Can a candidate who let the selection process conclude challenge it only after appointments are issued?
Coram: Justice S.M.Subramaniam · Justice N.Senthilkumar · Justice N. Senthilkumar
Constitution of India, 1950 — Art.226 — Service Law — Delay and laches — Recruitment selection challenge — Service Law — Selection process — Fence-sitter doctrine — Challenge after appointment barred — Held: A candidate who allows the recruitment selection process to be completed without challenging an alleged illegality must approach the Court immediately upon becoming aware of the defect, and cannot wait until appointments are issued. Fence sitters who participate in selection are not entitled to maintain a writ petition after completion of the process and issuance of appointment orders. (¶7, 8) Constitution of India, 1950 — Art.226 — Writ jurisdiction — Delay and laches amounting to acquiescence — Held further: A writ petition filed nearly two years after the recruitment notification and about a year after appointment of selected candidates, and only after a subsequent Division Bench judgment on a related batch, is barred by delay and laches tantamounting to acquiescence, and the relief of quashing the provisional selection list after appointment orders have been issued is not maintainable. Writ Appeal and connected Writ Petition dismissed. (¶6, 9)
Can a candidate who let the selection process conclude challenge it only after appointments are issued?
No. If there is any illegality in the recruitment notification, an aggrieved person must challenge it before completion of the selection process; if the taint is discovered only after publication of the selected list, the aggrieved person must approach the Court immediately without undue delay, and cannot wait until after appointment orders are issued.
Are fence sitters entitled to maintain a writ petition after completion of the selection process?
No. Fence sitters are not entitled to maintain writ petitions after completion of the process of selection and after issuance of appointment orders; entertaining such petitions would open a Pandora's box, inviting similarly placed unsuccessful candidates to file petitions belatedly based on subsequent orders.
What did the Madras High Court finally decide on the delayed challenge to the selection list?
The Court held that the writ petition, filed about two years after the recruitment notification and one year after appointment of selected candidates, was barred by delay and laches tantamounting to acquiescence, and the prayer to quash the provisional selection list after appointment orders were issued was not maintainable. The Writ Appeal was dismissed, the connected Writ Petition stood dismissed, with no costs, and connected Civil Miscellaneous Petitions were closed.
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(Judgment of the Court was made by S.M.Subramaniam J.) Writ Appeal has been instituted under Clause-15 of the Letters Patent, challenging the order dated 19.04.2023 passed in W.P.No.3626 of 2023.
Facts in brief required for disposal of case are that the Teachers Recruitment Board (TRB) issued a Recruitment Notification No.01/2021 dated 09.09.2021, inviting applications from eligible candidates for direct recruitment to the post of Post Graduate Assistant / Physical Education Directors Grade – I and Computer Instructor Grade – I for the year 2020-2021 only through online mode. The Teachers Recruitment Board further released corrigendum to Notification No.01/2021 dated 09.09.2021 vide Notification No.01A/2021 dated 17.09.2021, 01B/2021, dated 21.10.2021 and also issued Amendment Notification No.01C/2022 dated 03.08.2022 to increase the number of vacancies from 2207 to 3237 and further made an Amendment Notification No.01D/2022 to Notification No.01/2021 & 01C/2022 dated 27.08.2022 whereby the number of vacancies was notified as 3236. The Teachers Recruitment Board released an Amendment to Notification No.01/2021 and 01D/2022 as Notification No.1E/2022 dated 17.09.2022 in which the number of vacancies was changed from 3236 to 3209 (Backlog – 244 and Current Vacancy – 2965) and no vacancies for the subjects Bio-Chemistry and Indian Culture. Page No.2 of 8
It is not in dispute between parties that the process of selection was concluded in all respects and after Certificate Verification, the provisional selection list was published on 10.09.2022, 13.09.2022, 14.09.2022, 17.09.2022 and 30.09.2022. Soon after completion of selection and appointment of selected candidates, a batch of Writ Petitions had been instituted, more particularly with reference to Sections 26 and 27 of The Tamil Nadu Government Servants (Conditions of Service) Act, 2016 in the matter of providing reservation for women candidates. A Division Bench of this Court elaborately considered issues, relating to selection and delivered a judgment on 07.09.2022, disposing of writ petitions in W.P.Nos.6201 of 2013 etc., batch.
Mrs.C.Uma, learned counsel for the appellants would mainly rely on Paragraph Nos.43 and 44 of the said judgment, which reads as under:
“43.The exercise aforesaid would be undertaken in reference to all the selections under challenge and if any of the petitioners find place in the merit based on the said arrangement, then they would be given appointment in service to the post concerned. However, it is with a clarification that the petitioners would be entitled to the appointment only if they fall in the merit after arranging the lists in the manner given above and not otherwise. 44. In those cases where appointments are yet to be made, the arrangement given by us would be applied and if the respondents find it to be offending Section 26 Page No.3 of 8 of the Act of 2016, then the same is declared ultra vires the Constitution, because the Constitution and the judgments of the Apex Court do not provide setting apart of the posts for female candidates to be arranged vertically.”
The argument of learned counsel mainly rests on the ground that spirit of the judgment has not been implemented and therefore, appellants herein filed writ petition in the year 2023, more specifically after delivery of judgment by Division Bench of this Court in a batch of writ petitions on 07.09.2022 in W.P.Nos.6201 of 2013 etc., batch.
Admittedly, writ petition has been instituted by present appellants after a lapse of about two years from the date of notification and one year from the date of appointment of selected candidates, after common order passed in a batch of writ petitions by Division Bench on 07.09.2022. Learned Single Judge considered the issues and given a finding that writ petition was filed with delay and latches, tantamounting to acquiescence on their part. Appellants herein filed a writ petition praying to call for the records of the second respondent relating to the provisional selection list dated 16.09.2022 for the post of Post Graduate Assistant in Tamil pursuant to Advertisement No.01/2021 dated 09.09.2021 and quash the same. Such a relief sought for by appellants in the writ petition after issuance of appointment orders based on the selection list per se is not maintainable. Learned Single Judge also considered the point of delay and laches and found that the relief Page No.4 of 8 as such sought for based on the judgment delivered in the batch of writ petitions is untenable.
This Court is of the considered view that if there is any illegality in the Recruitment Notification, an aggrieved person has to challenge the same before completion of process of selection. If the process of selection is tainted and candidates came to know it after publication of selected list, then such aggrieved persons have to approach the Court immediately without causing any undue delay.
In the present case, appellants have allowed the process of selection to go on and after completion of selection process, appointment of selected candidates and after delivery of judgment by Division Bench of this Court, appellants filed writ petition seeking to quash the provisional selection list dated 16.09.2022. In the event of entertaining such writ petitions, it will result in opening Pandora’s box and many other similarly placed unsuccessful candidates, who participated in the process of selection may also file further writ petitions based on the order passed subsequently after issuance of appointment orders. This exactly is the reason why Courts have time and again reiterated that fence sitters are not entitled to maintain writ petitions after completion of process of selection and in the present case, after issuance of appointment orders in the year 2021/2022. This Court is not inclined to go into other merits, since writ petition is liable to be rejected on the Page No.5 of 8 ground of delay and laches and also on the ground that prayer as such sought for is not maintainable after issuance of appointment orders. Other submission made on behalf of appellants that they are meritorious and entitled for appointment, deserves no further consideration. Pertinently, subsequent Recruitment Notification was also issued for the same posts.
For all these foregoing reasons, the present Writ Appeal is dismissed. Consequently, Writ Petition also stand dismissed. No costs. Connected Civil Miscellaneous Petitions are closed. [S.M.S., J.] [N.S., J.]
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