Ultimate decision in the appointment process lies with the General Body, and the decision may or may not be called as ratification.

JUDGMENT

(Prayer: Writ Petition filed under Article 226 of the Constitution of India to issue a writ of certiorarified mandamus or any other appropriate writ, order or directing, calling for the records of the third respondent Tribunal in its order dated 09.11.2018 made in O.A.No.722 of 2016 and has confirmed in R.A.No.1 of 2019 on 25.04.2019, quash the same and consequently direct the respondents to appoint the petitioner to the post of Assistant Director (Siddha) as per the Selection Process conducted in relation to Advertisement No.1/2011 from the due date with all monetary benefits and consequential benefits flowing therefrom.)

M.M. Sundresh, J.

1. Challenging the order of the third respondent dated 09.11.2018 and for a consequential direction to appoint the petitioner to the post of Assistant Director (Siddha) as per the Selection Process conducted in relation to Advertisement No.1/2011, the present writ petition has been filed.

2. The petitioner is one of the candidates, who sought for the post of Assistant Director (Siddha). It appears that the petitioner stood more meritorious than the other candidates. However, the second respondent has cancelled the selection made, which has been put to challenge before the Tribunal.

3. Before the Tribunal, the petitioner contended that inasmuch as he stood first, his name ought to have been approved and declared as selected. The second respondent does not have the power or authority to cancel the entire selection process including the position in which the petitioner has been placed. It is only the General Body, which is competent to take a decision.

4. The Tribunal dismissed the application, inter-alia, holding that the advertisement indicates that the power of cancellation lies with the second respondent. Therefore, having accepted the advertisement it not open to the petitioner to contend to the contrary.

5. The learned counsel appearing for the petitioner submitted that it is a case of exercising the powers, which is not available with the second respondent. Therefore, such a decision is nullity and void ab inito. The disqualification attached to the petitioner is no longer available since he was acquitted from the criminal cases. Therefore, looking from any perspective, the writ petition will have to be allowed as the reasoning of the Tribunal cannot be sustained in the eye of law.

6. The learned counsel appearing for respondents 1 and 2 would submit that the petitioner is estopped from contending to the contrary. After the cancellation of the entire notification, the petitioner did participate in the subsequent notification. At the relevant point of time, the Board was not in existence and, therefore, there is no question of exercising the power by the Board.

7. In support of the contention, the learned counsel appearing for the petitioner made reliance on the judgment of the Apex Court in Marathwada University vs. Seshrao Balwant Rao Chavan, (1989) 3 SCC 132 and contended that inasmuch as when the statutory power is not available with the authority any exercise made cannot be ratified subsequently.

8. After hearing the counsel appearing for the parties, we are of the view that it is for the General Body to take a call. Admittedly, the notification did make a reference about the power of the second respondent. The theory of substantial compliance will come into play. The doctorine of necessity will have to be applied. This is for the reason that at the relevant point of time, the General Body was not in existence. Therefore, no one can expect the second respondent to comply with the Rules and Regulations by asking the General Body to exercise the said power when it is not even in existence. In any case, whether one can call it as a ratification or a decision, the ultimate decision lies with the General Body. We make the position clear that the General Body can either take a decision to reject the decision of the second respondent or otherwise. Such a decision may or may not be called as