Madras High Court
Robin Castro vs The Government Of Tamil Nadu on 1 December, 2023
W.P.No.17036 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.12.2023
CORAM
THE HONOURABLE MS.JUSTICE R.N.MANJULA
W.P.No.17036 of 2020 and
W.M.P.No.21114 of 2020
Robin Castro ... Petitioner
Vs.
1.The Government of Tamil Nadu,
Rep by its Principal Secretary to Government,
Home Department,
Secretariat, Chennai 9.
2.Tamil Nadu Public Service Commission (TNPSC),
Rep by its Member Secretary,
Park Town, Chennai 3.
3.The Director,
Fire and Rescue Services,
No.17, Rukmani Lakshmipathy Road,
Egmore, Chennai 8. ... Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus, to call for the records
of the second respondent herein culminating in impugned memo
No.7968/OTD-B1/2015 dated 21.11.2020 on the file of the 2nd
respondent herein and quash the same and consequently, direct the
respondents 1 and 2 herein to appoint the petitioner in the post of Deputy
Superintendent of Police reserved for MBC(G) in the vacancy notified by
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W.P.No.17036 of 2020
the 2nd respondent herein vide advertisement No.19 of 2016 dated
09.11.2016.
(Prayer amended vide order dated 01.12.2023,
made in W.M.P.No.33785 of 2023)
For Petitioner : Mr.M.Santhanaraman
For Respondents : Mr.T.Arunkumar, Addl. Govt. Pleader for R1&R3
Mr.Abrar Mohammad Abdullah,
Standing Counsel for R2
ORDER
This Writ Petition has been filed to issue a Writ of Certiorarified
Mandamus, to call for the records of the second respondent herein
culminating in impugned memo No.7968/OTD-B1/2015 dated
21.11.2020 on the file of the 2nd respondent herein and quash the same
and consequently, direct the respondents 1 and 2 herein to appoint the
petitioner in the post of Deputy Superintendent of Police reserved for
MBC(G) in the vacancy notified by the 2nd respondent herein vide
advertisement No.19 of 2016 dated 09.11.2016.
2. Heard Mr.M.Santhanaraman, learned counsel for the petitioner
and Mr.T.Arun Kumar, learned Additional Government Pleader for the
respondents 1 and 3. Mr. Abrar Mohammed Abdullah, learned Standing
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Counsel for R2.
3. Mr.M.Santhanaraman, learned counsel for the Petitioner
submitted that the Petitioner who appeared for combined Civil Services
Group I Examination was selected for the post of District Fire Officer. As
per the communal roster viz., MBC(G), he is fourth in the ranking list.
One R.D.Shalini was also selected in the same examination for the post
of Deputy Superintendent of Police. Subsequently, R.D.Shalini appeared
once again for the Civil Services Group I Examination of the next year
and was selected and appointed as Deputy Collector.
4. According to the Petitioner, R.D.Shalini's vacancy will be
available to him as he is next in the line of seniority and hence, he should
be posted as Deputy Superintendent of Police in the place of R.D.Shalini.
The representation given by the Petitioner was rejected by the second
Respondent by stating that the Deputy Superintendent of Police post
which fell vacant due to R.D.Shalini's resignation has been surrendered
for the next recruitment as per Section 3(u) of the Tamil Nadu
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Government Servants (Conditions of Services) Act, 2016, which
mandates the Public Service Commission to maintain a regular and
reserve list of candidates, who were selected during the selection process.
5.Section 3(u) is extracted as under:
3(u) “reserve list” means a list which is prepared so
as to contain not less than twenty five per cent 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.”
But the reserve list was not drawn as per the mandate under Section 3(u)
of the Tamil Nadu Government Servants (Conditions of Services) Act,
2016. If the vacancy has arisen due to non-joining or joined and left duty,
a suitable candidate would be selected from the ranking list against the
said vacancy through Counselling as per proviso 5 of Section 27(f) of the
Tamil Nadu Government Servants (Conditions of Service) Act, 2016,
after receipt of the proposal from the Government.
6.The points for consideration in this matter could be,
(i). Whether the reserve list should be drawn and get valid till the
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next selection?
(ii). Whether the vacancy arose in view of the resignation of
R.D.Shalini ought to have been surrendered to the relevant recruitment
through which she had been selected as Deputy Superintendent of Police
or to the subsequent recruitment, where she was recruited as Deputy
Collector?
(iii).Whether the reserve list is applicable only against the
vacancies which arose due to the abandonment of the benefit by those
candidates who got selected or whether it is applicable only against those
vacancies which arose due to the candidates who got selected had let
after joining?
