The petitioner is an association of Tamil Nadu Engineering Diploma Holders which consists of Mechanical Engineering and Automobile Engineering. A notification was issued by the second respondent on 23.05.2007 in advertisement No.107 calling for the applications for the post of Motor Vehicles Inspector, Grade-II, totaling 49. In pursuant to the notification, the second respondent has issued instructions to the candidates who are eligible to be appointed as Motor Vehicles Inspector, Grade-II. The vacancies mentioned in the said notification are notified subject to the rules of reservation.
2.The instructions given by the second respondent in Paragraph 22(b) clearly stipulate the procedure for selection. Accordingly, there shall be a main written examination and the selected candidates will under go an oral test. By considering the marks obtained in both written examination as well as the oral test, selection would be made. If the number of vacancies notified/reserved to be filled up for any one or more of the reservation groups such as Scheduled Castes, Scheduled Tribes etc., is 5 and above, the number of candidates to be admitted to the oral test shall be two times the number of vacancies for which recruitment has to be made. Similarly, if the number of vacancies in any one or more of the remaining reservation groups are 4 and below, then the number of candidates to be admitted to the oral test shall be three times the number of vacancies for which the recruitment has to be made. Therefore, as per the said instructions when in a reserved category, the vacancies are 5 and more, then two times more than the vacancies would be called for from those who have written the main examination and where the vacancies are 4 and less in the reserved categories, then the same would be three times more. Accordingly, those candidates alone would be called for the oral interview. For example, if there is one post available in a reserved category, then three persons from the said category who have written the examination and who have scored the first three higher marks would be called. Similarly. if there are 5 vacancies in a reserved category, 10 candidates would be called. Therefore, the ratio of 1:2 when vacancies are more and 1:3 when vacancies are less in a reserved category has been formulated.
3.In this connection, instruction 22(b) is extracted hereunder:
"22(b). Posts for which selection is made on the basis of Written Examination and Oral Test.
Where the selection is made on the basis of both, Main Written Examination/Written Examination and Oral Test, the Main Written Examination/Written Examination will precede the Oral Test. If the number of vacancies notified/reserved to be filled up for any one or more of the reservation groups(viz. Scheduled Castes, Scheduled Tribes, Most Backward Classes/Denotified Communities, Backward Classes or General Turn) is five and above, the number of candidates to be admitted to the Oral Test shall be two times the number of vacancies for which recruitment has to be made against those reservation groups based on the marks obtained by the candidates at the Main Written Examination or Written Examination, as the case may be. Similarly, if the number of vacancies in any one or more of the remaining reservation groups for the same recruitment is four and below, the number of candidates to be admitted to the Oral Test from those particular reservation groups(s) shall be three times the number of vacancies for which recruitment has to be made against those reservation group(s). In respect of the posts, the total cadre strength of which is one only and for which the rule of reservation of appointments does not apply, the number of candidates to be admitted to the Oral Test on the basis of the marks obtained at the Written Examination will be three. The final selection will be made on the basis of the total marks obtained by the candidates at the Main Written Examination or Written Examination, as the case may be, and Oral Test taken together subject to the rule of reservation of appointments wherever it applies. Appearance in all the papers at the Main Written Examination/Written Examination and for Oral Test is compulsory. The candidates who have not appeared for any of the subjects in the Main Written Examination/Written Examination will not be considered for selection even if they secure the minimum qualifying marks for selection.
The marks obtained by the candidates appearing for the Oral Test, both in the Written Examination as well as in the Oral Test will be placed in the Notice Board in the Office of the Tamil Nadu Public Service Commission in the evening either on the last day fixed for Oral Test or one the succeeding working day. The same will also be made available on the Internet in the Commission's Website www.tnpsc.org."
4.In pursuant to the said examination, the candidates have been selected and they have been asked to attend the oral test by following the above said ratio. At that point of time, the writ petition has been filed by the petitioner herein seeking the relief of writ of mandamus directing the second respondent to follow the ratio of 1:3 for the 49 posts notified pursuant to the notification dated 23.05.2007.
5.Shri.K.Rajkumar, learned counsel for the petitioner submitted that over the years what is followed is only 1:3 ratio for all categories. By restricting the ratio to 1:2 more members of the petitioner's association have lost their chances. Therefore, the method adopted by the second respondent is illegal. It is further submitted that for the post of District Educational Officer, the second respondent has called for 57 candidates for 19 vacancies in the ratio of 1:3.
6.Shri.K.Rajkumar, learned counsel for the petitioner further contended that the Government of Tamil Nadu has issued G.O.Ms.No.18, Labour and Employment Department (N2) dated 25.02.2008 in which, the directions have been issued to fill up the post of Secondary Grade Teachers which is a ratio of 1:5. Even in the previous occasions the respondents have followed only 1:3 ratio. Therefore, the second respondent will have to be directed to call for the interview by fixing the ratio of 1:3 since by following the available 1:2 ratio the members of the petitioner are affected. It is further submitted that the principle of desuetede will have to be applied in the present case and accordingly, a procedure which has been followed over the years even contrary to the rule will have to be continued. The learned counsel further submitted that the respondents cannot follow different yardstick for different categories and hence the said action of the second respondent is violative under
Article 14 of the Constitution of India.
