Madras High Court

G.Rajapathi vs The Secretary To Government on 1 February, 2024

Author: G.K.Ilanthiraiyan

Bench: G.K.Ilanthiraiyan

                                                                           W.P.No.22371 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED : 01.02.2024

                                                     CORAM:

                             THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                             W.P.No.22371 of 2022

                G.Rajapathi                                             ...Petitioner

                                                      -Vs-
                1. The Secretary to Government,
                   Home (Police II) Department,
                   Fort St George, Chennai-9.

                2. The Director General of Police,
                   Dr Radhkrishnan Salai,
                   Mylapore, Chennai-4.

                3. The Member Secretary,
                   T.N.Uniform Services Recruitment Board,
                   Old Commissioner's Office Building,
                   Pantheon Road, Egmore,
                   Chennai-8.                                         ... Respondents
                Prayer : Writ Petition filed under Article 226 of Constitution of India praying
                for the issuance of a Writ of Mandamus, directing the respondents to pass
                orders on the representation made by the petitioner dated 01.03.2020 for
                appointment as Sub - Inspector of Police, Category - I for the year 1998 -99
                based on the order of the Hon'ble Supreme Court in Civil Appeal No. 7667 /
                2014 in SLP (C) No. 21828 / 2006 etc 7.08.2014 within a reasonable time.




https://www.mhc.tn.gov.in/judis
                Page 1 of 12
                                                                                  W.P.No.22371 of 2022

                                  For Petitioner     : Mr.M.Muthappan

                                  For R1 and R2      : Mr.S.Rajesh
                                                       Government Advocate

                                  For R3             : Mr.P.Kumaresan
                                                       Additional Advocate General
                                                       assisted by
                                                       Mrs.D.Sowmi Dattan
                                                       ORDER

This writ petition has been filed for direction directing the respondents to

pass orders on the representation made by the petitioner dated 01.03.2020 for

appointment as Sub - Inspector of Police, Category - I for the year 1998 -99

based on the order of the Hon'ble Supreme Court in Civil Appeal No.7667 /

2014 in SLP (C) No. 21828 / 2006 etc., 07.08.2014 within a reasonable time.

2. Heard the learned counsel on either side and perused the materials

available on record.

3. The petitioner had entered in the service as a directly recruited Grade-II

Police Constable. After completion of four years, he was transferred to District

Armed Reserve, Perambalur District. On bifurcation of Perambalur District and

Ariyalur District, the petitioner opted to serve in Ariyalur District wherein he

was posted to serve in the Armed Reserve initially and thereafter, he was posted

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

to serve in the Law and Order establishment. Thereafter, the petitioner was

upgraded as Grade-I Police Constable in the year 2009 and subsequently, he

was promoted to the post of Head Constable in the year 2015. In the year 1997-

1998, the third respondent invited applications from eligible candidates for

selection to the post of Sub-Inspector, by direct recruitment from among the

public as well as service candidates under 20% quota. The petitioner applied for

the said post and scored 22.12 marks in the written examination. In the physical

efficiency test, he scored good marks and he was selected for viva voce. Totally,

he had secured 71.62 marks. However, cut off marks prescribed for BC was

over and above 71.62 marks and as such, he was not selected to the post of

Sub-Inspector of Police from Trichy Zone. In the year 1997-1998, zonal wise

selection was conducted by the respondents. Therefore, the persons who have

secured over and above the lowest cut off when compared to other zones could

not be appointed to service, where highest cut off marks have been prescribed.

4. A batch of writ petitions were filed and finally, the Hon'ble Supreme

Court of India held that there cannot be any period of limitation for approaching

the Court, when admittedly those individuals have secured over and above the

lowest cut off marks prescribed for each category in any one of the zone.

Therefore, the persons numbering about 11 were appointed to service as Sub https://www.mhc.tn.gov.in/judis

Inspector of Police. Other writ petitions which were pending were also ordered,

on the strength of the Hon'ble Supreme Court of India. Accordingly, the

petitioners therein were granted relief and promoted to the post of Sub Inspector

of Police. However, the petitioner did not approach the Court and submitted

representation seeking to be appointed as Sub-Inspector of Police, in view of the

order passed by the Hon'ble Supreme Court of India.

