Allowed

M.Silamparasan v. The Secretary and

Madras HC23 Jan 2019WA/424/2018

Case brief

AI extract

What is this about?

In an appeal concerning a Tamil Nadu Public Service Commission recruitment, the Division Bench held that failing to produce a certificate for a preferential quota does not preclude consideration for other general categories. The court allowed the appeal and directed appointment of the highest scorer.

What did the court decide?

The Petitioner was appointed to the post of Executive Officer, Grade-III. The 1st Respondent was directed to forward the name to the Department within two weeks, and the 2nd Respondent to issue the ap

M.Silamparasan Vs The Secretary and — Pension and Retirement Benefits | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 23.01.2019

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CORAM:

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THE HON'BLE MR.JUSTICE S.MANIKUMAR AND

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THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD

W.A.No.424 of 2018

and

CMP No.3728 of 2018

M.Silamparasan ... Appellant/Petitioner Vs. 1.The Secretary and Controller of Examinations Tamil Nadu Public Service Commission

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Chennai - 600 003

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2.Hindu Religious & Charitable Endowment Department Represented by its Commissioner No.119, Utthamar Gandhi Salai Nungambakkam, Chennai - 600 034 ... Respondent/Respondents (2nd respdt. suo motu impleaded by order of this court dated 23/01/2019 in the instant appeal)

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Writ Appeal filed under Clause 15 of the Letters Patent against the Order dated 18.01.2018 made in W.P.No.1103 of 2018.

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Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus to direct the respondent to consider the petitioners representation dated 11.01.2018 and permit the petitioner to appear for the interview on 19.01.2018 for the category of General.

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For Respondents: Mr.M.Loganathan, Standing Counsel for TNPSC for R1 Mr.M.Maharaja, Spl. Govt. Pleader (HR&CE) For R2

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

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J U D G E M E N T

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(delivered by SUBRAMONIMUM PRASAD, J.)

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Aggrieved by the order of the learned single Judge dated 18.1.2018 dismissing W.P. No.1103 of 2018, the writ petitioner has filed the instant writ appeal.

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In response to a Notification No.21/2016 dated 25.11.2106 issued by Tamil Nadu Public Service Commission, inviting applications for 29 vacancies for the post of Executive Officer, Grade-III, in Tamil Nadu Hindu Religious & Charitable Endowments Subordinate Service included in Group VIIB Services for the years 2014-15, 2015-16 and 2016-17, the writ petitioner applied for the same. The distribution of the vacancies are as under:

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GT G	GT G- PS TM	GT W	GT DW	BC G	BC - EX SE R	BC W	BC W- PS TM	BC DW	MB C/ DC G	MB C/ DC G- PS TM	MB C/ DC W	SC AG	SC G	SC G- PS TM	SC G- OR TH O	SC W	To ta l
5	1	2	1	4	1	2	1	1	3	1	2	1	1	1	1	1	29

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** Abbreviation:- GT-General Turn, BC - Backward Class, MBC/DC -Most Backward Class/Denotified Community, SC(A) - Scheduled Caste (Arunthathiyars), SC-Scheduled Caste, G-General, W-Women, DW-Destitute Widow, EXSER - Ex-Servicemen, PSTM - Persons Studied in Tamil Medium, ORTHO - Orthopaedically Challenged persons.

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The petitioner had claimed preference under PSTM Quota i.e. candidates who claimed to have studied the prescribed education in Tamil Medium. The petitioner could not produce the requisite certificate at the time of certificate verification and thus the petitioner's application was not considered, for not satisfying the eligibility condition as per the norms of the TNPSC Notification. Thereafter, petitioner gave a letter on 11.1.2018 to the Tamil Nadu Public Service Commission. The said letter reads as under:

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Registered Post with Acknowledgment Card

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Place : Kizhaveli Date : 11.01.2018

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From:

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M.Silambarasan, (Regn. No.300102/67), M/A 28, S/o.Murugesan Vadakkuveli T.Kizhaveli Udayarpalayam (Taluk) Ariyalur District Pincode 621 804

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To:

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Honourable Secretary and President of Selection Committee Tamil Nadu Public Service Commission Chennai - 600 003

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Sir, Sub : Application submitted as studied through Tamil medium wrongly and changed as studied in general category and called me for interview - Reg. *****

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I had applied for Grade-3 selection in Hindu Religious Charitable and Endowment Department. As I passed through the selection, I was called for certificate verification, on 20.11.2017. At the time of certificate verification, as I was asked that I had mentioned in my application that I studied in Tamil medium, I did not do like that. I gave a letter, stating that those who registered the copy, had wrongly mentioned and to give me an opportunity under the General category, instead of allotment under Tamil medium category. Receiving the same, you have rejected my number, in the list declared on 09.01.2017, as not eligible in the selection list, stating that you do not have belief in my educational qualification. Since I have obtained good marks in the examination, please call me for interview in general list itself.

