Can a candidate challenge a selection list after appointment orders under it are already issued?
Coram: Justice S.M.Subramaniam · Justice N.Senthilkumar · Justice N. Senthilkumar
The Tamil Nadu Government Servants (Conditions of Service) Act, 2016 — s.26 — s.27 — Recruitment selection — Delay and laches — Fence-sitter doctrine — The Tamil Nadu Government Servants (Conditions of Service) Act, 2016 — s.26 — Challenge to selection list on reservation grounds — belated writ barred — Held: A candidate who participates in a selection process and allows it to conclude cannot, after issuance of appointment orders, challenge the selection list as illegal on the ground that reservation for women and PSTM candidates was treated as vertical reservation contrary to the notification. (¶6) Delay and laches — writ filed three years after notification and one year after appointments — acquiescence — Held further: A writ petition instituted about three years from the date of notification and one year from the date of appointment of selected candidates, and only after a subsequent Division Bench judgment in an unrelated batch, is barred by delay and laches amounting to acquiescence. (¶6) Recruitment process — timing of challenge — illegality in notification must be raised before completion of selection — Held further: An aggrieved person must challenge an illegality in a recruitment notification before completion of the process of selection, or immediately upon coming to know of it after publication of the selected list, and cannot wait until after appointment orders are issued. (¶7) Fence-sitters — no writ after completion of selection and appointment — Pandora's box — Held further: Fence-sitters who allow the selection process to conclude and appointments to be made are not entitled to maintain a writ petition thereafter, since entertaining such a challenge would open a Pandora's box for other similarly placed unsuccessful candidates; the writ appeal and writ petition are dismissed. (¶8, 9)
Can a candidate challenge a selection list after appointment orders under it are already issued?
No. Such a relief sought after issuance of appointment orders based on the selection list is not maintainable, since the process of selection had already been concluded in all respects and appointments made to the selected candidates.
By when must a candidate challenge an illegality in a recruitment notification?
An aggrieved person must challenge an illegality in the Recruitment Notification before completion of the process of selection, or approach the Court immediately without undue delay upon learning of it after publication of the selected list.
Are fence-sitters who let a selection process conclude entitled to file a writ petition afterwards?
No. Courts have reiterated that fence-sitters are not entitled to maintain writ petitions after completion of the process of selection and after issuance of appointment orders, as entertaining such petitions would open a Pandora's box for other similarly placed unsuccessful candidates.
What did the Madras High Court finally decide on the appellants' challenge to the 97-vacancy selection list?
The Court dismissed the writ appeal and the connected writ petition, holding that the challenge, filed about three years after the notification and one year after appointments, was barred by delay and laches amounting to acquiescence, and was in any case not maintainable after appointment orders were issued.
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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.229 of 2023.
Facts in brief required for disposal of case are that the Teachers Recruitment Board (TRB) issued a Recruitment Notification No.13/2019 dated 27.11.2019, inviting applications from eligible candidates for direct recruitment to the post of Block Educational Officer in Elementary Education for the year 2018-2019 to fill up a total of 97 vacancies. The Teachers Recruitment Board had conducted Computer based examination on 14.02.2020, 15.02.2020 and 16.02.2020 in six sessions and published the results on 27.01.2021 and the revised mark list on 21.12.2021. In the meantime, the Director of Elementary Education, on 09.11.2021, sought to include 23 additional vacancies. Accordingly, the Teachers Recruitment Board issued an Addendum to Notification No.13/2019 on 28.12.2021 regarding the increase of the vacancies from 97 to 120. In the Notification, it was clearly stated that it would Page No.2 of 8 follow G.O.Ms.No.145, Personnel and Administrative Reforms (S) Department, dated 30.09.2010 for PSTM Reservation in that particular recruitment. Based on the same, 20% PSTM Reservation was filled among the 97 vacancies. Since the Director of Elementary Education sought to fill up the additional vacancies after the issuance of the G.O.Ms.No.82, the Board sent a letter to the Government to issue suitable clarification on the above issue as it is the policy matter. Accordingly, the Government in its Letter No.962/TRB/2022 dated 25.07.2022 stated that with regard to filling the additional 23 vacancies, it may not be appropriate to follow two different Government Orders relating to PSTM for the same recruitment as leads to several disputes.
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 04.02.2022 for 97 vacancies only, wherein 96 candidates were provisionally selected. 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. Page No.3 of 8
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 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. Page No.4 of 8
Admittedly, writ petition has been instituted by present appellants after a lapse of about three years from the date of notification, one year from the date of appointment of selected candidates, and 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 declare the selection list dated 04.02.2022 issued by the 3rd respondent comprising of 97 candidates for the post of Block Educational Officers pursuant to Notification No.13/2019 dated 27.11.2019 treating reservation for women and PSTM candidates as vertical reservation as illegal and contrary to clause 3 of the Notification No.13/2019 dated 27.11.2019 and the decision of this Court dated 07.09.2022 passed in W.P.Nos.6201 of 2013 etc., batch and for a consequential direction to redraw the provisional selection list dated 04.02.2022 in accordance with law and issue appointment orders to the appellants as Block Educational Officers coming under the Tamil Nadu Elementary Educational Subordinate Service Rules. 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 as such sought for based on the judgment delivered in the batch of writ petitions is untenable. Page No.5 of 8
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 declare the provisional selection list dated 04.02.2022 as illegal and contrary to Clause 3 of the Notification dated 27.11.2019. 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 2022. This Court is not inclined to go into other merits, since writ petition is liable to be rejected on the 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 Page No.6 of 8 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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