Madras High Court

P. Pandeeswari vs The Principal Secretary on 4 August, 2022

                                                                        W.P.Nos. 19815 & 19816 of 2022


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    Dated: 04.08.2022

                                                        CORAM:

                             THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR

                                           W.P.Nos. 19815 & 19816 of 2022


                    1. P. Pandeeswari
                                                                    ... Petitioner
                                                                    in W.P.No. 19815 of 2022

                    2. Josephine Sabitha. S
                                                                    ... Petitioner
                                                                    in W.P.No. 19816 of 2022
                                                       Vs.
                    1. The Principal Secretary,
                       Government of Tamil Nadu,
                       Health and Family Welfare Department,
                       Fort St. George,
                       Chennai.

                    2. The Director of Medical and Rural Health Services,
                       Chennai – 600 006.
                                                                ... Respondents

Prayer in both WPs: Writ petition filed under Article 226 of the Constitution of India seeking to issue a Writ of Mandamus, directing the respondents to consider and pass orders on the petitioner's application dated 10.04.2022 seeking to appoint to the post of staff nurse in a government medical institution on the basis of certificate verification proceedings of second respondent dated 18.02.2011 in Ref No.11190/N1/2/2011.

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

W.P.Nos. 19815 & 19816 of 2022

For Petitioners : Mr. J. Pachiyappan For Respondents : Mr. T. Arun Kumar Additional Government Pleader

COMMON ORDER

These writ petitions have been filed by the petitioners praying to

issue a Writ of Mandamus directing the respondents to consider and pass

orders on the petitioners' applications dated 10.04.2022 seeking to appoint

the petitioners to the post of staff nurse in a Government Medical

Institution on the basis of Certificate Verification proceedings of 2nd

respondent, dated 18.02.2011 in Ref.No.11190/N1/2/2011.

2. The brief facts of the case:

The petitioners are Government trained nurses having completed 3

year course in a Government Institution between 2007 – 2010. Further, it

was the policy of the Government of Tamil Nadu to recruit nursing staff

for medical services only from Government trained nurses and those

completed the nursing course from Government Schools/Colleges would

be selected on the basis of seniority and thereby, the petitioners were

selected for appointment as a nurse in the Government Institution and on

23.02.2011, the 2nd respondent has called the petitioner for certificate https://www.mhc.tn.gov.in/judis

W.P.Nos. 19815 & 19816 of 2022

verification. It was informed that those who had their certificates verified

were selected and advised to await for posting orders. In the meantime,

the Government changed its policy and constituted the Medical Services

Recruitment Board in the year 2012, which mandated to conduct

examination for qualified nurses from both Government and private

institutions. The selection was done on the basis of marks secured in the

examination and due to the change of policy by the Government, those

who had already been selected as early as in the year 2011 and who had

undergone the process of certificate verification, were denied their

legitimate rights to be appointed as nurses in a Government

hospitals/institutions. Therefore, the petitioners gave representation to the

respondents requesting to consider their request by appointing them to the

post of staff nurse in the Government hospitals/institutions. The

respondents had received the said representation but they have not

responded.

3. The writ petitioners appeared for recruitment to the post of staff

nurse based on the notification issued by the respondents and they were

selected for appointment under the Government Medical Institution and

called for certificate verification on 23.02.2011. According to the https://www.mhc.tn.gov.in/judis

W.P.Nos. 19815 & 19816 of 2022

petitioners, in the meantime the Government changed its policy and

constituted a Medical Services Recruitment Board in the year 2012, which

mandated to conduct examination for qualified nurses from both

Government and private institutions and due to the change of policy by

the Government, those nurse who had been selected as yearly as in the

year 2011 and who had undergone the process of said certificate

verification were denied our legitimate rights to be appointed as nurse in a

Government institutions.

4. According to the petitioners, at the stage of issue of appointment

order the respondents have stated the reason that due to change of policy,

they are not entitled to be considered for the selection and therefore, they

made representation on 10.04.2022, to consider and pass appropriate

orders and after considering the representation to give posting to the

petitioners as staff nurse in the Government Institution.

5. The learned Additional Government Pleader appearing for the

respondents has objected the said contention of the petitioners on the

ground that the petitioners have no legal right to seek for appointment

order, since the Government has changed the policy in the year 2012 and https://www.mhc.tn.gov.in/judis

W.P.Nos. 19815 & 19816 of 2022

further the petitioners have approached this Court and filed this writ

petitions after a lapse of 11 years, and therefore the writ petitions are not

maintainable.

6. The petitioners were selected for appointment as a staff nurse in

the Government Institution during 2010 and subsequently, no posting

orders were issued by the respondents due to the change of policy.

Therefore, the fact is clear that though the petitioners have been selected,

appointment orders were not issued for the said post and as per the

decision of this Court, they seek for legitimate expectation for

appointment and give the postings. Apart from that, the petitioners are

seeking relief before this Court to consider the request for issuing the

appointment order, which they were selected in the year 2011, after a

period of 11 years, the writ petitioners have approached the Court for the

aforesaid prayer.

