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A. Selvam, J.—The writ petitioners have filed WP (MD) Nos. 3889 & 3890 of 2013 on the file of this Court under Article 226 of the Constitution of India praying to issue a Writ of Declaration or any other appropriate Writ or Order so as to declare that G.O. Ms. No. 241, Personnel and Administrative Reforms (k) Department dated 29.10.2007 by way of implementing 200 point roster afresh from serial number one as null and void and the same is unconstitutional.
The appellants as writ petitioners have filed WP (MD) Nos. 252 and 253 of 2010 on the file of this Court praying to issue a writ of Certiorarified Mandamus so as to call for records from the first respondent pertaining to selection list published on 18.12.2009 and quash the same especially in respect of respective third respondent and consequently direct the first respondent to select the petitioners as District Educational Officers as notified in advertisement No. 183 dated 23.01.2009. The learned Single Judge has dismissed both the writ petitions by way of passing a common order. Against the common order passed by the learned Single Judge, these Writ Appeals have been preferred at the instance of the respective petitioner as appellant.
In both the Writ Petitions it is stated like thus:
The petitioner in WP(MD)No.3889 of 2013 is a Post Graduate with B.Ed., in Tamil Literature and presently working as B.T.Assistant in the Government Adi- Dravidar Welfare Women''s College Hostel, Theni. Likewise, the petitioner in WP(MD)No.3890 of 2013 is a Post Graduate with B.Ed., in Physics subject and working as P.G.Assistant in Government Higher Secondary School, Kothagiri from the year 2006. The second respondent has issued a notification /advertisement No. 183 dated 23.01.2009 and thereby invited applications for direct recruitment to the vacancies of post of District Educational Officer for the year 2008 and totally six vacancies have been notified and out of six vacancies, five vacancies are from open market on the basis of subjects. The petitioner in WP(MD)No.3889 of 2013 belongs to backward clause community. Likewise, the petitioner in WP(MD)No.3890 of 2013 belongs to Schedule Caste and both of them have applied for the said post and written test has been conducted on 03.05.2009. Since both the petitioners have secured requisite marks, they have been called for interview held on 25.11.2009. The petitioner in WP(MD)No.3889 of 2013 is the only woman candidate participated in the interview. Likewise, the petitioner in WP(MD)No.3890 of 2013 is the top scorer among all the candidates participated in the selection process. Though G.O. Ms. No. 241, Personnel and Administrative Reforms (k) Department dated 29.10.2007 has come into force with effect from 15.09.2007 which introduced 200 points roster afresh from serial No. 1, the subsequent G.O. Ms. No. 206 dated 06.11.2008 is in vogue at the time of advertisement, wherein in paragraph-3 it is clearly stated that for further selections/appointments, the revised roster prescribed in the Government Order shall be continued by the recruiting agencies/appointing authorities from the last turn upto which the selection has already been made. In fact in respect of District Educational Officer cadre, 100 point roster has been followed and various appointments have been made upto Serial No. 28. Under the said circumstances, G.O.Ms.Mo.241, Personnel and Administrative Reforms (k) Department dated 29.10.2007 has been issued by way of introducing 200 point roster, wherein no opportunity has been given from Serial No. 29. Issuance of G.O. Ms. No. 241 dated 29.10.2007 has really infringed the fundamental rights of the petitioners guaranteed under Article 16 of the Constitution of India. The roster system is in vogue only for the purpose of effectuating the fundamental rights. Under the said circumstances, these Writ Petitions have been filed for getting the reliefs sought for therein.