7.In support of his contention that the procedure as contemplated by the second respondent in the instructions shall not be followed in view of the earlier procedure followed over the years, the learned counsel for the petitioner relied upon the judgment reported in 1995 (3) SCC 434 [MUNICIPAL CORPORATION FOR CITY OF PUNE AND ANOTHER vs. BHARAT FORGE CO. LTD. AND OTHERS] and submitted that the principle of desuetede will have to be followed. In support of his contention that the action of the second respondent would amount to violation of
Article 14 of the Constitution of India inasmuch as similarly placed persons are treated unequally, the learned counsel relied upon the judgments reported in AIR 1971 SC 2369 [UNION OF INDIA vs. MOOL CHAND DASUMAL PARDASANI], AIR 1973 SC 689 [NAGPUR IMPROVEMENT TRUST AND ANOTHER vs. VITHAL RAO AND OTHERS], AIR 1993 SC 2467 [CENTRAL RAILWAY AUDIT STAFF ASSOCIATION AND OTHERS vs. DIRECTOR OF AUDIT, CENTRAL RAILWAY AND OTHERS], AIR 1965 SC 1017 [P.VAJRAVELU MUDALIAR, MOST REV.DR.L.MATHIAS vs. THE SPECIAL DEPUTY COLLECTOR FOR LAND ACQUISITION, WEST MADRAS AND ANOTHER], (2006) 2 MLJ 572 [N.S.BALASUBRAMANIAN AND OTHERS vs. FOOD CORPORATION OF INDIA, NEW DELHI]. Further, in support of his contention that even a policy decision can be challenged in the touchtone of
Article 14 of the Constitution of India, the learned counsel relied upon the judgments reported in 1999 (3) MLJ 347 [S.PAPPA AND OTHERS vs. GOVERNMENT OF TAMIL NADU AND OTHERS] and (2004) 2 MLJ 314 [V.KRISHNAMURTHY, PROPRIETOR, MEENA ADVERTISERS, CHENNAI vs. AIRPORTS AUTHORITY OF INDIA, NEW DELHI]. Hence, Shri.K.Rajkumar, learned counsel for the petitioner contended that the writ petition will have to be allowed, based upon the submissions made by him.
8.Per contra, Shri.G.Masilamani, learned senior counsel appearing for the second respondent submitted that the writ petition is not maintainable in law and facts. The writ petition cannot be maintained by an association since the aggrieved persons are individual members. Moreover, a policy decision of the second respondent cannot be assailed without even challenging the same by way of an appropriate prayer. It is further submitted that the members of the petitioner are estopped from challenging the said condition mentioned in the prospectus since the prospectus and the instructions are having the force of law.
9.Shri.G.Masilamani, learned senior counsel for the second respondent also contended that inasmuch as the procedure having formulated by the second respondent by exercising the power under
Article 320(1) of the Constitution of India, the petitioner cannot challenge the same since the second respondent is well within his right to formulate the procedure. It is further submitted that
Article 14 is positive in nature and the same cannot be used to commit an illegality by the respondents.
10.In support of his contention that the prospectus and the instructions are having the force of law Shri.G.Masilamani has relied upon the judgment reported in 2006 (3) CTC 449 [DR.M.VENNILA vs. TAMIL NADU PUBLIC SERVICE COMMISSION] wherein a Division Bench of the Hon'ble High Court of Madras has taken such a view. Shri.G.Masilamani, learned senior counsel also relied upon the judgment reported in AIR 1987 SC 454 [ASHOK KUMAR YADAV AND OTHERS vs. STATE OF HARYANA AND OTHERS] to submit that the ratio of 1:2 and 1:3 has been evolved based upon the said judgment alone. He further submitted that the ratio followed for the other posts cannot form the basis since it depends upon the number of vacancies available because it is always desirable to have less number of persons selected from the main written examination to be interviewed by the second respondent in order to have proper assessment of the candidates. The said decision being one of policy decision the same cannot be questioned.
11.I have heard Mr.K.Rajkumar, learned counsel for the petitioner, Mrs.Lita Srinivasan, learned Government Advocate for the first respondent and Mr.G.Masilamani, learned senior counsel for the second respondent.
12.As rightly contended by Shri.G.Masilamani, learned senior counsel for the second respondent, the writ petition is misconceived. The petitioner cannot file a writ of mandamus directing the respondents to formulate a particular policy. A formulation of a policy by the respondents is entirely within its own jurisdiction. Hence until and unless, the said policy decision is arbitrary, illegal and irrational the same cannot be challenged. This Hon'ble Court sitting under
Article 226 of the Constitution of India cannot test such a policy decision evolved by the respondents.
13.Further, a writ of mandamus being a discretionary relief cannot be issued at the instance of the petitioner who is an association. It is for the individual members to have recourse to law. Moreover there is no legal right for the petitioner to seek the relief sought for. Nobody has got a vested right to seek an appointment but there can only be a right to consider the individual person for an appointment subject to the rules and regulations. The members of the petitioner admittedly participated in the main written examination. It is not in dispute that instructions No.22(b) stipulates a specific mode by which selection has to be made. The petitioner and his members are aware of the said mode and they cannot presume that the said method will not be adopted by the respondents.