5. The learned Additional Advocate General appearing for the third

respondent submitted that the request of the similarly placed persons were

rejected and the same were also confirmed by the Hon'ble Division Bench of this

Court in W.A.Nos.1124 to 1132 of 2016 dated 19.04.2023, wherein it was held

as follows:-

“11. At this juncture, it is relevant to extract the relevant portion of the order passed by the Hon'ble Supreme Court dated 07.08.2014 in C.A.No.7668/2014, which is extracted as under:-

It is not as if there were valid grounds for not making these appointments. Illustratively, if all the advertised posts had been filled up, perhaps, the State Government could have a legitimate reason for denying the claim of these appellants for appointment, on account of delay. From the sequence of facts brought to our notice, it emerges, that a large number of vacancies had remained unfilled, after appointments were originally made. Even after the State Government implemented the orders of the Administrative Tribunal by appointing only those who had availed of judicial redress, a number of vacancies still remained unfilled. Therefore, not a single person appointed by the State Government would have to be dislodged, to extend the benefit of https://www.mhc.tn.gov.in/judis

the judgement to these 11 appellants. All of them could have been accommodated, against unfilled vacancies, of the same recruitment process. In our considered view, delay alone could not be a valid justification to deprive these meritorious candidates, the right to be appointed. We therefore, hereby, direct the State Government to appoint all the aforesaid 11 appellants as Sub Inspectors.

12. In the above order, the Hon'ble Supreme Court has made observation in respect of vacancies that even after the State Government implemented the orders of the Administrative Tribunal, by appointing only those who had availed of judicial redress, a number of vacancies still remained unfilled. Further, after recording the statement of the learned counsel of appellants therein, directed the State Government to appoint the 11 candidates/ appellants therein as Sub Inspectors and extended the benefit of seniority at the bottom of the regularly appointed Sub Inspectors, as on that date.

13. It is to be noted that the Hon'ble Supreme Court has passed the above order only in respect of 11 candidates/ appellants therein, arising out of SLP in the year 2006. But, by citing the above order of Hon'ble Supreme Court, the writ petitioners/appellants cannot seek appointment in the year 2014, as a matter of right, as per their whims and fancies. Moreover, if any such appointment is allowed to be made further, after such an inordinate delay, it will open the flood gates of litigations, which will affect the entire selection process already reached finality.

14. Further, the writ petitioners not only filed the writ petitions with an inordinate delay, but also watched the court proceedings of the similarly placed persons and woke up after long delay, only because of the similarly placed persons succeeded in their efforts. In such circumstances, it is to be mentioned that a Division Bench of this Court, in its common judgment dated 23.12.2010 in W.No.1719/2010 batch cases, has discussed the matter elaborately and allowed the writ appeals on the ground of delay and laches and also, since the writ petitioners therein are treated as fence sitters, they are not entitled to the relief. The relevant paragraphs are reiterated as follows:

29. As found in the impugned order that letter dated https://www.mhc.tn.gov.in/judis

30.1.2009 itself would show that the second respondent did not verify the answers even after the examination. This court found that there was bonafide mistake committed in setting key answers, and the verification was not done only to prevent leakage of question papers. If any direction is to be issued, it would certainly un-settle the selection process which was already completed, and it would give room for many claims from various parties making the issue very complicated. At this point of time, if the directions of the learned single judge are given effect, more candidates would possibly be eligible for appointment, and it would compel the government to make appointments more than advertised and it would be against settled position of law. In Union of India vs. Easwersingh Khatri reported in 1992 Suppl. 3 SCC 84.

Gujarat Deputy Executive Engineer Association vs. State of Gujarat reported in 1994 Supp. SCC 591, Kamaleshkumar Sharma vs. Yogeshkumar Gupta reported in AIR 1998 SCC 1021 and State of U.P. And others vs. Rajkumar Sharma and others reported in 2006 (3) SCC 330 it has been held that filling up vacancies over and above the number of vacancies advertised could be violative of fundamental rights guaranteed under Article 14 and 16 of Constitution of India. Therefore the directions (i) to (v) given para 24 of the impugned order are set aside.

"FENCE SITTERS"

30) No doubt the petitioners had legitimate expectation about the selection and they are also not responsible for the problem. However, the petitioner approached the Court only in 2009 for the first time. The Hon'ble Supreme Court in Shiba Shankar Mohapatra and Ors vs. State of Orissa and Ors. Reported in AIR 2010 SC 706 held as follows:

"28 It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the Court is guilty of delay and the latches. The Court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third https://www.mhc.tn.gov.in/judis

parties crystallises in the interregnum.(vide Aflatoon and Ors. v. Lt.Governor, Delhi and Ors. MANU/SC/0437/1974:

AIR 1974 SC 2077; State of Mysore v. V.K.Kangan and Ors. MANU/SC/0429/1975: AIR 197 SC 2190; Municipal Council, Ahmednagar and Anr. v. Shah Hyder Beig and Ors. MANU/SC/0022/2000; AIR 2000 SC 671; Inder Jit Gupta v. Union of India and Ors. MANU/SC/0447/2001; (2001) 6 SCC 637; Shiv Dass v. Union of India and Ors.