In the counter affidavit filed on the side of the first respondent in both Writ Petitions it is averred that the Government of Tamil Nadu have enacted the Tamil Nadu Backward Class Christians and Backward Class Muslims (Reservation of seats in Educational Institutions including private Educational Institutions and of appointments or posts in the services under the State), Act 2007 (Tamil Nadu Act 33 of 2007) providing reservations for appointments or posts in the services under the State for the Backward Class Christians and Backward Class Muslims at 3.5% out of 30% reservation and consequently issued G.O. Ms. No. 241, Personnel and Administrative Reforms (k) Department dated 29.10.2007 and thereby revised the existing 100 point roster prescribed in Schedule - III of the General Rules for Tamil Nadu State and Subordinate Services into 200 point roster and the same has been given effect from 15.09.2007 and subsequently vacancies have been filled up by way of adopting 200 point roster. After issuance of the said G.O. Ms. No. 241, Personnel and Administrative Reforms (k) Department dated 29.10.2007, a representation has been received from Christian Community and the Government have amended the Act by way of passing Amendment Act, 2008 so as to enable them to compete within the reservation provided for the Backward Classes. In pursuance of the said Act, orders have been issued in G.O. Ms. No. 206, Personnel & Administrative Reforms (K) Department dated 06.11.2008 and thereby revised 200 point roster and the said roster shall be made applicable in respect of those selections made by recruiting agencies and appointments made on or after 22.10.2008. However, recruiting agencies/appointing authorities have been informed that if any selection has been made with reference to 200 point roster prescribed in G.O. Ms. No. 241, Personnel and Administrative Reforms (k) Department dated 29.10.2007 need not be reopened and for further selections/appointments, the revised roster in G.O. Ms. No. 206, Personnel & Administrative Reforms (K) Department dated 06.11.2008 shall be continued by recruiting agencies/appointing authorities from the last turn upto which the selection has already been made. Since the first recruitment for the post of District Educational Officer, Tamil Nadu Public Service Commission has issued Advertisement No. 185 dated 23.01.1991 after issuance of 200 point roster in G.O. Ms. No. 241, Personnel and Administrative Reforms (k) Department dated 29.10.2007 and subsequently revised roster prescribed in G.O. Ms. No. 206, Personnel & Administrative Reforms (K) Department dated 06.11.2008, the roster starts afresh from serial No. 1 of 200 point roster for the post of District Educational Officer. There is no merit in the petitions and the same are liable to be dismissed.
In the additional counter filed on the side of the first respondent it is averred that G.O. Ms. No. 206, Personnel & Administrative Reforms (K) Department dated 06.11.2008 will not have any effect with reference to 200 point roster prescribed in G.O. Ms. No. 241, Personnel and Administrative Reforms (k) Department dated 29.10.2007. Even with regard to 100 point roster, amendments have been made and the same procedures have been adopted in switching over from 100 point roster to 200 point roster. The concept of running account has been followed in subsequent 200 point roster. In fact, after making amendment in 100 point roster system, selections have been made afresh from Serial No. 1. There is no merit in the petitions and same are liable to be dismissed.
In WP (MD) Nos. 252 and 253 of 2010 it is averred that by way of introducing G.O. Ms. No. 241, Personnel and Administrative Reforms (k) Department dated 29.10.2007, the fundamental rights of the petitioners has been infringed and even though the petitioners have acquired requisite marks, they have been denied selection on the basis of 200 point roster started from Serial No. 1. Under the said circumstances, WP (MD) Nos. 252 and 253 of 2013 have been filed.
On the side of the respondents detailed counter has been filed.
As stated earlier, the learned Single Judge after considering the rival contentions made in WP (MD) Nos. 25 and 253 of 2010 has rejected the claim of the petitioners and ultimately dismissed both the Petitions by way of passing a common order.
Since common questions of laws and facts are involved in these proceedings, a common order is pronounced.
Before excogitating the rival submissions made on either side it would be condign to elucidate the following admitted facts.
The petitioner in WP(MD)No.3889 of 2013 is a Post Graduate with B.Ed., in Tamil Lecturer and working as B.T.Assistant in the Government Adi-Dravidar Welfare Women''s College Hostel, Theni. The petitioner in WP(MD)No.3890 of 2013 is a Post Graduate with B.Ed., in Physics subject and working as P.G.Assistant in Government Higher Secondary School, Kothagiri from the year 2006. Both the petitioners are eligible for writing examination for the post of District Elementary Officer. The second respondent has issued notification/advertisement No. 183 dated 23.01.2009 and thereby invited applications for direct recruitment to the vacancies for District Educational Officer post for the year 2008 and totally six vacancies have been notified, out of which five vacancies have to be filled up from open market on the basis of subjects. Both the petitioners have applied for the said post. On the basis of their applications, they have been permitted to attend written test conducted on 03.05.2009 and subsequently an oral interview has been conducted on 25.11.2009. But unfortunately both the petitioners have not been selected since 200 point roster has been issued afresh, started from Serial No. 1.