14.The fact that a different procedure is adopted by the Government of Tamil Nadu in following the ratio and by the respondents in other cases cannot be a ground to invoke
Article 14 of the Constitution of India.
Article 14 of the Constitution of India would be made applicable only in a case where the persons, groups or associations are classified into one. In a case where the classification is based upon intelligible differentia having nexus to the object sought to be achieved, the said decision made by an authority cannot be termed as violative of
Article 14 of the Constitution of India. Further, the contention of Shri.K.Rajkumar, learned counsel for the petitioner that over the years the respondents have followed 1:3 ratio inspite of the similar instruction and hence the same procedure has to be followed, also cannot be countenanced. It is a well settled principle of law that
Article 14 of the Constitution of India cannot be pressed into service in a case where illegality has been committed by an authority in one case. Moreover, a writ of mandamus cannot be issued to an authority to act contrary to the rules and procedure established by law. Inasmuch as the notification and the instruction are having the sanction of law and the said procedure having been adopted as a policy by the respondents the same cannot be questioned, more so after the participation by the members of the petitioner. The petitioner also does not have any case on the ground of legitimate expectation based on a fact which is said to have been done contrary to the procedure. Further the relief based on legitimate expectation would not arise against the public interest and public policy.
15.Shri.K.Rajkumar, learned counsel for the petitioner has relied upon the judgment reported in 1995 (3) SCC 434 [MUNICIPAL CORPORATION FOR CITY OF PUNE AND ANOTHER vs. BHARAT FORGE CO. LTD. AND OTHERS]. In the opinion of this Court the said judgment is not applicable to the facts and circumstances of this case. In the said case, in pursuant to the notification dated 12.03.1881 octroi was collected sufficiently for a long period. Thereafter, another notification was issued on 17.06.1918 which has not been implemented. Thereafter, new octroi rules came into force in 1963. Hence, taking into consideration of the above said facts, the Hon'ble Supreme Court has held that by applying the doctrine of desuetude there cannot be any demand based upon the notification dated 17.06.1918. In order to apply the principle of desuetude there must be a contrary practice which must be of some duration and general application. Under the said principle an act of the parliament may lose its force without express repeal. The said judgment cannot be applied to the present case since a reading of the counter affidavit would show that the policy of Ratio evolved in the present case has also been applied by the second respondent to other cases as well.
16.In fact, in support of the Group-I Service Recruitment, however Government recruited candidates have been admitted to the oral test in the ratio of 1:2 only. Therefore, this Court is of the opinion that the learned counsel for the petitioner has relied upon the judgment which is not applicable to the present case on hand. The other judgment relied upon by the learned counsel for the petitioner also do not support the case of the petitioner. In the judgment reported in AIR 1971 SC 2369 [UNION OF INDIA vs. MOOL CHAND DASUMAL PARDASANI] the Hon'ble Supreme Court was dealing with the situation where the amendment of rule increasing the age of superannuation from 55 to 60 years was not followed in the case of the petitioner therein alone as against the other identically placed persons. Therefore, in view of the fact that the petitioner therein and the other persons who have enjoyed the benefit from the same group, the Hon'ble Supreme Court was pleased to hold that the discrimination made against the petitioner therein is in violative of
Article 14 of the Constitution of India. In the judgment reported in AIR 1973 SC 689 [NAGPUR IMPROVEMENT TRUST AND ANOTHER vs. VITHAL RAO AND OTHERS]. The Hon'ble Supreme Court was observed the said judgment in paragraph 23 as follows:
"23.It is now well-settled that the State can make a reasonable classification for the purpose of legislation. It is equally well-settled that the classification in order to be reasonable must satisfy two tests (i) the classification must be founded on intelligible differentia and (ii) the differentia must have a rational relation with the object sought to be achieved by the legislation in question. In this connection it must be borne in mind that the object itself should be lawful. The object itself cannot be discriminatory, for otherwise, for instance, if the object is to discriminate against one section of the minority the discrimination cannot be justified on the ground that there is a reasonable classification because it has rational relation to the object sought to be achieved."
Hence, a reading of the said judgment would show that the said judgment is infact in support of the respondents rather than the petitioner.
17.In the judgment reported in AIR 1993 SC 2467 [CENTRAL RAILWAY AUDIT STAFF ASSOCIATION AND OTHERS vs. DIRECTOR OF AUDIT, CENTRAL RAILWAY AND OTHERS] the Hon'ble Supreme Court has held that when the posts are different, persons working in one post cannot claim the same privileges as given to the other post and the same is not violative of
Article 14 of the Constitution of India. Applying the said principle of the Apex Court, this Hon'ble Court finds that selection process evolved by the second respondent in the present case is being different than the one formulated for the selection of the District Educational Officer is not violative of
Article 14 of the Constitution of India.