7. The above issue has been considered in the case of the
Secretary TNPSC Vs. R.Nagarajan, reported in 2008 (3) LW 222, in
paragraph 11 & 12, it is held that the reserve vacancies were applicable
to those candidates who got selected but left after. The relevant
paragraphs are extracted as below:
“11.Three selected candidates - E.Bakthavatchalam
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[General Turn (General)]; G.M.Vasanthi [General turn
(General)] joined the post, left the services and joined as
Civil Judges. One K.Sathasivam (MBC/DC)[W] had
resigned from service. The main point raised is, in the
resultant vacancies arising out of three candidates joined
and subsequently left/resigned, whether the Writ
Petitioners are to be appointed. Contention of TNPSC is
that Rule 10(a)(i) cannot be operated in cases of
candidates who joined and subsequently left/ resigned.
What is urged is strict interpretation of proviso to rule
10(a)(i); Rule 10(a)(i) which reads as under :-
"Provided further that the reserve list
of successful candidates shall be in force
until the regular list of successful candidates
is drawn up subsequently; and that
candidates shall be allotted from such
reserve list for the vacancies in the place of
those who have not joined duty".
12.Though 10(a)(i) provides for allotment from
reserve list for the vacancy in the place of those who have
not joined duty, it cannot be strictly interpreted so as to
exclude resultant vacancies caused due to candidates
joined and subsequently left/resigned. The very purpose of
Subordinate Service Rules is to sub-serve the interest of
the public and the process of selection. No doubt a
candidate has indefeasible right to be appointed for the
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post, but when the Writ Petitioners have been placed in the
reserve list, it is a fallacy to argue that they cannot be
appointed in the resultant vacancies. We are of the view
that if such interpretation is to be adopted, the expression
"such reserve list will be in force .... until the drawal of
next selected list by the commission", would defeat the
intention of the Legislature. We are of the view that a
meaningful interpretation of rule 10(a)(i) would sub-serve
the interest of the public. In fact, having noticed the
anomaly, the Government has issued amendment to rule 2
of Part I and Rules 10(a)(i)(i) and 22(d) under Part II of
the General Rules for the Tamil Nadu State and
Subordinate Services to the effect that "the reserve list
shall be operated even against the vacancies caused due
to the fact that the candidates have joined duty but left
thereafter while the reserve list is in force". The learned
Counsel for the Commission has submitted that the above
amendment has only prospective effect and it cannot be
applicable to the Writ Petitioners.”
8. The above judgment was followed by the Division Bench of this
Court in the Secretary, TNPSC Vs.The Secretary to government
Department of Personnel & Admn. Reforms & others. in W.A.Nos.1466
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of 2008 & 24 to 27 of 2009. In the said judgment, it is observed as
under:
“12. The cases in hand are governed by the Tamil
Nadu State and Subordinate Service Rules. Rule 15-A
defines 'reserved list' as quoted 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.#
As per proviso to Rule 10 (1) (i), appointment by direct
recruitment can be made of any person whose names have
been sponsored by the TNPSC from its regular or reserved
list of successful candidates.”
9. The same position has been once again confirmed by an another
Division Bench of this Court in J.Arun Prasad Vs. TNPSC, Rep. by its
Secretary reported 2018 SCC OnLine Mad 823.
“11. Both petitioners have undergone the due
process of selection and have been informed of being
placed in the reserve list. Both suffered no
disqualification whatsoever. For both of them to expect
that they would be appointed in proper turn as and when
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vacancies arise is but legitimate expectation. To be so
appointed is their vested right. Whileso, in the humble
opinion of this Bench, it would not be open to the
Committee for Selection and Appointment of District
Judges (Entry Level) and Civil judges Committee of this
Court to disentitle petitioners by informing that vacancy
which arose owing to a candidate stepping out of office
should be pooled in for consideration in the proposed
selection process. To repeat, in publishing the register
number of candidates selected provisionally it has been
informed that the reserve list would be valid till the
drawal of next selection list for the post. A Division Bench
of this Court in, The Secretary, Tamilnadu Public Service
Commission vs. R.Nagappan & Others (2008-3-LW-222)
held :
“12. Though 10(a)(i) provides for
allotment from reserve list for the vacancy
in the place of those who have not joined
duty, it cannot be strictly interpreted so as
to exclude resultant vacancies caused due
to candidates joined and subsequently
left/resigned. The very purpose of
Subordinate Service Rules is to sub-serve
the interest of the public and the process of
selection. No doubt a candidate has
indefeasible right to be appointed for the
post, but when the Writ Petitioners have
been placed in the reserve list, it is a
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fallacy to argue that they cannot be
appointed in the resultant vacancies. We
are of the view that if such interpretation is
to be adopted, the expression "such reserve
list will be in force.... until the drawal of
next selected list by the commission", would
defeat the intention of the Legislature. We
are of the view that a meaningful
interpretation of rule 10(a)(i) would sub-
serve the interest of the public. In fact,
having noticed the anomaly, the
Government has issued amendment to rule
2 of Part I and Rules 10(a)(i)(i) and 22(d)
under Part II of the General Rules for the
Tamil Nadu State and Subordinate Services
to the effect that "the reserve list shall be
operated even against the vacancies caused
due to the fact that the candidates have
joined duty but left thereafter while the
reserve list is in force.....”