MANU/SC/7032/2007; AIR 2007 SC 1330; Regional Manager, A.P.SRTC v. N.Satyanarayana and Ors. MANU/SC/8097/2007; (2008) 1 SCC 210 and City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala and Ors. MANU/SC/8l250/2008; (2009) 1 SCC 168)". (emphasis supplied).

Hence the petitioners who approached the court for the first time are definitely "fence sitters". In view of that the writ petitions filed by those petitioners who approached the court for the first time in 2009 are dismissed on the ground of delay.

15. Further, the Delhi High Court, in a decision in Union Of India And Ors. vs Sandeep Kumar Swaroop And Ors. dated 01.09.2017, has observed as follows.

45. Recently, the Supreme Court in State of Uttar Pradesh and Ors. Vs. Arvind Kumar Srivastava & Ors., (2015) 1 SCC 347 had examined this issue on the question of judgments in service law which lay down a principle and, therefore, are treated as judgments in rem in the second sense. Several decisions on both sides were referred to and the following legal principles were set out:-

"22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under.

22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the https://www.mhc.tn.gov.in/judis

Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.

22.2. However, this principle is subject to well- recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.

22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India [K.C. Sharma v. Union of India, (1997) 6 SCC 721 : 1998 SCC (L&S) 226] ). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from https://www.mhc.tn.gov.in/judis

either laches and delays or acquiescence."

A careful reading of the aforesaid principles reveals that the principle of in rem in the second sense is not absolute. It is preferable to follow the said principle so that there is no discrimination or violation of Article 14 in service matters for all similarly situated persons should be treated alike and not differently. However, delay and laches as well as acquiescence can be a ground to deny benefit to fence sitters. Those who do not approach the Court in a timely and prompt manner can be denied "equal treatment". Thus, it will be right to hold that doctrine of in rem in the second sense is not unconditional or unimpeachable. However, this exception would not apply where the earlier judgment pronounced by the Court is with the intent to give benefit to all similarly situated persons, whether they had approached the Court or not. Benefit should not be extended when the said intent is not there and the judgment expressly or impliedly states that the benefit of the judgment would be extended to those, who had sought to enforce their rights and their petitions were not stale on account of delay and laches or acquiescence.

Therefore, in the light of ratio laid down in the decision as stated supra, this Court is of the view that the writ petitioners have not approached the Court in time and also they are fence sitters.

16. Even though the learned Senior Counsel has made an attempt to satisfy this Court that the appellants are entitled for appointment to the post of Sub Inspector of Police, inview of the fact that similarly placed persons have got the same benefit, challenging the zonal wise selection, he fairly admitted that the appellants have approached the Court belatedly. According to the appellants, the said delay is only due to inadvertence. But, in our view, the appellants have not approached the Court, immediately after publishing the result during the year 1998 or even after getting information under RTI Act during the year 2008 and they watched the entire proceedings before the Tribunal, High Court and also before the Supreme Court as fence sitters and after coming to know about the results of the litigations in their favour, they approached the Court after lapse of several years. Therefore, we are of the view that the Writ Court has rightly observed that the writ petitioners/ appellants herein are fence sitters and their https://www.mhc.tn.gov.in/judis

claims are hit by delay and laches and has rightly dismissed the writ petitions. Hence, this Court is unable to accept the contentions of the appellants and consequently, we confirm the order passed by the learned Single Judge.

17. Accordingly, the Writ Appeal Nos.1124 to 1132 of 2016 are dismissed. No costs.”

6. Thus, it is clear that the petitioner is a fence sitter. He approached this

Court only in the year 2022. The petitioner failed to approach this Court

immediately after publishing the result during the year 1998. Therefore, the

entire proceedings before the Hon'ble Supreme Court of India as fence sitters

and after coming to know about the results of the litigations in their favour, they

approached this Court after lapse of several years.

7. Therefore, the direction sought for in this writ petition cannot be

considered and this writ petition is devoid of merits and is liable to be

dismissed. Accordingly, this writ petition is dismissed. There shall be no order

as to costs.

01.02.2024 Internet: Yes Index : Yes/No Speaking/Non Speaking order mn