Madras High Court
B.Varalakshmi vs The State Of Tamil Nadu on 31 July, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
2024:MHC:3036
W.P.Nos.9667 of 2024, etc. and Batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.07.2024
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
W.P.Nos.9667, 11171, 14377, 14812, 16921, 17115, 17487, 17551
& 18465 of 2024
and
W.M.P.Nos.10694 to 10698, 12242, 12243, 21335, 15619,
15622, 20705, 16047, 16048, 18621, 18624, 18625,
18883 to 18885, 19275, 19277, 19278 & 19336 of 2024
W.P.No.9667 of 2024:
1.B.Varalakshmi
2.S.Anjane Vasan
3.B.Gharishma
4.R.Karthikeyan
5.S.Swetha
6.M.Revathi
7.M.J.Sadhana Chudarvizhi
8.P.Abinesh Karthik
9.M.Punnagai ... Petitioners
Vs.
1.The State of Tamil Nadu,
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Represented by its Additional Chief Secretary to Government,
Home (Courts-I) Department,
Fort St. George, Chennai – 600 009.
2.The Secretary,
Tamil Nadu Public Service Commission,
Tamil Nadu Public Service Commission Road,
VOC Nagar, Chennai – 600 003.
3.The Secretary,
Human Resources Management Department,
Secretariat,
Chennai – 600 009.
4.The Registrar General,
High Court of Judicature at Madras,
High Court Buildings,
Chennai – 600 104. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorarified Mandamus, calling for the records
relating to the impugned provisional revised list published by the 2 nd
respondent dated 19.03.2024 and quash the same and consequently direct the
respondents to prepare the selection list per the Advertisement No.661,
Notification No: 12/2023 dated 01.06.2023.
For Petitioners : Mr.V.Raghavachari
Senior Counsel
For M/s.P.V.Law Associates
For R1 & R3 : Mr.P.S.Raman
Advocate General
Assisted by Mr.S.John J.Raja Singh
Additional Government Pleader
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W.P.Nos.9667 of 2024, etc. and Batch
For R2 : Mr.R.Bharanidharan
Standing Counsel
[For TNPSC]
For R3 : Ms.C.N.G.Niraimathi
For R4 : Mr.B.Vijay
COMMON ORDER
[Order of the Court was made by S.M.SUBRAMANIAM, J.]
The batch of cases on hand have been instituted questioning the
validity of the Revised Selection List published by the Tamil Nadu Public
Service Commission [hereinafter referred as ‘TNPSC’], pursuant to the
judgment of this Court dated 27.02.2024 in WP Nos.5105, 4430, 4431 and
4518 of 2024 and the order dated 07.03.2024 passed in Review Application
Nos.50, 51 and 52 of 2024.
2. TNPSC issued Recruitment Notification vide its advertisement
No.661 vide Notification No.12 of 2023, inviting applications from
candidates through online mode for direct recruitment to the post of Civil
Judge in Tamil Nadu State Judicial Service. 245 posts are notified, including
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92 carried forward vacancies. Preliminary examinations were conducted on
19.08.2023. As per the Recruitment Rules, 2450 candidates were called upon
to participate in the Main Examination, which was conducted on 4th and 5th
November, 2023. Viva voce test was conducted between 29.01.2024 and
10.02.2024. Provisional Selection List was published by Tamil Nadu Public
Service Commission on 16.02.2024.
3. Challenging the said Provisional Selection List, W.P.No.5105 of
2024 was filed mainly on the ground that the application of Rule 27(f) of the
Tamil Nadu Government Servants Conditions of Service Act, 2016
[hereinafter referred to as the ‘Act’, in short] was erroneously adopted by
TNPSC. Therefore, suitable directions are to be issued to redo the exercise in
consonance with Section 27(f) of the Act, based on the ratio laid down by the
Hon’ble Supreme Court of India in the case of State of Tamil Nadu and
Others vs. K. Shobana and Others1. The writ petition was allowed by this
Court on 27.02.2024, applying the ratio laid down by the Hon’ble Three
Judges Bench of the Supreme Court of India in the case of Shobana cited
supra. Special Leave Petitions were filed challenging the said judgment and
it was withdrawn by the petitioners, on the ground that they may be granted
1 [(2021) 4 SCC 686]
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liberty to challenge the Revised Selection List published by Tamil Nadu
Public Service Commission pursuant to the judgment of this Court dated
27.02.2024 in W.P.Nos.5105, 4430, 4431 and 4518 of 2024. Meanwhile,
Review Application Nos.50, 51 and 52 of 2024 were filed. The ground raised
by the third party review applicants were considered by this Court
elaborately and the Review Applications were dismissed on 07.03.2024.