In WP (MD) Nos. 252 and 253 of 2010 the petitioners have challenged the selection list published on 18.12.2009 and consequently prayed to direct the first respondent to select them as District Educational Officers. In WP (MD) Nos. 3889 and 3890 of 2013 the primary relief sought for is to declare that G.O. Ms. No. 241, Personnel and Administrative Reforms (k) Department dated 29.10.2007 is null and void and also unconstitutional. Since WP (MD) Nos. 252 and 253 of 2010 as well as WP (MD) Nos. 3889 and 3890 of 2013 are related to 200 point roster introduced as per G.O. Ms. No. 241, Personnel and Administrative Reforms (k) Department dated 29.10.2007 and since Notification/Advertisement No. 183 has been issued on 23.01.2009 on the basis of existing roster system, the Court has to first analyse the relief sought for in WP (MD) Nos. 3889 and 3890 of 2013 and further analyse as to whether the relief sought for in WP (MD) Nos. 252 and 253 of 2010 is based upon the relief sought for in WP (MD) Nos. 3889 and 3890 of 2013.
The learned Senior Counsel appearing for the petitioners/appellants has contended with great vehemence to the effect that originally 100 point roster has been introduced and selections have been made upto Serial No. 28 and the Government of Tamil Nadu all of a sudden and also to shock and surprise have issued G.O. Ms. No. 241, Personnel and Administrative Reforms (k) Department dated 29.10.2007 whereby introduced 200 point roster started afresh from Serial No. 1 and even though the petitioners have participated in the written test conducted on 03.05.2009 for the post of District Educational Officer and also appeared for oral interview, the fundamental rights of the petitioners guaranteed under Articles 14 and 16 of the Constitution of India have been infringed and the petitioners are not having any grievance with regard to implementation of 200 point roster and their only grievance is that 200 point roster should commence from the place where appointments/selections have been made on the basis of 100 point roster and further roster system is nothing but a running account and even though the petitioners have taken part in the written test conducted on 03.05.2009 and also attended interview held on 25.11.2009 since their fundamental rights are infringed/affected, question of waiver or estoppel does not arise. Under the said circumstances, WP (MD) Nos. 252 and 253 of 2010 have been filed for getting the reliefs sought for therein. But the learned Single Judge has erroneously observed to the effect that after taking part in the written test as well as viva voce test, the petitioners cannot agitate the selection made on the basis of Notification/Advertisement No. 183 dated 23.01.2009 and in order to declare that G.O. Ms. No. 241, Personnel and Administrative Reforms (k) Department dated 29.10.2007 is null and void, WP (MD) Nos. 3889 and 3890 of 2013 have been filed and therefore, the said G.O. Ms. No. 241 dated 29.10.2007 has to be declared as null an void and also unconstitutional.
In support of the contentions raised on the side of the petitioners/appellants, the following decisions are relied upon:
(a) In R.K. Sabharwal and others Vs. State of Punjab and others, it is observed that "the reservation prescribed shall be given effect to in accordance with a roster to be maintained in each department. The roster will be implemented in the form of running account from year to year.
Once the posts earmarked for the Scheduled Castes/Tribes and Backward Classes on the roster are filled the reservation is complete. Roster cannot operate any further and it should be stopped. Any post falling vacant, in a cadre thereafter, is to be filled from the category - reserve or general - due to retirement etc.,
Further it is observed that the impugned Government instructions are to be operated in accordance with the roster to be maintained in each Department. The roster is implemented in the form of running account from year to year. The purpose of ''running account'' is to make sure that the Schedule Castes/Schedule Tribes and Backward Classes get their percentage of reserved posts.
It is a settled principle of law that reservation should be given effect to only on the basis of roster to be maintained in each department and all appointments should be made in accordance with the same.
(b) In State of Uttar Pradesh and others Vs. Sangam Nath Pandey and others [(2011) 2 Supreme Court Cases 105], wherein at paragraph - 40 it is observed that "in our opinion, the State Government, in the present case, ought to have initiated necessary selection procedure upon due verification of the posts available for the reserved categories. It was not sufficient to merely send the requisition to the Public Service Commission. It was necessary for the State to pursue the matter with the Public Service Commission for completion of selection process. Otherwise, the very purpose of introducing the roster system and a running account would be totally defeated."
