Allowed

P. Satheesh, v. Tamil Nadu Public

Madras HC20 Aug 2013WP(MD)/11922/2011

Case brief

AI extract

What is this about?

In a writ petition challenging a Provisional Selection List, the High Court held that the Tamil Nadu Public Service Commission could not ignore Government Orders equating professional and general degrees. The Court directed the inclusion of the petitioner, who secured higher marks than the selected candidate.

What did the court decide?

The writ petition was allowed; the impugned order was set aside; the petitioner was directed to be included in the seniority list and appointed as per law within six weeks.

P. Satheesh, Vs Tamil Nadu Public — Service and Employment | Madras HC (2013)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 20.08.2013

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CORAM

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THE HONOURABLE MR.JUSTICE S.TAMILVANAN

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W.P.(MD)No.11922 of 2011 and M.P (MD).Nos.1 and 2 of 2011

P.Satheesh

... Petitioner

vs.

Tamil Nadu Public Service Commission Through its Secretary, Commercial Tax Annexe Building, No.1, Greams Road, Chennai - 600 006. ... Respondent

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Writ petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus for the relief sought for in the writ petition.

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For Petitioner ... Mr.C.Arul Vadivel @ Sekar For Respondent ... Mr.N.S.Nandakumar for Mr.S.P.Maharajan for TNPSC

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ORDER

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This writ petition has been filed under Article 226 of the Constitution of India, seeking an order in the nature of writ of certiorarified mandamus, calling for the records pertaining to the provisional selection list published by the respondent on 07.10.2011 for appointment by direct recruitment to the post pertaining to the Combined Subordinate Services Examinations-I, 2009 for which oral test was held from 02.02.2011 to 28.03.2011 and quash the same as illegal and consequently, direct the respondent to publish the provisional selection list, based on the marks obtained by the candidates and declare the petitioner as one of the selected candidates.

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The petitioner had applied for the post in pursuance of the application called for by the respondent for the recruitment of various posts including in the Combined Subordinate Services Examination-I, 2009, as per the respondent's advertisement No.219, dated 15.11.2009. He was assigned Register No.11102152 and he wrote the written examination on 11.04.2010. According to the petitioner, he was a candidate belongs to Backward Class community https://hcservices.ecourts.gov.in/hcservices/ and he had successfully passed the written examination and was called for the oral test by the respondent on 24.03.2011, vide

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memorandum No. 2786/OTD-B3/2008, dated 13.01.2011 and attended the oral test on 24.03.2011. He has further submitted that he secured a total of 243 marks in the written examination and 30 marks in the oral test, as published by the respondent on 01.04.2011. The petitioner has further stated that he secured 273 marks out of 340 marks, however, he came to know that candidates who secured 213.5 marks were selected, as per the selection list. Hence, he made a representation to the respondent on 10.10.2011, requesting the respondent to declare him as selected candidate and to provide posting orders.

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In the grounds, the petitioner has stated that a candidate belongs to backward class community, who secured 59.5 marks, lesser than the marks obtained by the petitioner was shown as selected candidate in the impugned selection list and that the list was prepared according to the whims and fancy of the respondent, without following the legal norms or procedure known to law.

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In the counter, the respondent has admitted that the selection was made, based on (1) written examination and (2) oral test in the form of interview. The selection was for the appointment by direct recruitment to the posts, including the Combined Subordinate Services Examinations-I, 2009 and the result was published on 07.10.2011. It is further stated that the list of register number of candidates provisionally selected for appointment by direct recruitment to the posts including Combined Subordinate Services Examinations-I, 2009 was published on 10.10.2011, however, the selection relating to the non-interview post was yet to be finalised.

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In paragraph number 5 of the counter, the respondent has admitted that the petitioner, P.Satheesh, (Register No.11102151) had applied to the Commission for the appointment, by direct recruitment to the posts including Combined Subordinate Services Examination-I, 2009. In his application, he had claimed that he belongs to Backward class-Hindu community and possessed the qualification of B.L., (5 years, Integrated Degree course). As per the Commission's Notification for the said recruitment, the requisite qualification for the majority of the post notified was a Degree, viz., B.S., B.A., or B.Com. Those posts requiring certain specific qualifications are shown as follows :

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(i) Assistant Section Officer

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A Degree of B.L., only

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(Law Department) in the Secretariat.

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(ii) Women Welfare Officer in the https://hcservices.ecourts.gov.in/hcservices/ Tamil Nadu Social Defence Subordinate Service.