18.Similarly, the Apex Court in judgment reported in AIR 1965 SC 1017 [P.VAJRAVELU MUDALIAR, MOST REV.DR.L.MATHIAS vs. THE SPECIAL DEPUTY COLLECTOR FOR LAND ACQUISITION, WEST MADRAS AND ANOTHER] has held that the classification sought to be made between persons whose lands are acquired for other public purposes has no rationale to the object sought to be achieved. There also the Hon'ble Supreme Court was pleased to hold that
Article 14 is violative when similarly placed persons are treated differently. The same has been reiterated by the judgment reported in (2006) 2 MLJ 572 [N.S.BALASUBRAMANIAN AND OTHERS vs. FOOD CORPORATION OF INDIA, NEW DELHI] as well. In the judgment reported in 1999 (3) MLJ 347 [S.PAPPA AND OTHERS vs. GOVERNMENT OF TAMIL NADU AND OTHERS] the Hon'ble High Court has held that even a policy decision can be challenged on the ground of violation of
Article 14 of the Constitution of India. This Court is of the opinion that there is no dispute about the said proportion of law but the question to be decided is as to whether the classification is proper or not. In the judgment reported in (2004) 2 MLJ 314 [V.KRISHNAMURTHY, PROPRIETOR, MEENA ADVERTISERS, CHENNAI vs. AIRPORTS AUTHORITY OF INDIA, NEW DELHI] the learned single Judge of this Hon'ble Court has held that the Court can interfere when the decision making process is vitiated by malafides, unreasonableness or arbitrariness and overwhelming public interest. As held earlier there is no unreasonableness or arbitrariness and overwhelming public interest requiring interference by this Hon'ble Court in the present case. Further, the petitioner has not even made a plea of malafides and therefore, this Hon'ble Court cannot go into the same, more so when a strong proof is required to be proved by a person raising malafides.
19.Shri.G.Masilamani, learned senior counsel for the second respondent submitted that a policy decision has been evolved by the respondents based upon the judgment reported in AIR 1987 SC 454 [ASHOK KUMAR YADAV AND OTHERS vs. STATE OF HARYANA AND OTHERS] wherein the Hon'ble Supreme Court has depricated the practice of following the ratio beyond 1:2 or 1:3. Therefore, in accordance with the said judgment a policy has been evolved and the second respondent being a statutory body is free to evolve its own policy. This Court also feels that the said submission merits acceptance. Further, in the judgment relied upon by the learned senior counsel for the respondents reported in 2006 (3) CTC 449 [DR.M.VENNILA vs. TAMIL NADU PUBLIC SERVICE COMMISSION] the Hon'ble High Court also makes it clear that after participating in the process of selection, the concerned affected persons cannot challenge the terms of the prospectus which contained the instructions. The observation made by the Division Bench in paragraph 24 is extracted herein.
""24. We have already referred to various terms and conditions mentioned in the application form prescribed by Punjab Technical University, Jalandhar, which are similar to Clause 17 of Instruction to Candidates, etc., and Information Brochure issued by the Tamil Nadu Public Service Commission. It has been repeatedly affirmed by almost all the Full Benches of the Punjab and Haryana High Court that the Information Brochure has the force of law and has to be strictly complied with. We are in respectful agreement with the said view."
20.This Court is of the opinion that the said judgment is squarely applicable to the present case on hand and hence, the petitioner cannot seek the relief sought for.
21.The writ petition has been filed by the petitioner who is an association. The writ petitioner by itself is not the affected or the aggrieved party. Therefore, this Court is of the opinion that the association not being an aggrieved party cannot file a writ petition on behalf of its members. It is for the individual person concerned to file a writ petition ventilating his grievances. In this connection, it is useful to refer the judgment of the Hon'ble Division Bench reported in (2005) 3 MLJ 252 [TAMILAGA ASIRIYAR KOOTTANI vs. THE GOVERNMENT OF TAMIL NADU] the Hon'ble Division Bench has observed as follows:
"5.A Division Bench of this Court in Formation of Indian Network Marketing Association, Chennai vs. M/s.Apple FMCG Marketing Private Limited, Chennai and others, (Writ Appeal No.688 of 2005 dated 7.4.2005) reported in (2005) 2 M.L.J. 526, has held that such writ appeals are liable to be dismissed on the ground of lack of locus standi (vide paras.6 to 13). In para.6 of the said judgment it was observed:-
"It is well settled that ordinarily a writ petition or writ appeal can only be filed by someone who is personally aggrieved."
6.In Indian Sugar Mills Association vs. Secretary to Government, A.I.R. 1951 All. 1 a Full Bench of the Allahabad High Court held (vide paras.10 and 11):-
"The further argument is that any person, whether his interests are directly affected or not, can file an application challenging any Act of the Legislature or the order of the Government on the ground that it is ultra vires. In this connection we cannot be better than quote the decision of the learned Judges of the Supreme Court of the United States in Commonwealth of Massachusetts vs. Andrew W.Mellon, 262 U.S.447: 67 Lawyers Edn. 1078, Sutherland, J. who delivered the opinion of the Court quoted with approval the remarks of Thomson, J. with whom Story, J. concurred, which were as follows:
"It is only where the rights of persons or property are involved, and when such rights can be presented under some judicial form of proceedings, that Courts of justice can interpose relief."