Since the selection process itself is erroneous, the Hon''ble Apex Court has observed as mentioned supra.
(c) In S.Jayasudha and Another Vs. the Director of Elementary Education, DPI Complex, College Road and others [CDJ 2012 MHC 561] at paragraph-11 it is observed as follows:
In the present case, the reservation was made by the State initially with a 100 point roster. Subsequently, it had switched over to the 200 point roster but it did not mean that the moment 200 point roster was introduced, the Management can go back to start the exercise all over again as if there was no reservation in existence before the introduction of 200 point roster. If the Management has any doubt as to whether a particular post falls within a particular roster point, they should have produced all registers to the department and should have got opinion from the Department with reference to ascertaining the correct roster point for filing up the post. On the other hand, they have taken the law into their own hands and given a perverted interpretation stating that the vacancy had to start with the General Turn. As rightly contended by the respondents, it was the petitioner''s own interpretation by making a post deserved for a Scheduled Caste and converting it into a General Turn vacancy.
The learned Single Judge of this Court has dealt with 200 point roster. No where it is stated that 200 point roster is null and void or unconstitutional. The main contention put forth before the learned Single Judge is that a selection has not been made in accordance with reservation.
(d) In Yashwant Upadhya Vs. Excise Commissioner, Allahabad and another, it is observed as follows:
if there is a roster, it has to be followed in accordance with the quota of reserved category as fixed under Article 16(4). If such roster exceeded the limited quota of reserved category, it deemed to have overlapped the quota of general category and in that event to that extent, such roster would be invalid. Therefore, the ratio decided in the said decision of Indra Shanker (supra) will help the petitioner''s contention as the roster would be invalid to the extent of overlapping the general category and by an executive order, the percentage fixed under Article 16(4) cannot be mutilated or in other word exceeded.
From a close reading of the said decision it is found that concerned selection has not been made in accordance with roster system in vogue. Under the said circumstances, the Allahabad High Court has observed as mentioned supra.
(e) In New English High School Association and Another Vs. Baldev Ade and Another, it is observed as follows:
The application of reservation percentage has to be with reference to the number of posts. It is always to be remembered that the reservation percentage is to be applied and the 50 point roster is to be followed taking into consideration the total number of posts in a cadre and at the same time care has to be taken that other category candidates are not prejudiced in the sense that the statutorily recognised reservation percentage does not exceed while implementing the reservation policy. Undisputedly the relevant rule requires 24%) of reservation out of which 13% for the S.C., 7% for the S.T., and 4% for the D.R/N.T. Considering the 24% reservation, if one applies the 50 point roster, it would result in reservation in excess of the statutorily specified percentage. In a cadre comprising of three posts with 24% reservation rule, if one applies the 50 point roster, then the reservation even in respect of one post would exceed 24% reservation. One-third cannot be equated to 24%. It is settled law that the reservation cannot be allowed to exceed the percentage prescribed for reservation as it would result in injustice to the candidates falling outside the reservation category.
It is an everlasting principle of law that reservation cannot be allowed to exceed the percentage prescribed for reservation and it would result in injustice to the candidates falling outside the reservation category.
(f) In Bengal Iron Corporation and another Vs. Commercial Tax Officer and others [1994 Supp (1) Supreme Court Cases 310] at paragraph - 18 it is stated that "so far as clarifications/circulars issued by the Central Government and/or State Government are concerned, they represent merely their understanding of the statutory provisions. They are not binding upon the Courts. It is true that those clarifications and circulars were communicated to the concerned dealers but even so nothing prevents the State from recovering the tax."
From the decision referred to supra it is made clear that clarifications/circulars issued by the Central Government or State Government are not at all binding upon the courts. Tax has to be levied in accordance with law.
(g) In Behram Khurshed Pesikaka Vs. The State of Bombay, , the Hon''ble Apex Court has held that "in a criminal case unless the prosecution proves a contravention of a provision that is legally enforceable and valid, it cannot succeed. No onus is cast on the accused to prove that his case falls under that part of the section which has been held unenforceable.