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Male candidates are not eligible

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(iii) Audit Inspector in the Audit Wing of the HR & CE Administration Department

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Persons professing Hindu religion alone are eligible

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(iv) Assistant in the Revenue Department

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A Degree (other than in professional subject)

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It is further stated in the counter that the petitioner had expressed his preference for the interview post as follows :

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"1. Municipal Commissioner, Grade II

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Sub-Registrar, Grade II

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Assistant Inspector of Labour

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Assistant Section Officer (Law Department) in the Secretariat.

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Assistant Section Officer (Other than Law and Finance Department) in the Secretariat.

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Assistant in the Revenue Department - (i) Dindigul, (ii) Coimbatore (iii) Tiruvarur, (iv) Theni and (v) Karur."

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It is also admitted by the respondent that the petitioner secured 243 marks in the written examination and 30 marks in the oral test and the total marks secured by the petitioner was 273 out of 340 marks. Having regard to the reservation in the appointment, vacancy-position, age, qualification and the preference of the candidate at the time of oral test have to be considered. According to the respondent, the petitioner did not reach his turn for selection or placing him in the reserve list, pertaining to the interview post, which includes the Combined Subordinate Service Examinations I, 2009. The respondent submits that the petitioner possessed a professional degree, viz., B.L., hence, he was not eligible to be considered for the post of Assistant in the Revenue Department in the Tamil Nadu Ministerial Services, as per the Commission's Notification for the said post. The only candidate, who had obtained total marks of 213.50, bearing Register No.00262045, Rank 2499 belongs to BC (OBC) category, who possessed the educational qualification of B.Com was selected. According to the petitioner, based on the criteria, as stated and discussed, he reached his turn for the post of Assistant in the Revenue Department including the Combined Subordinate Service Examinations-I, 2009. The respondent has admitted that the petitioner's representation, dated 10.10.2011 had been received by the office of the Tamil Nadu Public Service Commission, however, reply was not sent by the respondent, since the petitioner had not sent any self-addressed stamped envelope, as required by the Commission in para 19 (ii) of the TNPSC's https://hcservices.ecourts.gov.in/hcservices/ instructions etc., to candidates.

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It is also admitted by the respondent that as per the order, dated 19.10.2011 passed in M.P.(MD).No.21 of 2011 in W.P (MD).No.11922 of 2011 filed by the petitioner, the respondent was directed to keep one post vacant until further orders. However, the respondent has further submitted that the aforesaid interim order , dated 19.10.2011 relates to the selection list already published on 07.10.2011, hence, the question of keeping one post vacant does not arise. In the counter, the respondent has prayed to vacate the interim order, dated 19.10.2011. It is seen that the counter has been filed for M.P.(MD).No.2 of 2011 of the writ petition, though the respondent has stated that counter was filed in the main writ petition. It has been admitted by both the learned counsel that the interim order was not vacated, by any subsequent order.

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It is a well settled proposition of law that an interim order is also an order to be complied with till it is vacated, stayed or set aside, as per procedure known to law. Hence, violation of an interim order would also be construed only as contempt of court. Having admitted the receipt of the order, dated 19.10.2011 passed in M.P.(MD).No.2 of 2011, by this Court in the writ petition, " the respondent is not entitled to say that question of keeping one post vacant, does not arise".

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Learned counsel appearing for the petitioner filed copies of G.O.Ms.No.318, dated 29.12.1997 and G.O.Ms.No.139, dated 07.10.2009 issued by Personnel and Administrative Reforms Department, Government of Tamil Nadu.

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As per G.O.Ms.No.318, Personnel and Administrative Reforms (R) Department, dated 29.12.1997, the Government of Tamil Nadu has recognised the professional degree, such as B.E., M.B.B.S., B.V.Sc., and B.L., degree of 5 year course, which are treated on par with Bachelors Degree such as B.A., B.Sc., B.Lit., etc for the purpose of getting public employment. Subsequently, G.O.Ms.No.139, dated 07.10.2009 was also issued by Personnel and Administrative Reforms (M) Department, whereby, referring the earlier G.O.Ms.No.318, dated 29.12.1997, professional degrees, such as B.L., B.E., M.B.B.S., B.V.Sc., and B.Sc., (Agri) are ordered to be treated on par with Bachelors Degree, such as B.A., B.Sc., etc., for getting employment. The aforesaid G.Os issued by Government of Tamil Nadu are not disputed by the respondent herein.