Dealing with the question whether a single tax-payer can challenge the enforcement of a Federal Appropriation Act on the ground that it was invalid and would increase the burden of his taxes, the learned Judge observed:
"His interest in the moneys of the treasury-partly realised from taxation and partly from other sources-is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation of any payment out of the funds so remote, fluctuating, and uncertain that no basis is afforded for an appeal to the preventive powers of a Court of equity....If one tax-payer may champion and litigate such a cause, then every other tax-payer may do the same, not only in respect to the statute hereunder review, but also in respect of every other appropriation Act and Statute whose administration requires the outlay of public money, and whose validity may be questioned. The bare suggestion of such a result, with its attendant inconveniences, goes far to sustain the conclusion which we have reached, that a suit of this character cannot be maintained."
Those remarks are with reference to a suit. They are much more applicable to proceedings under
Art.226 which are of a summary and of a coercive nature without providing for a normal trial or a right of appeal except in those cases where a substantial question of interpretation of the constitution arises. This Court is being flooded with applications under
Art.226 of the Constitution which is seriously affecting the normal work of the Court. We feel that the time has come when we may point out that
Art.226 of the Constitution was not intended to provide an alternative method of redress to the normal process of a decision in an action brought in the usual courts established by law. The powers under this Article should be sparingly used and only in those clear cases where the rights of a person have been seriously infringed and he has no other adequate and specific remedy available to him".
7.No doubt, the law has developed since the above decision was given by the Allahabad High Court in the year 1951, yet it must be reiterated that the development in the law relating to locus standi in writ petitions only carved out some exceptions to the main rule which has been stated correctly by the Allahabad High Court, and it is not that this main rule itself has been totally abolished. Exceptions remain exceptions, and do not become the main rule. Hence, we must reiterate that ordinarily a writ petition can only be filed by a person who is personally aggrieved.
8.In Vinoy Kumar vs. State of U.P., A.I.R. 2001 S.C. 1739 the Supreme Court observed (vide para.2):-
"Generally speaking, a person shall have no locus standi to file a writ petition if he is not personally affected by the impugned order or his fundamental rights have neither been directly or substantially invaded nor is there any imminent danger of such rights being invaded or his acquired interests have been violated ignoring the applicable rules. The relief under
Art.226 of the Constitution is based on the existence of a right in favour of the person in invoking the jurisdiction. The exception to the general rule is only in cases where the writ applied for is a writ of habeas corpus or quo warranto or filed in public interest. It is a matter of prudence, that the Court confined the exercise of writ jurisdiction to cases where legal wrong or legal injuries caused to a particular person or his fundamental rights are violated, and not to entertain cases of individual wrong or injury at the instance of third party where there is an effective legal aid organization which can take care of such cases. Even in cases filed in public interest, the Court can exercise the writ jurisdiction at the instance of a third party only when it is shown that the legal wrong or legal injury or illegal burden is threatened and such person or determined class of persons is, by reason or poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief."
9.In State of Orissa vs. Ram Chandra Dev and another, A.I.R. 1964 S.C. 685 the Supreme Court observed (vide para, 8):-
"But though the jurisdiction of the High Court under Art.226 is wide in that sense, the concluding words of the article clearly indicate that before a writ or an appropriate order can be issued in favour of a party, it must be established that the party has a right and the said right is illegally invaded or threatened. The existence of a right is thus the foundation of a petition under Art.226".
10.Similarly, in Gadde Venkateswara Rao vs. Government of Andhra Pradesh, A.I.R. 1966 S.C. 828 (vide para.8) the Supreme Court observed:-
"The right that can be enforced under
Art.226 also shall ordinarily be the personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified".
11.In Sand Carrier's Owners' Union and others vs. Board of Trustees for the Port of Calcutta, A.I.R.1990 Cal. 176 it was observed by the Calcutta High Court that "a Public Interest Litigation can be moved, where persons concerned for whose benefit it is moved or socially and educationally backward and Public Interest Litigation is also maintainable incases such as environmental etc.,"
However, it is also observed:-
"The members of such association may be affected by a common order and may have common grievance, but for the purpose of enforcing the rights of the members, writ petition at the instance of such association is not maintainable".
Accordingly, the Calcutta High Court dismissed the writ petition filed by the Owners' Union.
12.A similar view has been taken in Government Press Employees' Association Bangalore Vs. Government of Mysore, A.I.R. 1962 Mys.25.
13.In Dr.Duryodhan Sahu vs. Jitendra Kumar Mishra, (1998) 7 S.C.C.273, the Supreme Court observed that in service matters PILs should not be entertained.
14.Subsequently, in Ashok Kumar Pandey vs. State of West Bengal (2004) 3 S.C.C. 349, (vide para.16) the Supreme Court observed:-
"Though in Dr.Duryodhan Sahu vs. Jitendra Kumar Mishra, (1998) 7 S.C.C.273, this Court held that in service matters PILs should not be entertained, the inflow of so-called PILs involving service matters continues unabated in the courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision".
