner has placed on record several such pieces of information obtained through RTI applications made in the name of her father and other individuals. In one such information furnished by communication, dated 15.03.2016, it was stated that, as three persons had not joined duty, the Government issued orders appointing three other candidates from the wait list.

¶47

The Petitioner submitted a representation to the Government on 02.07.2016. Thereafter, she filed W.P.(MD) No. 17359 of 2016 before this Court, seeking a direction to the Respondents to appoint her as a College Librarian in the category of Backward Class (Muslim). By order dated 15.09.2016, the said writ petition was disposed of with a direction to the Respondents to consider her representation dated 02.07.2016 within a period of twelve weeks. Pursuant to the said direction, the 2nd Respondent, Tamil Nadu Public Service Commission, passed the order dated 29.12.2016, which is impugned in the present writ petition. The said order reads as follows:—

¶48

“The attention of Tmt. D.Suganya is drawn to the

¶49

5/11

¶50

https://www.mhc.tn.gov.in/judis

¶51

W.P.(MD) No.2082 of 2017

¶52

references cited and she is informed that as the reservation to Backward Classes (Muslim) has been made from within the reservation for Backward Classes, the carry forward procedure available for Backward Classes (as extended in the reference fourth cited) is applicable to Backward Classes (Muslim) also. Hence, the one and only vacancy reserved for the candidates in the BC (Muslims) (General) category which could not be filled up due to paucity of candidates in that category, was carried forward to the next recruitment. Therefore, her request for appointment to the post of College Librarian in Government Colleges in Tamil Nadu Collegiate Educational Service (1996-2009) against the vacancy in the BC (Muslim) (General) category which has been carried forward, cannot be complied with.

¶53

She is further informed that the Commission makes / carries out recruitment on the basis of estimate of vacancies furnished by the concerned department (s) / Government. The number of vacancies advertised is only approximate and is liable to modification with reference to vacancy position at any time before finalization of selection for Oral Test or selection for appointment, as the case may be. The said fact has been mentioned in the Commission’s notification dated 19.03.2010 relating to the said recruitment.”

¶54

The Petitioner contended that, although the selection was

¶55

finalised on 24.02.2014, her marriage in the year 2013 caused delay in approaching this Court. Such reasoning cannot be accepted. The Petitioner cannot, after a lapse of three years, seek to unsettle the selection process and appointments already made, thereby disturbing the

¶56

6/11

¶57

https://www.mhc.tn.gov.in/judis

¶58

W.P.(MD) No.2082 of 2017

¶59

rights of the selected candidates. The writ petition is liable to be rejected on the ground of laches. In this context, the Hon’ble Supreme Court, in

¶60

P.S. Sadasivaswamy v. State of Tamil Nadu, reported in (1975) 1 SCC 152, has held that petitions under Article 226 are not liable to be entertained in cases of delay and laches. The relevant portion reads as follows:—

¶61

“It is not that 'here is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters- The petitioner's petition should, therefore have been dismissed in limine. Entertaining such petitions is a waste of time of the court. It clogs the work of the Court and impedes the work of the court in considering legitimate grievances as also its normal work. We consider that the High court was right in dismissing the appellant's petition as well as the appeal.”

¶62

Further, the Petitioner has not impleaded any of the selected

¶63

candidates, either individually or in a representative capacity. The plea

¶64

7/11

¶65

https://www.mhc.tn.gov.in/judis

¶66

W.P.(MD) No.2082 of 2017

¶67

that the Petitioner is claiming only an unfilled seat and, therefore, there was no necessity to implead any candidate who may be affected by the outcome of this writ petition, cannot be accepted. What is under challenge is the selection itself, followed by the roster-based arrangement of appointments. In such circumstances, the presence of affected parties is essential. In this regard, reference may be made to the decision of the Hon’ble Supreme Court in Prabodh Verma v. State of Uttar Pradesh, reported in (1984) 4 SCC 251 , wherein it was held as follows:—

¶68

“…we would like to point out that the writ petition filed by the Sangh suffered from two serious, though not incurable, defects. The first defect was that of non-joinder of necessary parties. The only respondents to the Sangh's petition were the State of Uttar Pradesh and its concerned officers. Those who were vitally concerned, namely, the reserve pool teachers, were not made parties-not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as respondents. The matter, therefore, came to be decided in their absence. A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large..

¶69

A High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being

¶70

8/11

¶71

https://www.mhc.tn.gov.in/judis

¶72

W.P.(MD) No.2082 of 2017

¶73

before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them, the High Court ought to dismiss the petition for non- joinder of necessary parties.”

¶74

On this score also, the writ petition is liable to be dismissed. Even otherwise, in the counter affidavit filed by the Tamil Nadu Public Service Commission, it is stated that the Petitioner had secured 171 marks and was ranked 33, and was not placed in the reserved category. It has also been explained that the post reserved for the Backward Class (Muslim) category had to be carried forward, and hence the Petitioner could not be accommodated in that vacancy.

¶75