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Hence, Tamil Nadu Public Service Commission, the respondent herein cannot take a decision against G.O.Ms.No.318, dated 29.12.1997 and G.O.Ms.No.139, dated 07.10.2009 passed by the Personnel and Administrative Reforms Department, Govt. of Tamil https://hcservices.ecourts.gov.in/hcservices/ Nadu, stating that for the post of Assistant in the Revenue Department, the qualification is only a degree other than professional degrees, contrary to the said G.Os.

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It is an admitted fact that the respondent had called for applications for the purpose of selecting candidates for various posts for the Combined Subordinate Services in the Government of Tamil Nadu. As the Government had passed the aforesaid G.Os., stating that professional degree, such as B.L., (5 year course) and other professional degrees are declared on par with Bachelors Degrees, such as B.A., B.Sc., etc., for getting public employment, the respondent cannot take a different stand, stating that a B.L., degree holder, of 5 years integrated course is not on par with any other Bachelors degree, such as B.A., B.Sc., and B.Com., etc.,

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It is not in dispute that the petitioner herein secured 273 out of 340 marks, both in the written exam and in the oral test. A candidate, who had obtained total marks of 213.50, bearing Registration No.262045, belongs to B.C (OBC), who possessed B.Com degree was selected. However, the petitioner herein was not selected on the ground that he is a professional degree holder, sine he had possessed a Bachelor degree of B.L., 5 years integrated course.

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It cannot be disputed that in public employment, the authorities should maintain the Constitutional mandate of equality before law and equal protection of law, as enshrined under Article 14 of the Constitution. As per Article 16 (4), nothing in the article shall prevent the State from making any provision for reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. In such circumstances, there should be no discrimination within the class, as decided by the State. In other words, leaving better qualified person, a less qualified person cannot be appointed in the same cadre or post, as it would be against equality before law.

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It is an admitted fact that the petitioner is a candidate, belongs to BC (OBC) and secured 273 out of 340 marks, however, he was not selected, on the ground that he is a professional degree holder of B.L., (Five year integrated course), whereas in the same category, another candidate, as stated above has been selected, though he had secured only lesser marks, being a B.Com., Graduate.

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In Ghazibad Development Authority v. Ashok Kumar , reported in (2008) 4 SCC 261 , the Hon'ble Supreme Court has held as follows :

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"A Statutory authority is obligated to make recruitments only upon compliance of the https://hcservices.ecourts.gov.in/hcservices/ equality clause contained in Articles 14 and 16 of the Constitution of India. Any appointment in violation of the said constitutional scheme

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as also the statutory recruitment rules, if any, would be void. These facts are required to be kept in mind by the labour Court before passing an award of reinstatement."

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In Nagendra Chandra v. State of Jharkhand , reported in (2008) 1 SCC 798 , it has been held by the Hon'ble Apex Court that if an appointment is made in infraction of the recruitment rules, the same would be violative of Articles 14 and 16 of the Constitution and being nullity, the same would be liable to be cancelled.

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The respondent, TNPSC, is not empowered to select any candidate in the same category, who has secured lesser marks, leaving the candidate, who secured higher marks against G.O.Ms.No.318, Personnel and Administrative Reforms (R) Department, dated 29.12.1997 and G.O.Ms.No.139, Personnel and Administrative Reforms (M) Department, dated 07.10.2009 of Government of Tamil Nadu.

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It is mandatory on the part of the respondent to follow the G.Os, issued by the Government then and there scrupulously, without any deviation. In view of the G.Os referred to above, it is crystal clear that the writ petition has to be allowed and the petitioner is entitled to get appointment, as the respondent has selected a lesser qualified person, instead of the petitioner and the petitioner is also entitled to seniority, as per procedure.

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In the result, this writ petition is allowed and the impugned order passed by the respondent, so far as the petitioner is concerned is set aside and the respondent is directed to publish the provisional selection list, by incorporating the name of the petitioner in the appropriate place of seniority list and the Government shall also provide appointment to the petitioner, as per the seniority to be fixed, according to law. However, it is made clear that the petitioner is not entitled to get any backwages, except seniority and other monetary benefits, based on the seniority. The order shall be complied with by the respondents, within six weeks from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is closed. No order as to costs.

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Sd/-

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Assistant Registrar(Records)

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/True copy/

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Sub Assistant Registrar

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https://hcservices.ecourts.gov.in/hcservices/

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