The bare circumstance that a citizen accused of an offence under S. 66(b) is smelling of alcohol is compatible both with his innocence, as well as his guilt. It is a neutral circumstance, the smell of alcohol may be due to the fact that the accused had contravened the enforceable part of S. 13(b) of the Prohibition Act. It may well be due also to the fact that he had taken alcohol which fell under the unenforceable and inoperative part of the section. That being so it is the duty of the prosecution to prove that the alcohol of which he was smelling was such that it came within the category of prohibited alcohols and the onus was not discharged or shifted by merely proving a smell of alcohol."
(h) In Basheshar Nath Vs. The Commissioner of Income Tax, Delhi and Rajasthan and Another, it is stated that "such being the true intent and effect of Art. 14 the question arises, can a breach of the obligation imposed on the State be waived by any person" In the face of such an unequivocal admonition administered by the Constitution, which is the supreme law of the land, is it open to the State to disobey the constitutional mandate merely because a person tells the State that it may do so? If the Constitution asks the State as to why the State did not carry out its behest, will it be any answer for the State to make that "true, you directed me not to deny any person equality before the law, but this person said that I could do so, for he had no, objection to my doing it." I do not think the state will be in any better position than the position in which Adam found himself when God asked him as to why he had eaten the forbidden fruit and the State''s above answer will be as futile as was that of Adam who pleaded that the woman had tempted him and so he ate the forbidden fruit. It seems to us absolutely clear,'' on the language of Art. 14 that it is command issued by the Constitution to the State a matter of public policy with a view to implement its object of ensuring the equality of status and opportunity which every Welfare State, such as India is by her Constitution expected to do and no person can, by any act or conduct, relieve the State of the solemn obligation imposed on it by the Constitution whatever breach of other fundamental right a person or a citizen may or may not waive, he cannot certainly give up or waive a breach of the fundamental right that is indirectly conferred on him by this constitutional mandate directed to the State."
It is a well known principle of law that as per Article 14 of the Constitution of India, no person shall be denied equality before law or equal protection of the laws within the territory of India.
(i) In Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, the Hon''ble Apex Court has held that "Plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure bona fides in day-to-day transactions. The Constitution makes no distinction, between fundamental rights enacted for the benefit of an individual and those enacted in public interest or on grounds of public policy."
(j) In S.Raghbir Singh Gill Vs. S.Gurucharan Singh Tohra and others [1980 Supp Supreme Court Cases 53] at paragraph-24, it is observed that "fundamental rights guaranteed under Constitutional policy cannot be waived."
(k) In State of Gujarat and Others Vs. Meghji Pethraj Shah Charitable Trust and Others, , it is observed that "an individual cannot waive the fundamental rights and the State equally cannot be prevented from discharging its obligations under part III of the Constitution by rules of evidence like estoppel, acquiescence or waiver."
(l) In K.Rajangam, Balasamudram Village, Palani Taluk Vs. the Superintendent of Police, Dindigul District and others [2005 - 4 - L.W.200], at paragraph - 11, the Division Bench of this Court has held that "in our opinion, even if there was an agreement between the Muslim community and the Devendrakula Vellalar community that Muslims will not use Kottai Kaliamman Kovil street such an agreement will be in violation of the constitutional guaranteed under Article 25 of the Constitution. It is well settled that there can be no waiver of fundamental rights vide Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, ."
(m) In M.S. Munivenkatappa Vs. State Bank of India, , the Division Bench of this Court has held that "fundamental rights guaranteed under constitutional policy cannot be waived by consent."
(n) In Veer Kunwar Singh University Ad hoc Teachers Association and Others Vs. The Bihar State University (C.C.) Service Commission and Others, , the Hon''ble Apex Court has held that "appointments made in violation of Constitutional Scheme would be wholly illegal and without jurisdiction."
(O) In C.M. Thri Vikrama Varma Vs. Avinash Mohanty and Others, , the Hon''ble Apex Court has held that "complexity of decision-making process cannot be a defence when a grievance is made before the court by a citizen that his fundamental right is violated."