4. Admittedly, no SLP has been filed against the order passed in the
Review Applications. The issues reached finality before the High Court. The
Revised Selection List published by TNPSC pursuant to the judgment
delivered in writ petition on 27.02.2024 is again under challenge before this
Court in the present writ petitions by the candidates, who were excluded
from the Provisional Selection List, consequent to the judgment of this Court
dated 27.02.2024.
5. Apart from the candidates participated in the selection process, few
persons who have not even participated in the selection process also filed
impleading petitions on the ground that they have planned to participate in
the ensuing recruitment process. We are not inclined to entertain the claims
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of those candidates, who have not participated in the selection process, since
they cannot be construed as aggrieved persons.
6. Accordingly, the Final Revised Selection List published by Tamil
Nadu Public Service Commission on 19.03.2024 was communicated to the
Government and the order of appointment is yet to be issued by the
Appointing Authority.
7. The learned Advocate General would submit that the files are
pending before the Hon’ble Governor and on approval, the order of
appointment will be issued without.
8. Mr.N.Subramanian, learned counsel appearing on behalf of the
candidates, who have not participated in the selection process articulated his
case mainly on the ground that the interpretation given by the Hon’ble
Supreme Court of India in the case of Shobana cited supra is per incuriam.
The very same counsel raised the very same ground during the first round of
litigation and we have clearly made an observation that such an argument
before the High Court would be improper, since the judgment of Three
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Judges Bench of the Hon’ble Supreme Court of India interpreted Section
27(f) of the Act, which is binding on the High Court.
9. Despite the fact that the said arguments are placed at the first
instance during the first round of litigation, the very same grounds are
reiterated. Therefore, we are not inclined to consider those grounds, which
were already considered by this Court in the judgment delivered on
27.02.2024 in W.P.Nos.5105, 4430, 4431 and 4518 of 2024. That apart,
further grounds raised by the third party review applicants were also
considered and the Review Applications were dismissed by this Court by
order dated 07.03.2024.
10. Mr.V.Raghavachari, learned Senior Counsel appearing on behalf
of the writ petitioners, would reiterate that the application of Reservation
Rules are improperly made and the interpretation given by this Court in the
order dated 27.02.2024, is not in consonance with the spirit of the provisions
of the Act. Therefore, the ratio laid down by this Court, is necessarily to be
revisited.
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11. Arguments are placed relating to Rule of Reservation and several
judgments are cited. We are of the considered opinion that all those
judgments relating to reservation would have no application with reference
to the facts of the present cases, since the limited point raised is about
interpretation and application of Section 27(f) [Third Proviso] to the Act.
Since the Three Judges Bench of the Hon’ble Supreme Court of India
interpreted the said provision in clear terms, this Court by following the
same, delivered judgment and Review Applications filed subsequently, were
also dismissed. Thus, the issues reached finality.
12. Re-adjudication of those issues are impermissible by instituting re-
litigations.
13. The learned Advocate General in this context, would submit that
the issues raised between the parties reached finality. The judgment of the
High Court delivered on 27.02.2024 was accepted by TNPSC and the High
Court and implemented in all respects by publishing the Revised Provisional
Selection List. The judgment in Review Applications has not been
challenged and reached finality. Thus, re-litigation is impermissible. More
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so, the very same 16 candidates, who were excluded from the Provisional
Selection List, filed the present Writ Petitions raising identical grounds,
which deserves no merit consideration.
14. The main contention is that the interpretation and the ratio laid
down by the Hon’ble Supreme Court of India in the case of Shobana cited
supra need not be applied. The Third Proviso to Section 27(f) of the Service
Conditions Act, stipulates that the backlog vacancies are to be filled up at the
first instance. Therefore, the first Provisional Selection List published is the
right way of implementing Section 27(f) Third Proviso.