Applicable Rule 2(15-A) of the Tamil
Nadu State and Subordinate Service Rules
(corresponding to Sec. 3u of the Tamil
Nadu Government Servants (Conditions of
Service) Act, 2016) read:
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 in
force until the regular list is drawn up
subsequently.”
12. Following the rationale of the judgment of this
Court in The Secretary, Tamilnadu Public Service
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Commission vs. R.Nagappan & Others (2008-3-LW-222),
this Court holds that petitioner in W.P.No.5629 of 2018 is
entitled to appointment against the vacancy that had
arisen on the resignation of Miss sujatha.K and petitioner
in W.P.No.25778 of 2015 would be entitled for
consideration of appointment should vacancy in his
category of eligibility arise before the drawing up of the
subsequent regular list.”
10. Mr.Abrar Mohammed Abdullah, learned standing counsel for
the TNPSC submitted that though the Petitioner stands in the fourth
ranking, prior to him there are two other persons in the same list
(MBC(G)). The Petitioner cannot rightfully claim that he is the next
person, who is eligible to be appointed in the place of R.D.Shalini. The
Petitioner had joined as District Fire Officer and hence he will not come
under the reserve list.
11. However, the learned counsel for the petitioner submitted that
two other persons by name Vinoth and Anusuya have filed an affidavit by
stating that they are not interested to get appointed as Deputy
Superintendent of Police. In that case, the petitioner will be the next in the
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list and he would get the chance of getting appointed to the post of
Deputy Superintendent of Police.
12. The vacancy has arisen in view of the resignation made by one
R.D.Shalini, who has got selected as Deputy Collector vide the
recruitment of the year 2016-19 and she joined in the said post on
03.08.2020.
13. It is submitted by the learned Standing Counsel for the second
respondent that whenever a vacancy arises due to the person who had
been selected, did not join or joined duty and thereafter left, a suitable
candidate from the ranking list against the said vacancy as per proviso 5
of Section 27(f) of the Tamil Nadu Government Servants (Conditions and
Service) Act, 2016, would be selected, after receiving the proposal from
the Government in that regard. It is submitted that so long as, the
Government send the proposal to the second respondent, it cannot be
claimed that the vacancy arose against the resignation of R.D.Shalini was
also included in the subsequent notification for recruitment of the year
2016-19. It is obviously because the second respondent himself can know
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about the vacancy only when the Government notifies and sends its
recommendation.
14. The failure on the part of the second respondent to prepare
reserve list cannot affect the interest of those persons who have the
likelihood of getting appointed to the posts arise as against the
consequential vacancies. However, it is upto the second respondent to
ratify his own delay in preparing the waiting list and act accordingly once
the recommendation is obtained from the first respondent. Since the first
respondent cannot have any technical difficulties in updating the
vacancies that has arisen due to a candidate left after joining, the first
respondent shall send an appropriate proposal along with the
recommendation to fill up the vacancy arose in the place of R.D.Shalini
from the waiting list. As stated already, the petitioner stands next in the
queue, as the other two persons stood ahead of him did not opt to the post
of Deputy Superintendent of Police.
15. Since the vacancy has arisen as early as on 03.08.2020 and the
proposal has not yet been sent so far to the second respondent that it is
appropriate to direct the first respondent to take immediate steps to send
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the proposal along with the recommendation to the second respondent
and in turn to direct the second respondent to consider and appoint the
petitioner to the above post.
16. In the result, this Writ Petition is allowed and the impugned
order in No.7968/OTD-B1/2015 dated 21.11.2020 on the file of the 2nd
respondent is set aside and the first respondent is directed to take
immediate steps to send the proposal in respect of the vacancy arose to
the post of Deputy Superintendent of Police due to leaving of R.D.Shalini
along with the recommendation to the second respondent to appoint the
petitioner in the said vacancy, within a period of two weeks from the date
of receipt of a copy of this order and on receipt of the same, the second
respondent shall consider and issue orders to appoint the petitioner to the
post of Deputy Superintendent of Police within a period of four weeks on
the date of receipt of the proposal along with the recommendation. No
costs. Consequently, connected miscellaneous petition is closed.
01.12.2023
Index : Yes
Internet : Yes/No
gsk
https://www.mhc.tn.gov.in/judis
To
1.The Principal Secretary to Government,
Home Department,
Secretariat, Chennai 9.
2.The Member Secretary,
Tamil Nadu Public Service Commission (TNPSC),
Park Town, Chennai 3.
3.The Director,
Fire and Rescue Services,
No.17, Rukmani Lakshmipathy Road,
Egmore, Chennai 8.
https://www.mhc.tn.gov.in/judis
R.N.MANJULA, J.
gsk
W.P.No.17036 of 2020 and
01.12.2023
https://www.mhc.tn.gov.in/judis