22.The said Hon'ble Division Bench has been followed by a Single Judge of the Hon'ble High Court of Madras in the judgment reported in (2008) 5 MLJ 1146 [NEYVELI LIGNITE CORPORATION, NILAM VEEDU KODUTHA KUZHAMPU PANIYALARGAL NALA SANGAM vs. NEYVELI LIGNITE CORPORATION]. Therefore, this Court is of the opinion that the writ petitioner being an association cannot file the writ petition seeking to substitute itself on behalf of individual persons who have infact appeared and failed in the main written examination.
23.In the judgment reported in (2009) 5 SCC 1 [ANDHRA PRADESH PUBLIC SERVICE COMMISSION vs. BALOJI BADHAVATH AND OTHERS] the Hon'ble Supreme Court has held that a person seeking an employment has got only a right to be considered for an appointment and the power of the respondents in evolving the policy cannot be interfered with unless the same is arbitrary, discriminatory or wholly unfair. Therefore, unless the procedure adopted by the second respondent is held to be arbitrary or against known principles of fair play, Courts shall not interfere with the same. Similarly, the judgment reported in AIR 1984 SC 1543 [MAHARASHTRA STATE BOARD OF SECONDARY AND HIGHER SECONDARY EDUCATION AND ANOTHER vs. PARITOSH BHUPESH KURMARSHETH] the Hon'ble Supreme Court was pleased to held in paragraph 14 is as follows:
"14.We shall first take up for consideration the contention that cl.(3) of Regn. 104 is ultra vires the regulation making powers of the Board. The point urged by the petitioners @ page-SC1550 before the High Court was that the prohibition against the inspection or disclosure of the answer papers and other documents and the declaration made in the impugned clause that they are ''treated by the Divisional Board as confidential documents'' do not serve any of the purposes of the Act and hence these provisions are ultra vires. The High Court was of the view that the said contention of the petitioners had to be examined against the back-drop of the fact disclosed by some of the records produced before it that in the past there had been a few instances where some students possessing inferior merits had succeeded in passing of the answer papers of other brilliant students as their own by tampering with seat numbers or otherwise and the verification process contemplated under Regn.104 had failed to detect the mischief. In our opinion, this approach made by the High Court was not correct or proper because the question whether a particular piece of delegated legislation whether a rule or regulation or other type of statutory instrument is in excess of the power of subordinate legislation conferred on the delegate as to be determined with reference only to the specific provisions contained in the relevant statute conferring the power to make the rule regulation, etc. and also the object and purpose of the Act as can be gathered from the various provisions of the enactment. It would be wholly wrong for the court to substitute its own opinion for that of the legislature or its delegate as to what principle or policy would best serve the objects and purposes of the Act and to sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the regulation-making body and declare a regulation to be ultra vires merely on the ground that, in the view of the Court, the impugned provisions will not help to serve the object and purpose of the Act. So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it, in the sense that the rules or regulations made by it have a rational nexus with the object and purpose of the Statute, the court should not concern itself with the wisdom or efficaciousness of such rules or regulations. It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy how the provisions of the Statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act. It is not for the Court to examine the merits or demerits of such a policy because its scrutiny has to be limited to the question as to whether the impugned regulations fall within the scope of the regulation-making power conferred on the delegate by the Statute. Though this legal position is well-established by a long series of decisions of this Court, we have considered it necessary to reiterate it in view of the manifestly erroneous approach made by the High Court to the consideration of the question as to whether the impugned cl. (3) of Regn.104 is ultra vires. In the light of the aforesaid principles, we shall now proceed to consider the challenge levelled against the validity of the Regn. 104 (3)."
24.In the present case, the petitioner has not even challenged the procedure adopted by the second respondent. Therefore, this Court is of the opinion that such a policy decision evolved by the second respondent cannot be found fault with.
25.As observed earlier the power of the Court exercised under
Article 226 of the Constitution of India to have a judicial review over a policy lies in a narrow compass. In the absence of any legal right on the part of the petitioner to claim the relief, the writ petition is liable to be dismissed. A similar view has been expressed by the Apex Court reported in (2007) 6 SCC 44 [RAM SINGH VIJAY PAL SINGH AND OTHERS VS. STATE OF U.P. AND OTHERS]. In the said judgment, the Hon'ble Supreme Court has observed as follows:
"12.In Netai Bag vs. State of W.B. This court held as under in para 20 of the Reports: (SCC p.275) '' 20. The Government is entitled to make pragmatic adjustments and policy decision which may be necessary or called for under the prevalent peculiar circumstances. The court cannot strike down a policy decision taken by the Government merely because it feels that another decision would have been fairer or wiser or more scientific or logical. In State of M.P. vs. Nandlal Jaiswal it was held that the policy decision can be interfered with by the court only if such decision is shown to be patently arbitrary, discriminatory or mala fide. In the matter of different modes, under the rule of general application made under the M.P. Excise Act, the Court found that the four different modes, namely, tender, auction, fixed licence fee or such other manner were alternative to one another and any one of them could be resorted to.''
13. In the well-known case of BALCO Employees' Union (Regd.) vs. Union of India a three-Judge Bench summarised the law on the point as under: (SCC p.335c-f) '' In a democracy, it is the prerogative of each elected Government to follow its own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the court. It is neither within the domain of the courts nor the scope of the judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are the courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical.
