@JUDGMENTTAG-ORDER
M.M. Sundresh, J.@mdashThe 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 Anr. v. Bharat Forge Co. Ltd. and Ors.] 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 Union of India (UOI)
Vs. Shri Mool Chand Dasumal Pardasani, , Central Railway Audit Staff Association and Others Vs. Director of Audit, Central Railway and
Others, , P. Vajravelu Mudaliar Vs. Special Deputy Collector, Madras and Another, , N.S. Balasubramanian and Others Vs. Food Corporation
of India, . 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 S. Pappa and Others Vs. Government of Tamil Nadu and Others, and (2004) 2
MLJ 314 [V. Krishnamurthy, Proprietor, Meena Advertisers, Chennai v. 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 v. 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 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 Anr. v. Bharat Forge Co. Ltd. and Ors.]. 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 Union of India (UOI) Vs. Shri 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 Anr. v. Vithal Rao and Ors.]. 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 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 P. Vajravelu Mudaliar Vs. Special Deputy Collector, 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 N.S. Balasubramanian and Others Vs. Food Corporation of India, as well.
In the judgment reported in 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 V.
Krishnamurthy, Proprietor, Meena Advertisers Vs. Airports Authority of India and Others, 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 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 v. 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 Tamilaga Asiriyar Koottani Vs. The Government of Tamil Nadu and Others, the Hon''ble Division Bench has observed
as follows:
5. A Division Bench of this Court in Formation of Indian Network Marketing Association, Chennai v. Apple FMCG Marketing Private Limited,
Chennai and Ors. (Writ Appeal No. 688 of 2005 dated 7.4.2005) reported in Formation of Indian Network Marketing Association Vs. Apple
FMCG Marketing Pvt. Ltd. and Others, , 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. Secy. to Government, Uttar Pradesh Labour Department and Others, 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 v. 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 Article 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 Article 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 Article 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. and Others, 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 Article 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 Mohan Prasad Singh Deo, the Supreme Court observed (vide para, 8):
But though the jurisdiction of the High Court under Article 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 Article 226.
10. Similarly, in Godde Venkateswara Rao Vs. Government of Andhra Pradesh and Others, the Supreme Court observed:
The right that can be enforced under Article 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 Owner''s Union and others Vs. Board of Trustees for the Port of Calcutta and others, 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 v. Government of Mysore AIR 1962 Mys.25.
13. In Dr. Duryodhan Sahu and Others Etc. Etc. Vs. Jitendra Kumar Mishra and Others Etc. Etc., , the Supreme Court observed that in service
matters PILs should not be entertained.
14. Subsequently, in Ashok Kumar Pandey Vs. The State of West Bengal and Others, the Supreme Court observed:
Though in Dr. Duryodhan Sahu and Others Etc. Etc. Vs. Jitendra Kumar Mishra and Others Etc. Etc., , 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
Neyveli Lignite Corporation Vs. The 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 A.P. 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 Maharashtra State Board of Secondary and Higher Secondary Education and Another Vs. Paritosh Bhupeshkumar Sheth and Others, 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 Clause (3) of Regn. 104 is ultra vires the regulation making powers of the Board.
The point urged by the petitioners
@ page-SC 1550 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 Clasue (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 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 v. 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. v. 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.) v. 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. v. 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 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 v. Saratchandran P. and Anr.] 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 Dr. A.R. Balamurugan Vs. The Secretary to
Government Health and Family Welfare Department and Others, 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 Anr. v. N. Chandrasekharan and Ors. AIR 1996 SC 795), I.L. Honnegounda v. State of Karnataka and Ors. AIR 1978
SC 28 and Om Prakash Shukla Vs. Akhilesh Kumar Shukla and Others, .
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 v. 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. v. 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 v. Government of Tamil Nadu and Ors. (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 v. 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 Asif Hameed and others
Vs. State of Jammu and Kashmir and Others, , M/s. Shri Sitaram Sugar Co. Ltd. and another Vs. Union of India and others, . 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, , 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.