(p) In State of Orissa and Another Vs. Mamata Mohanty, , the Hon''ble Apex Court held that "whole exercise done by the Stat authorities suffers from the vice of arbitrariness and thus is violative of Article 14 of the Constitution. Therefore, it cannot be given effect to."
The sum and substance of the contentions raised on the side of the petitioners/appellants is that on the basis of 100 point roster system, appointments have been made upto Serial No. 28 and even by way of introducing 200 point roster, selection process should be started from the place where system of 100 point roster is left and in the instant case, the fundamental rights of the petitioners/appellants guaranteed under Articles 14 and 16 of the Constitution of India are affected by way of introducing 200 point roster started from Serial No. 1 and even though the petitioners /appellants have appeared for written examination and also participated in viva voce test they have not waived their fundamental rights and no estoppel against statute.
In fact, this Court has analysed various decisions accited on the side of the petitioners/appellants and ultimately found that if there is any violation of fundamental rights guaranteed either under Article 14 or under Article 16 of the Constitution of India, affected citizen can approach Court for getting appropriate relief and question of waiver or estoppel does not arise. Further it is discernible that on the basis of factual circumstances of the given cases, the Hon''ble Apex Court as well as various High Courts have held that fundamental rights guaranteed under constitutional policy cannot be waived. Further it is made clear to the effect that if any appointments made in violation of constitutional scheme, would be wholly illegal and without jurisdiction.
As a repartee to the contentions raised on the side of the petitioners/appellants, the learned Advocate General appearing for the respondents 1 and 2 has befittingly contended that prior to introduction of 200 point roster by virtue of G.O. Ms. No. 241, Personnel and Administrative Reforms (k) Department dated 29.10.2007, 100 point roster has been followed, wherein some amendments have been made subsequently and vacancies have been filled up as per Schedule - III to Rule 22 (C) of Tamil Nadu State and Subordinate Services Rules and all selection process for appointment have been started afresh from Serial No. 1 and even after making amendments in 100 point roster, no Court has declared the same as illegal and on the basis of policy decision, the State Government of Tamil Nadu have passed G.O. Ms. No. 241, Personnel and Administrative Reforms (k) Department dated 29.10.2007 and on the basis of the said Government Order dated 29.10.2007, notifications/advertisements inviting applications for District Educational Officer post has been issued on 23.01.2009. On the basis of such notification, both the petitioners and others have sent their applications and a written test has been conducted on 03.05.2009, wherein some candidates have secured requisite marks for making appearance in interview and accordingly, interview has been conducted on 25.11.2009. On the basis of marks secured and also on the basis of serial numbers fixed in 200 point roster, the third respondent in WP (MD) Nos. 252 and 253 of 2010 has been selected respectively and since the petitioners have applied for the post of District Educational Officer on the basis of notification/advertisement dated 23.01.2009 which has been issued on the basis of existing roster (200 point roster) and since the petitioners have written examination and also attended oral interview and after having failed in their selections, they cannot agitate/challenge either the notification/advertisement dated 23.01.2009 or G.O. Ms. No. 241, Personnel and Administrative Reforms (k) Department dated 29.10.2007. Under the said circumstances, in WP(MD)No.252 and 253 of 2010 the learned Single Judge has rightly observed that both the petitioners/appellants are estopped from contending that notification/advertisement dated 23.01.2009 is unconstitutional and likewise, the petitioners /appellants cannot challenge G.O. Ms. No. 241, Personnel and Administrative Reforms (k) Department dated 29.10.2007 and altogether both the Writ Petitions as well as Writ Appeals are liable to be dismissed.
From the argument put forth by the learned Advocate General, the Court can easily ken that even in respect of 100 point roster subsequent amendments have been introduced and subsequent appointments /selections have been made from Serial No. 1 and the same has not been challenged in any Court. Further on the basis of subsequent amendments, various appointments have been made. The present G.O. Ms. No. 241, Personnel and Administrative Reforms (k) Department has been introduced on 29.10.2007. After a lapse of 15 months, for the post of District Educational Officer, notification /advertisement has been issued on 23.01.2009, wherein it has been clearly stated that selections/appointments shall be made in accordance with existing roster system. On the date of issuance of notification/advertisement dated 23.01.2009 100 point roster has not been in existence and only 200 point roster is in vogue.