15. The learned Advocate General in reply would oppose by stating
that it is impermissible on the part of the writ petitioners to contend that the
judgment of the Hon’ble Supreme Court, is per incuriam. Beyond that the
law laid down is in consonance with the constitutional principles, more
specifically, Article 16(4) and 16(4B) of the Constitution of India. Therefore,
by way of re-litigation, the writ petitioners cannot re-adjudicate the
principles already considered by this Court.
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16. In this context, the learned Advocate General would urge this
Court to apply the doctrine of constructive res judicata.
17. To substantiate the said doctrine, the Three Judges Bench of the
Hon’ble Supreme Court of India in the case of State of Karnataka and
Another vs. All India Manufacturers Organisation and Others2, held as
follows:
“32. Res judicata is a doctrine based on
the larger public interest and is founded on two
grounds: one being the maxim nemo debet bis
vexari pro una et eadem causa (no one ought to
be twice vexed for one and the same cause [ P.
Ramanatha Aiyer: Advanced Law Lexicon,
(Vol. 3, 3rd Edn., 2005) at p. 3170] ) and
second, public policy that there ought to be an
end to the same litigation [ Mulla: Code of
Civil Procedure, (Vol. 1, 15th Edn., 1995) at p.
94] . It is well settled that Section 11 of the
Civil Procedure Code, 1908 (hereinafter
“CPC”) is not the foundation of the principle
of res judicata, but merely statutory
recognition thereof and hence, the section is2 [(2006) 4 SCC 683]
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W.P.Nos.9667 of 2024, etc. and Batchnot to be considered exhaustive of the general
principle of law [See Kalipada De v.
Dwijapada Das, (1929-1930) 57 IA 24 : AIR
1930 PC 22 at p. 23] . The main purpose of the
doctrine is that once a matter has been
determined in a former proceeding, it should
not be open to parties to reagitate the matter
again and again. Section 11 CPC recognises
this principle and forbids a court from trying
any suit or issue, which is res judicata,
recognising both “cause of action estoppel”
and “issue estoppel”. There are two issues that
we need to consider, one, whether the doctrine
of res judicata, as a matter of principle, can be
applied to public interest litigations and
second, whether the issues and findings in
Somashekar Reddy [(1999) 1 KLD 500 : (2000)
1 Kant LJ 224 (DB)] constitute res judicata for
the present litigation.”
“37. Further, Explanation IV to Section
11, states:
“Explanation IV.—Any matter which might and
ought to have been made ground of defence or
attack in such former suit shall be deemed toPage 11 of 22
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W.P.Nos.9667 of 2024, etc. and Batchhave been a matter directly and substantially in
issue in such suit.”
“40. The judgment in Greenhalgh
[(1947) 2 All ER 255 (CA)] was approvingly
referred to by this Court in State of U.P. v.
Nawab Hussain [(1977) 2 SCC 806 at p. 809,
para 4 : 1977 SCC (L&S) 362] . Combining all
these principles, a Constitution Bench of this
Court in Direct Recruit Class II Engg. Officers’
Assn. v. State of Maharashtra [(1990) 2 SCC
715 : 1990 SCC (L&S) 339 : (1990) 13 ATC
348] expounded on the principle laid down in
Forward Construction Co. [(1986) 1 SCC 100]
by holding that:
“[A]n adjudication is conclusive and
final not only as to the actual matter
determined but as to every other matter which
the parties might and ought to have litigated
and have had (sic) decided as incidental to or
essentially connected with (sic) subject-matter
of the litigation and every matter coming into
the legitimate purview of the original action
both in respect of the matters of claim and
defence. Thus, the principle of constructive res
judicata underlying Explanation IV of SectionPage 12 of 22
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to writ case. We, accordingly hold that the writ
case is fit to be dismissed on the ground of res
judicata.” [Ibid., at p. 741, para 35, per L.M.
Sharma, J.].”
18. Regarding the re-litigation policy, the Apex Court in the case of
K.K. Modi vs. K.N. Modi3, held as under:
“42. Under Order 6 Rule 16, the court
may, at any stage of the proceeding, order to be
struck out, inter alia, any matter in any
pleading which is otherwise an abuse of the
process of the court. Mulla in his treatise on the
Code of Civil Procedure, (15th Edn., Vol. II, p.