Wisdom and advisability of economic policies are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is contrary to any statutory provision or the Constitution. In other words, it is not for the courts to consider relative merits of different economic policies and consider whether a wiser or better one can be evolved. In matters relating to economic issues, the Government has, while taking a decision, right to 'trial and error' as long as both trial and error are bonafide and within limits of authority. For testing the correctness of a policy, the appropriate forum is Parliament and not the courts.''
14. In Federation of Rly.Officers Assn. vs. Union of India it was held as under in para 12 of the Reports: (SCC p. 299) '' 12. In examining a question of this nature where a policy is evolved by the Government judicial review thereof is limited. When policy according to which or the purpose for which discretion is to be exercised is clearly expressed in the statute, it cannot be said to be an unrestricted discretion. On matters affecting policy and requiring technical expertise the court would leave the matter for decision of those who are qualified to address the issues. Unless the policy or action is inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of power, the court will not interfere with such matters.''
26.The petitioner cannot file a writ petition on the ground that on earlier occasions a different procedure has been followed. The principle of legitimate expectation cannot be put against the public policy or any public interest unless the action amounts to an abuse of power. In the judgment reported in (2009) 1 SCC 180 [SETHI AUTO SERVICE STATION AND ANOTHER vs. DELHI DEVELOPMENT AUTHORITY AND OTHERS] the Hon'ble Supreme Court has observed as follows:
"33.It is well settled that the concept of legitimate expectation has no role to play where the State action is as a public policy or in the public interest unless the action taken amounts to an abuse of power. The court must not usurp the discretion of the public authority which is empowered to take the decisions under law and the court is expected to apply an objective standard which leaves to the deciding authority the full range of choice which the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, the court will not interfere on the ground of procedural fairness to a person whose interest based on legitimate expectation might be affected. Therefore, a legitimate expectation can at the most be one of the grounds which may give rise to judicial review but the granting of relief is very much limited."
Therefore, on the ground of legitimate expectation also the petitioner cannot seek the relief sought for.
27.As discussed above,
Article 14 of the Constitution of India is positive in nature. The mere fact that the procedure has been followed in some other case cannot be a ground for seeking the relief in the present writ petition. Even assuming that some irregularity or illegality has been committed by an authority there cannot be acquired right or claim on the basis of such an irregularity or illegality as the case may be. In the judgment reported in (2008) 9 SCC 396 [KERALA STATE ELECTRICITY BOARD vs. SARATCHANDRAN P. AND ANOTHER] the Apex Court has observed as follows:
"15. The learned counsel for the respondent State, on the other hand, supported the judgment and order of the Division Bench of the High Court. He submitted that the Division Bench was right in setting aside the judgment and order passed by the Single Judge as according to the Bench, there was no reason to grant benefit to the writ petitioners by appointing them as PSIs by relaxing Regulation 174. It was stated that so far as Hamidullah Dar is concerned, he was having post graduate degree and his case was totally different and that is how his name was recommended by the Director General of Police and accordingly, he was appointed as PSI. Other Constables did not possess such qualification and hence the Director General did not think it proper to recommend their cases for appointment as PSIs and there was no illegality in taking such action.
16. It was admitted by the learned counsel for the respondent state that the writ petitions filed by the appellant-writ petitioners came to be allowed and direction was issued to the authorities to consider their cases. But it was stated that the cases of the writ petitioners were considered by the authorities and it was not found fit to recommend their appointments as PSIs and accordingly the prayer was rejected.
17. It was also admitted that writ petition of Abdul Rashid Rather was allowed and he was granted benefit but it was stated that it was done because of the issuance of writ by the learned Single Judge which was confirmed by the Division Bench as well as by this Court. Since the writ petition was allowed and the said decision was approved by the Division Bench as also by this Court, the authorities had no alternative but to implement the said order. The said fact, therefore, cannot be construed in favour of the appellants. When a similar order was passed by a Single Judge in favour of the appellants and directions were issued by the Single Judge to give benefit similar to one which had been granted to Abdul Rashid Rather, the State Government approached the Division Bench and the Division Bench allowed the intra-court appeal. In the circumstances, the action of the state authority cannot be termed as illegal. It was, therefore, submitted that the appeals deserve to be dismissed."
28.Considering the above said judgments, this Court is of the opinion that even assume the second respondent has committed wrong not followed the procedure earlier, the same cannot be a ground for interference by granting the relief to the petitioner by invoking
Article 14 of the Constitution of India. Moreover, in a recent judgment rendered by the Hon'ble High Court reported in (2009) 5 MLJ 281 [DR.A.R.BALAMURUGAN vs. SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT] the Hon'ble High Court was pleased to observe that in a case where the policy decision has been evolved and in pursuant to the said policy decision, the candidate has participated in the selected process knowing fully about the prospectus then he cannot claim thereafter that the said clause in the prospectus is arbitrary and violative of
Article 14 of the Constitution of India. The Hon'ble High Court has observed as follows:
"9.5 The Division Bench of this Court in Writ Appeal Nos.89 to 91 of 2008, by an order dated 5.2.2008 had held that a person accepting the Prospectus on the terms and conditions found thereon and applied for the selection to the Post-Graduate Course at the time of submitting the application would not be permitted to raise the question that the terms and conditions in the Prospectus are bad in law or non-selection.