The main gravamen expressed on the side of the petitioners/appellants is that the petitioners /appellants are not having any grudge in introducing 200 point roster by virtue of passing G.O. Ms. No. 241, Personnel and Administrative Reforms (k) Department dated 29.10.2007 and their only grievance is that 200 point roster system has to be implemented from the serial number, left on the basis of 100 point roster.
The defence taken on the side of the respondents 1 and 2 is that at the time of notification/advertisement dated 23.01.2009, 100 point roster is not in existence and since the petitioners/appellants have accepted the conditions mentioned in the notification/advertisement dated 23.01.2009 and since in the notification it has been clearly stated that appointments/selections have to be made in accordance with existing roster system, the petitioners/appellants cannot turn around to say that their fundamental rights have been infringed.
The entire argument put forth on the side of the respondents 1 and 2 is based upon the following decisions:
(a) In Ramesh Chandra Shah and Others Vs. Anil Joshi and Others, , the Hon''ble Apex Court has held as follows:
In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents.
It is not an exaggeration to say that the factual situations mentioned in the decision referred to supra are identical to the factual situations of the present petitions, wherein applications have been invited for the post of physiotherapist under 2008 Rules.
The respondents therein have taken part in the examinations. But they have not been selected. Under the said circumstances, the Hon''ble Apex Court has held in categorical terms that by having taken part in process of selection with full knowledge that recruitment was being made under 2008 Rules, the respondents have waived their rights to question advertisement or methodology adopted by Board for making selection.
In the instant petitions also as stated in many places the Government of Tamil Nadu have passed G.O. Ms. No. 241, Personnel and Administrative Reforms (k) Department dated 29.10.2007, whereby 200 point roster system has been introduced from Serial No. 1 and in pursuance of the same, after lapse of 15 months, notification/advertisement has been issued on 23.01.2009 for the post of District Educational Officer and after knowing fully well that such notification/advertisement has been issued on the basis of existing roster system that is, 200 point roster, the petitioners/appellants have sent their applications and appeared for written examination held on 03.05.2009 and also appeared in oral interview conducted on 25.11.2009. Therefore, it is quite clear that as per the latest decision given by the Hon''ble Apex Court reported in Ramesh Chandra Shah and Others Vs. Anil Joshi and Others, it is pellucid that the petitioners/appellants have already waived their right from challenging either G.O. Ms. No. 241, Personnel and Administrative Reforms (k) Department dated 29.10.2007 or subsequent notification /advertisement dated 23.01.2009. Further, fundamental rights of the petitioners have not been denied nor infringed in the instant petitions, since they have taken part in the written examination as well in oral interview. Further in the counter filed on the side of the respondents it has been clearly stated that even 100 point roster system has been subjected to subsequent amendments and subsequent appointments/selections have been started from Serial No. 1. In fact the said factual aspect has not at all been denied on the side of the petitioners/appellants. Therefore, the contention put forth on the side of the petitioners/appellants to the effect that 200 point roster system has to be implemented from the serial number, left on the basis of 100 point roster system. After passing 200 point roster system by virtue of G.O. Ms. No. 241, Personnel and Administrative Reforms (k) Department dated 29.10.2007, 100 point roster system has not been in existence.
In fact, this Court has closely perused the decisions accited on the side of the petitioners/appellants to the effect that doctrine of waiver has no application in cases of fundamental rights under the Constitution of India. It has already been pointed out that in the decisions relied upon on the side of the petitioners /appellants, the Hon''ble Apex Court as well as various High Courts have held in accordance with circumstances of the case that question of waiver does not arise. The factual situations found in those decisions are not identical with that of the present petitions. Even at the risk of repetition, the Court would like to point out that the factual premise exists in the decision reported in Ramesh Chandra Shah and Others Vs. Anil Joshi and Others, is identical with the factual situation of the present petitions. Therefore, this Court has completely followed the dictum given in the decision reported in AIR 2013 Supreme Court 1613. It has already been discussed and ultimately found that in the instant case the fundamental rights of the petitioners/appellants guaranteed either under Article 14 or under Article 16 of the Constitution of India have not been infringed. The petitioners/appellants have been given sufficient opportunity to take part in the examination conducted for the post of District Educational Officer. But unfortunately they have not been selected in view of existing arrangement mentioned in 200 point roster.
