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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR
Dr. D. Karal
Versus
The State of Tamil Nadu, rep.by its Secretary & Others
Case No : W.P.No.19612 of 2007 & M.P.No.2 of 2007 W.P.No.19613 of 2007 & M.P.No.2 of 2007 W.P.No.19614 of 2007 & M.P.No.2 of 2007 W.P.No.19615 of 2007 & M.P.No.2 of 2007
Decided on : 25-07-2008
Reserve List - Appointment of Assistant Surgeon (Dental) - Tamil Nadu State and Subordinate Service Rules - 10(a)(i), 2(15A) - The reserve list candidates have a right to get appointed if the selected candidates fail to join duty. The reserve list is valid until the drawal of the regular list for subsequent appointment. The reserve list candidates get an indefeasible right if the selected candidates fail to join duty, and it is the legal obligation of the respondents to issue appointment orders to the reserve list candidates. The non-communication of the vacancy position by the Department in time to the second respondent will not affect the accrued right of the reserve list candidates. If the respondents fail to discharge their statutory obligation, the petitioners have the right to seek appointment on the basis of the availability of vacancies due to non-joining of the selected candidates. The petitioners' right to get selected cannot be allowed to be defeated by the inaction of the respondents. If the same is permitted, the respondents can defeat the rights of the reserve listed candidates though the selected candidates failed to join in time, which is to be treated as arbitrary and capricious and violative of Articles 14 and 16 of the Constitution of India. The second respondent is bound to release the petitioners' names for appointment in the vacant posts, which arose due to non-joining of the selected candidates.
Fact of the Case:
The petitioners, who are in the reserved list for the post of Assistant Surgeon (Dental) 2003-2005, sought appointment in the vacancies arising due to non-joining of the selected candidates. The respondents issued a fresh advertisement for selection of Assistant Surgeon (Dental) 2006, challenging the petitioners' rights.
Finding of the Court:
The court found that the reserve list candidates have a right to get appointed if the selected candidates fail to join duty, and it is the legal obligation of the respondents to issue appointment orders to the reserve list candidates. The subsequent selection list was allowed subject to the results of the writ petitions, and four posts were reserved in favor of the petitioners.
Issues: The main issue was whether the waiting list/reserve list candidates have the right to demand posting if the selected candidates fail to join duty for any reason.
Ratio Decidendi: The reserve list candidates have a right to get appointed if the selected candidates fail to join duty, and the non-communication of the vacancy position by the Department in time to the second respondent will not affect the accrued right of the reserve list candidates.
Final Decision: The second respondent is directed to send the names of the petitioners to the Government for appointment as Assistant Surgeon (Dental) within a period of two weeks from the date of receipt of copy of this order, and the respondents 1 and 3 are directed to give postings to the petitioners within a period of four weeks thereafter.
Prayer in these writ petitions are to quash the advertisement No.104 dated 4. 2007 and direct the respondents to appoint the petitioners, who are in the reserved list, in the vacancies arising for the post of Assistant Surgeon (Dental) 2003-2005 due to non-joining of the candidates.
2. The brief facts necessary for disposal of these writ petitions are as follows:
.(a) The petitioners have passed Bachelor of Dental Surgery from the Tamil Nadu Dr. MGR Medical University. On 19. 2006, the second respondent issued an advertisement calling for applications from the degree holders in Dental Surgery for the post of Assistant Surgeon (Dental) in the Tamil Nadu Medical Service. As per the said advertisement, there were 39 vacancies in the post of Assistant Surgeon (Dental) for the year 2003-2005. Petitioners having satisfied with the qualification, based on their applications, they were permitted to appear in the written examination conducted on 12. 2006.
.(b) The second respondent thereafter released a list of 79 candidates for oral test, which was to be held on 21. 2007. According to the petitioners, after the oral tests, a list of 39 candidates, including two candidates whose results were withheld, was published as they were selected and 11 candidates were placed in the reserve list for the post of Assistant Surgeon (Dental). Petitioners are among the reserve list candidates.
.(c) Communication was issued by the second respondent on 20.2.2007 stating that the petitioner in W.P.No.19612 of 2007 was placed in the reserve list in the category of MBC/denotified community (General-1); petitioner in W.P.No.19613 of 2007 was placed in the reserve list in the category of Scheduled Caste (1); petitioner in W.P.No.19614 of 2007 was placed in the reserve list in the category of General Turn (2) and Backward Community (1); and the petitioner in W.P.NO.19615 of 2007 was placed in the reserve list in category of Backward Community (General) (2).
.(d) The second respondent also published the reserve list in the newspapers by stating as follows:
"The candidates in the Reserve list from the respective categories will be considered for allotment in the place of the candidates in the select list who fail to join duty. The Reserve list is valid till the finalization of the select list of the subsequent recruitment to this post."
The communication dated 20.02.07 also stated that the reserve list will be in force until the drawal of next selection list for this post by Commission for selection of candidates therefrom against the vacancies caused due to any of the following reasons:
.(a) Non-joining of selected candidates.
.(b) Selected candidates who joined duty but left thereafter.
.(c) Cancellation of provisional selection of selected candidates for any reason."
.As per the above statement by the second respondent, the reserve list candidates are to be considered in the respective categories for allotment, if the selected candidates in the said categories fail to join duty.
.(e) The third respondent issued posting orders to the selected candidates on 4. 2007 stating that no representation from the candidates would be entertained seeking joining time and they have to join duty within 30 days from the date of receipt of the posting orders, failing which their names will be recommended to the Government for removing from the approved list. Thus, according to the petitioners, 30 days time was given to the persons under Rule 21(a)(11) of the Special Rules for the Tamil Nadu Medical Services, which was issued in G.O.Ms.No.221 Health and Family Welfare Department, dated 25. 1998.
.(f) According to the petitioners, 14 selected candidates failed to join duty within the prescribed period of 30 days or thereafter. The third respondent through his proceedings dated 15. 2007 informed the first respondent about the list of 14 candidates, who have failed to join duty due to their pursuing P.G. course. The respondents, failed to remove the names of
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