1179, note 7) has stated that power under
clause (c) of Order 6 Rule 16 of the Code is
confined to cases where the abuse of the
process of the court is manifest from the
pleadings; and that this power is unlike the
power under Section 151 whereunder courts
have inherent power to strike out pleadings or
to stay or dismiss proceedings which are an
abuse of their process. In the present case the
High Court has held the suit to be an abuse of3 [(1998) 3 SCC 573]
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W.P.Nos.9667 of 2024, etc. and Batchthe process of the court on the basis of what is
stated in the plaint.
43. The Supreme Court Practice 1995
published by Sweet & Maxwell in paragraphs
18/19/33 (p. 344) explains the phrase “abuse of
the process of the court” thus:
“This term connotes that the process of
the court must be used bona fide and properly
and must not be abused. The court will prevent
improper use of its machinery and will in a
proper case, summarily prevent its machinery
from being used as a means of vexation and
oppression in the process of litigation. … The
categories of conduct rendering a claim
frivolous, vexatious or an abuse of process are
not closed but depend on all the relevant
circumstances. And for this purpose
considerations of public policy and the interests
of justice may be very material.”
19. In the case of K.K.Modi cited supra, the Hon’ble Supreme Court in
unequivocal terms held that it is an abuse of process of Court and contrary to
justice and public policy for a party to re-litigate the same issue, which has
already been tried and decided earlier against him. The re-agitation may or
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W.P.Nos.9667 of 2024, etc. and Batchmay not be barred as res judicata. In the present case, though it is barred as
res judicata, it becomes unnecessary for this Court to re-adjudicate the
issues, since the judgment of this Court in writ petition dated 27.02.2024 and
the order passed in Review Application dated 07.03.2024 were accepted and
implemented by Tamil Nadu Public Service Commission and the High Court
and the Revised Provisional Seniority List was published and communicated
to the Appointing Authority for issuance of appointment orders.
20. In the case of M. Venkateswarlu and Others vs. Government of
Andhra Pradesh and Others4, the Hon’le Supreme Court dealt with the
procedures to be followed to fill up the backlog vacancies, wherein in
paragraph-10, it has been held as under:
“10. In this case, the appellant fell short of
five months’ service for purpose of period of two
years as a Senior Assistant and of one year and
five months for purpose of total service of eight
years in the Revenue Department. In view of the
huge backlog of reserved vacancies on account of
non-availability of Scheduled Caste/Scheduled
Tribe candidates, the Government appears to have
intended to relieve the injustice to the appellant by
4 [(1996) 5 SCC 167]Page 15 of 22
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W.P.Nos.9667 of 2024, etc. and Batchrelaxing the prescribed period of service under
Rule 8(ii) read with the annexure. It is not in
dispute that the appellant had passed all the
prescribed tests well within time. The only
ineligibility was as regards completion of the
required period of service. It is settled law that the
Government cannot relax the basic qualifications
but in an individual case they can relax, in an
appropriate case, the conditions of service. It is
seen that the appellant having passed all the tests,
he was required to fulfil the condition of total
service of eight years and minimum service of two
years as Senior Assistant. Therefore, with a view to
fill up the backlog vacancies which, as rightly
pointed out by Shri P.P. Rao, undisputably is a
constitutional obligation, the Government appears
to have exercised the power under Rule 47 by
condoning the deficiency of requisite length of
service though no specific finding in that behalf
was recorded. The test of justice and equity
envisaged in Rule 47 is to be understood in this
background. Relaxation may be given to a class of
persons or an individual.”Page 16 of 22
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21. In the earlier round of litigation, this Court has considered the
spirit of Section 27(f) Third Proviso and its application with reference to the
ratio laid down by the Hon’ble Supreme Court in the case of Shobana cited
supra. The Apex Court in Shobana’s case considered the earlier judgments
of the Hon’ble Supreme Court. This Court in paragraph 12 of the judgment
dated 27.02.2024 reiterated “At what stage the application of the “first”
principle would apply. Section 27 deals with the reservation. It has nothing
to do with the general candidates list/general turn vacancies. Such of the
candidates who have made it on their own merit albeit, from the reserve
category, have not sought the benefit of the reservation. Thus, Section 27 of
the Act would have nothing to do up to that point. Section 27 would apply
only when the reservation principles begins, which is after filling up of the
seats on merit. Thus, the word “first” would apply at that stage i.e. the
backlog vacancies have to be filled in first and the current vacancies are to
be filled in thereafter. At the stage when the general category seats are
being filled, there is thus, no question of any carry forward or current
vacancies for reserved categories arising at all.”