The learned Advocate General has also contended that on the basis of policy decision, the Government of Tamil Nadu have issued G.O. Ms. No. 241, Personnel and Administrative Reforms (k) Department dated 29.10.2007 and the same cannot be struck down. In support of the contention put forth on the side of the respondents 1 and 2, the decision reported in BALCO Employees Union (Regd.) Vs. Union of India and Others, is relied upon, wherein the Hon''ble Apex court has held that "the Court cannot examine relative merits of different economic policies and cannot strike down a policy merely on ground that another policy would have been fairer and better."
The petitioners/appellants have filed WP (MD) Nos. 252 and 253 of 2010 by way of challenging the notification dated 23.01.2009.
The learned Single Judge by way of passing a common order has dismissed both the petitions. The petitioner is WP(MD)No.252 of 2010 has secured total marks of 277.50. The third respondent in WP(MD)No.252 of 2020 has secured 279 marks and both belong to same category and on the basis of merit, the third respondent therein has been selected. Likewise, the petitioner in WP(MD)No.253 of 2010 has secured total marks of 216 and the third respondent therein has secured 160.50 marks and she has been selected on the basis of Schedule Caste women category as per roster. Therefore, even on the basis of selection the petitioners/appellants are not at all having any grievance.
WP (MD) Nos. 3889 and 3890 of 2013 have been filed so as to declare that G.O. Ms. No. 241, Personnel and Administrative Reforms (k) Department dated 29.10.2007 is null and void and unconstitutional by way of passing appropriate Writ of Declaration. Likewise, WP (MD) Nos. 252 and 253 of 2010 have been filed for issuance of Writ of Certiorarified Mandamus by way of challenging the notification dated 23.01.2009.
The learned Single Judge has observed to the effect that even in such notification it has been explicitly stated to the effect that all the selections/appointments shall be made only in accordance with roster system which is in force. It is an admitted fact that on the date of issuance of notification dated 23.01.2009, 200 point roster has been existence in pursuance of G.O. Ms. No. 241, Personnel and Administrative Reforms (k) Department dated 29.10.2007. The learned Single Judge has observed that having full knowledge about the post as well as mode of selection, the petitioners /appellants have participated in selection by way of writing examination and also by way of appearing in interview.
It has already been pointed out that in an identical case, the Hon''ble Apex Court in Ramesh Chandra Shah and Others Vs. Anil Joshi and Others, has held that the respondents therein are waived to make such kind of contention to the effect that such selection is not in accordance with law. Therefore, viewing from any angle, this Court is of the considered view that G.O. Ms. No. 241, Personnel and Administrative Reforms (k) Department dated 29.10.2007 is not at all unconstitutional. Further on the basis of G.O. Ms. No. 241, Personnel and Administrative Reforms (k) Department dated 29.10.2007 and also on the basis of 200 point roster, various selections have been made. Under the said circumstances, the relief sought for in WP (MD) Nos. 3889 and 3890 of 2013 cannot be granted in favour of the petitioners. Since G.O. Ms. No. 241, Personnel and Administrative Reforms (k) Department dated 29.10.2007 is not at all unconstitutional and the same cannot be declared as null and void, the subsequent notification /advertisement dated 23.01.2009 issued in respect of selection of District Educational Officer, wherein the petitioners/appellants have taken part, cannot be touched. Further as pointed out in various places, the learned Single Judge has rightly assigned the reasons for dismissing WP (MD) Nos. 252 and 253 of 2010. In view of the foregoing enunciation of both factual and legal aspects, this Court has not found any attractive/acceptable force in the contention put forth on the side of the petitioners/appellants and in fact this Court has found considerable force in the contention raised on the side of the respondents 1 and 2 and altogether the present Writ Petitions as well as Writ Appeals deserve to be dismissed.
In fine, WP (MD) Nos. 3889 and 3890 of 2013 and WA(MD)Nos.446 and 447 of 2012 are dismissed without cost. The common order passed in WP (MD) Nos. 252 and 253 of 2010 by the learned Single Judge is confirmed. Connected Miscellaneous Petitions are also dismissed.