7. It is relevant to rely on the following decisions of the Hon'ble

Supreme Court as well as this Court. In T.S.Anbarasu v. The State of

Tamil Nadu represented by its Secretary to Government School reported

in (2015) 8 MLJ 385, the Hon'ble Division Bench of this Court has https://www.mhc.tn.gov.in/judis

W.P.Nos. 19815 & 19816 of 2022

observed as under:

“(xvii) Further, the Hon'ble Supreme Court in K.Jayamohan vs. State of Kerala, reported in (1997) 5 SCC 170, held that it is settled legal position that merely because a candidate is selected and kept in the waiting list, he does not acquire any absolute right to appointment and it is open to the Government to make the appointment or not. It was further held that even if there is any vacancy, it is not incumbent upon the Government to fill up the same, but the Appointing Authority must give reasonable explanation for non-appointment. Further, the Hon'ble Supreme Court in All India SC& ST Employees' Assn., vs. A.Arthur Jeen, reported in (2001) 6 SCC 380, held that merely because the names of the candidates were included in the panel indicating their provisional selection, they did not acquire any indefeasible right for appointment even against the existing vacancies and the State is under no legal duty to fill up all or any of the vacancies as laid down by the Constitution Bench of the Hon'ble Supreme Court after referring to earlier cases in Shankarsan Dash vs. Union of India, reported in (1991) 3 SCC 47. Thus, the rules of the selection have not been changed in the midst of the selection process nor there is any arbitrariness in denying employment to the petitioners.”

8. In State of Orissa v. Rajkishore Nanda [(2010) 6 SCC 777], the

Hon'ble Supreme Court had held as under: (SCC p.783, paras 14 & 16) :

“14.A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested

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W.P.Nos. 19815 & 19816 of 2022

right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate.

16.A select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required.”

9. Again in Manoj Manu v. Union of India [(2013) 12 SCC 171] ,

it was held that merely because the name of a candidate finds place in the

select list, it would not give the candidate an indefeasible right to get an

appointment as well. It is always open to the Government not to fill up the

vacancies, however such decision should not be arbitrary or unreasonable.

Once the decision is found to be based on some valid reason, the Court

would not issue any mandamus to the Government to fill up the vacancies.

10. In Kulwinder Pal Singh and Another v. State of Punjab and

Others reported in (2016) 6 SCC 532, the Hon'ble Supreme Court, in

paragraph No.10 had held as follows:

“10.It is fairly well settled that merely because the name of a candidate finds place in the select list, it would not give him indefeasible right to get an appointment as well. The name of a candidate may appear in the merit list but he has no indefeasible right to an appointment (vide Food Corporation of India v. Bhanu Lodh, All India SC & ST Employees

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W.P.Nos. 19815 & 19816 of 2022

Assn., v.A.Arthur Jeen and UPSC v.Gaurav Dwivedi.)

11. The Hon'ble Division Bench of this Court, in the case of

S.Vaidhyanathan Vs.Government of Tamil Nadu reported in 2018 SCC

OnLine, in para 14, it is held as under :

“14. There is an inordinate delay and laches on the part of the appellant. What is latches is as follows:

“Laches or reasonable time are not defined under any statute or Rules. “Latches” or “Lashes” is an old french word for slackness or negligence or not doing. In general sense, it means neglect to do what in the law should have been done for an unreasonable or unexplained length of time. What could be the latches in one case might not constitute in another. The latches to non-suit, an aggrieved person from challenging the acquisition proceedings should be inferred from the conduct of the land owner or an interested person and that there should be a passive inaction for a reasonable length of time. What is reasonable time has not been explained in any of the enactment. Reasonable time depends upon the facts and circumstances of each case.” ...... In para 16 of the Judgment cited supra, it is held as under;

16. Delay defeats discretion and loss of limitation destroys the remedy itself. Delay amounting to laches results in benefit of discretionary power being denied on principles of equity. Loss of limitation resulting into depriving of the remedy, is a principle based on public policy and utility and not equity alone...............”

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12. In Karnataka Power Corpn. Ltd. v. K.Thangappan reported in

(2006) 4 SCC 322, the Hon'ble Supreme Court, at Paragraph 6, held as

follows:

“6. Delay or latches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party'.....

16. There is another aspect of the matter which cannot be lost sight of. The respondents herein filed a writ petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a long time, therefore, the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the court after a long time Delay and laches are relevant factors for exercise of equitable jurisdiction.”

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W.P.Nos. 19815 & 19816 of 2022

13. In Chennai Metropolitan Water Supply and Sewerage Board

v. T.T.Murali Babu reported in (2014) 4 SCC 108, at Paragraph 16, the

Hon'ble Supreme Court held as follows:

“16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the Court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant - a litigant who has forgotten the basic norms, namely, “procrastination is the greatest thief of time” and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.”

14. Keeping in mind the ratio laid down in the above cited

decisions, and considering the facts and circumstances of the case, the

writ petitions are liable to be dismissed on the ground of delay and laches.