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22. The First Selection List, which was quashed by this Court by
judgment dated 27.02.2024 was issued by TNPSC by wrongly interpreting
the scope of Section 27(f) Third Proviso of the Act. Consequently, top rank
holders were accommodated erroneously in the reserved category posts,
which resulted in offending the Constitutional Philosophy of social justice.
The methodology adopted by TNPSC was found to be violative of Section
27(f) Third Proviso of the Act and as interpreted by the Hon’ble Supreme
Court of India. Erroneous placing of the candidates under the General
Category and Reserved Category resulted in denial of opportunity to other
candidates entitled for inclusion of their names either under the General
Category or under the Reserved Category based on the merit ranking.
23. In judgment dated 27.02.2024, this Court has applied the
principles laid down by the Three Judges Bench of the Hon’ble Supreme
Court of India and directed the TNPSC to redo the exercise by applying the
ratio laid down by the Hon’ble Supreme Court and this Court in judgment
dated 27.02.2024. Accordingly, Revised Provisional Selection List was
published. The Review Applications filed by the third parties also has been
dealt with by this Court with reference to the grounds raised and dismissed.
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The said order became final and no Special Leave Petition has been filed.
24. All the respective learned Senior Counsels and the learned
counsels appearing on behalf of the writ petitioners have raised identical
grounds in the writ petitions. Some of the grounds raised are unconnected
with the issues relating to the publication of Revised Provisional Selection
List. Those issues deserve no further consideration.
25. We are called upon to test the correctness of the Revised
Provisional Selection List published by the TNPSC pursuant to the judgment
of this Court dated 27.02.2024 and the order passed in Review Application
on 07.03.2024. As rightly contended by the learned Advocate General, the
writ petitions are re-litigations. Therefore, re-adjudication of adjudicated
issues need not be undertaken. The litigations are barred under the principles
of constructive res judicata. Therefore, re-adjudication based on certain
other irrelevant grounds became unnecessary.
26. Mr.B.Vijay, learned counsel appearing on behalf of the High Court
of Madras would submit that this Court was called upon to test the
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correctness of the application of Section 27(f) Third Proviso to the Tamil
Nadu Government Servants Conditions of Service Act, 2016. Therefore, it is
not necessary that all those candidates selected need to be impleaded as
parties in the writ petitions. However, the excluded candidates filed Review
Applications and some of them filed the writ petitions.
27. Mr.B.Vijay, learned counsel would contend that the doctrine of
merger theory would apply in the present case. The Review Applications
filed by the third party candidates were also dismissed by this Court.
28. In view of the facts and circumstances, the petitioners have not
raised any acceptable ground for the purpose of reconsidering the issues
already adjudicated by this Court and judgment was delivered on 27.02.2024.
Further, the Review Applications filed by the third parties were dismissed on
07.03.2024. Thus, the present writ petitions are nothing but re-litigations
instituted. Re-adjudication on re-litigations on the identical issues raised are
impermissible. Thus, the Government shall proceed with issuance of the
orders of appointment as per the Revised Provisional Selection List
published pursuant to the judgment dated 27.02.2024.
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29. With these observations, the Writ Petitions stand dismissed.
Consequently, connected Miscellaneous Petitions are closed. However, there
shall be no order as to costs.
[S.M.S., J.] [C.K., J.]
31.07.2024
Svn/Jeni
Index : Yes
Speaking order
Neutral Citation : Yes
To
1.The Additional Chief Secretary to Government,
The State of Tamil Nadu,
Home (Courts-I) Department,
Fort St. George, Chennai – 600 009.
2.The Secretary,
Tamil Nadu Public Service Commission,
Tamil Nadu Public Service Commission Road,
VOC Nagar, Chennai – 600 003.
3.The Secretary,
Human Resources Management Department,
Secretariat,
Chennai – 600 009.
4.The Registrar General,
High Court of Judicature at Madras,
High Court Buildings,
Chennai – 600 104.
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W.P.Nos.9667 of 2024, etc. and Batch
S.M.SUBRAMANIAM, J.
and
C.KUMARAPPAN, J.
Svn/Jeni
W.P.Nos.9667 of 2024, etc. and Batch
31.07.2024
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