Paragraph Nos.4 and 5 of the said order is usefully extracted hereunder:
"4.Admittedly, all the appellants had applied for selection by accepting the said conditions. Even though the appellants were not selected for Post-Graduate Course at the time of submitting applications and on the date of selection, they were put on notice that on their selection, they will not be permitted to undergo Post-Graduate course within a period of two years, excluding the leave. Having applied for selection by accepting the said conditions, it is not open for the appellants now to seek for further extension to join the post on the ground that they are pursuing their Post-Graduate Diploma. It is not permissible for the appellants to attack the conditions of the advertisement after participating in the selection process. (See Union of India and Another vs. N.Chandrasekharan and Others, AIR 1996 SC 795), I.L.Honnegounda vs. State of Karnataka and Others, AIR 1978 SC 28 and Om Prakash Shukla vs. Akhilesh Kumar Shukla (1986) (Supp) SCC 285).
5.Moreover, there is no power in the Authorities to grant relaxation of the condition to join duty. The binding nature of the instructions to the candidate is well settled. The Supreme Court in Punjab Engineering College, Chandigarh vs. Sanjay Gulati. AIR 1983 SC 560 has clearly laid down that the Prospectus is binding on all persons concerned and following the same, a Division Bench of this Court has also observed in Rathnaswamy, Dr.A. vs. Director of Medical Education, (1986) ELR 207 that the rules and norms of the Prospectus are to be strictly and solemnly adhered to. The same principle is reiterated in the case of Dr.M.Ashiq Nihamathullah vs. Government of Tamil Nadu and Others, (2005) WLR 697. It is not permissible for the Court to make any modification and/or relaxation in the conditions stipulated by the Prospectus. Further, granting of any relief in this petition would mean that the post in question will have to be kept vacant for another six months or one year causing serious prejudice to the general public."
Thus, the decision cited above would indicate that the petitioners who have participated in the selection process for the post-graduate courses fully knowing about the fact that 16 courses have been ear marked to in service candidates alone, cannot be heard to say later on non-selection, that ear-marking the 16 courses only for in service candidates alone is bad in law.
10.Secondly, the policy decision has been taken by the Government to ear-mark 16 Courses for the in-service candidates on the ground that the Government wishes to ensure that there is no scarcity of the Doctors and the services of the Doctors after completion of Post-Graduate Courses be utilized to serve the poor and needy of the country at large in particular. Considering the fact that there are number of vacancies in the Government Medical Colleges and the Hospital in the scarce specialities, in order to fill up these vacancies with Medical Officer qualified in these specialities, the Government have taken a decision to refer this Post-Graduate courses exclusively for the service candidates. When such a policy decision had been taken by the Government, it is not for this Court to direct or advise the Executives in matters of Policies.
10.1.Such a view had been taken by the Honourable Apex Court and the same is in Ekta Shakti Foundation vs. Government of NCT of Delhi (2007) 7 MLJ 730. Paragraph Nos.10 to 12 of the said judgment are usefully extracted hereunder at p.734 of MLJ:
"While exercising the power of judicial review of administrative action, the Court is not the appellate authority and the Constitution does not permit the Court to direct or advise the executive in matter of policy or to sermonize any matter which under the Constitution lies within the sphere of the Legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power. See Ashif Hamid vs. State of J&K AIR 1989 SC 1899, Shri Sitaram Sugar Co. vs. Union of India, AIR 1990 SC 1277. The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or is violative of the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court it cannot be interfere.
The correctness of the reasons which prompted the Government in decision making, taking one course of action instead of another is not a matter of concern in judicial review and the Court is not the appropriate forum for such investigation.
The policy decision must be left to the Government as it alone can decide which policy should be adopted after considering all the points from different angles. In matter of policy decisions or exercise of discretion by the Government, so long as the infringement of fundamental right is not shown, Courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government, the Court cannot interfere even if a second view is possible from that of the Government.
10.2.In yet another decision in S.Karthikeyan vs. Teachers' Recruitment Board, E.V.K.Sampath Maligai, 4th Floor, D.P.I. Compound, College Road, Chennai 600 006 (2007) 5 MLJ 361 : (2007) 3 CTC 814, the learned single Judge of this Court has held that "The policy decision of Government in selection for posts cannot be interfered with in a writ jurisdiction, except if it is violative of the provisions of the Constitution of India or contrary to public policy or laws in force or, if it is violative principle of natural justice. Further, it has been held in the said order that the petitioner thereof having participated in the process of selection, it may not be open to him to challenge the same later.
The said judgment squarely applicable to the facts of the present case."
29.Therefore, on a consideration of the entire facts and law as well as the arguments made by the learned counsels appearing for both sides, this Court is of the considered opinion that the writ petition deserves to be dismissed. Accordingly, the same is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
sri To
1.The Secretary Government of Tamil Nadu Home (Transport IIA) Department Fort St. George Chennai 600 009.
2.The Secretary Tamil Nadu Public Service Commission Government Estate Chennai 600 002