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I humbly request you Sir/Madam, to remove my name from the Tamil medium category and to list me in the General category and to permit me to participate in personal interview.

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Yours faithfully,

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(M.Silambarasan)

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The petitioner has filed W.P. No.1103 of 2018 stating that since he was not able to give the requisite certificate, he would not be entitled to 20% of the reserved vacancies under PSTM Quota (Persons Studied in Tamil Medium), but he has to be considered for the seats earmarked for other and MBC categories. Before the learned single Judge, learned standing counsel appearing for the Tamil Nadu Public Service Commission has made a statement that the petitioner did not secure the minimum cut off mark for MBC category and had not come within the zone of consideration within the said category. This statement was obviously wrong because petitioner's application was not even considered. Learned single Judge based on the statement made by the learned counsel appearing for the Tamil Nadu Public Service Commission, dismissed the writ petition only on the ground that the petitioner has not secured minimum cut off mark, in MBC category.

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Aggrieved by the order of the learned single Judge dated 18.01.2018 made in W.P. No.1103 of 2018, petitioner has filed the instant writ appeal.

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When the writ appeal came up for hearing, it was pointed out by the learned senior counsel for the appellant that the petitioner's application, was not considered at all. It transpired that the learned counsel appearing for the Tamil Nadu Public Service Commission had informed the Hon'ble Division Bench which heard the matter at that point of time that the appellant would be called for interview and the date would be notified later. Based on the said statement, this Bench, on 28.11.2018, passed the following order:

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" Ms.C.N.G.Niraimathi, learned standing counsel for Tamil Nadu Public Service Commission, who have appeared earlier, on last two occasions, informed this court that the appellant would be called for interview and the date would be notified later, as the matter regarding interview was placed before the commission.

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Mr.S.R.Rajagopal, learned Additional Advocate General, who now appears on behalf of Mr.M.Loganathan, another learned standing counsel for TNPSC, would see to it that submissions made before this court, should be honoured.

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The matter again came up on 10.12.2018 and the earlier order of calling the petitioner for interview had not been complied with, this Bench therefore passed the following order: " On 28.11.2018, we passed the following order:

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Commission, who have appeared earlier, on last two occasions, informed this court that the appellant would be called for interview and the date would be notified later, as the matter regarding interview was placed before the commission.

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Mr.S.R.Rajagopal, learned Additional Advocate General, who now appears on behalf of Mr.M.Loganathan, another learned standing counsel for TNPSC, would see to it that submissions made before this court, should be honoured.

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Post on 10.12.2018."

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On this day, when the matter is listed for further hearing, Mr.M.Loganathan, learned Standing Counsel for Tamil Nadu Public Service Commission, submitted that the matter has to be placed before the Commission, which comprises of Chairman and 4 Members only. We passed the said order on 28.11.2018, hoping that the Commission would honour the statement made before this court. Mr.S.R.Rajagopal, learned Additional Advocate General, was even directed to see that the statement made before this court is honoured. There are hardly 5 members in the Commission. Between 28.11.2018 and 07.12.2018, orders dated 28.11.2018, could have been implemented by circulation. Commission is yet to commence implementation of the orders passed, despite the assurance and the time stated supra.

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We make it clear that the orders dated 28.11.2018 should be implemented and accordingly be reported by 14.12.2018, failing which, the court would take appropriate proceedings under the provisions of the Contempt of Courts Act, 1971."

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The matter again came up on 2.1.2019. Mr.S.R.Rajagopal, learned Additional Advocate General appearing for Tamil Nadu Public Service Commission submitted that interview was conducted on 18.12.2018 and the results would be published on or before 7.1.2019. The matter was therefore adjourned to 8.1.2019 and on the said date, the results of the interview was declared and the marks of the petitioner was made known. Order dated 8.1.2019, reads as under:

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"Pursuant to the order made on 28.11.2018, appellant has been called for oral test.

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On this day, Mr.Subbaiah, learned Senior counsel furnished the details of marks obtained by the appellant, both in the written examination held on 10.6.2017 and oral test conducted on 18.12.2018,

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

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in relation to the post of Executive Officer, GradeIII in Tamil Nadu Hindu Religious & Charitable Endowments Subordinate Service included in Group VIIB Services for the years 2014-15, 2015-16 & 2016-17. Details are reproduced.

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Reg. No. : 300102167 Community : MBC/DC Sex : Male Written Test Marks : 529.50 Oral Test Marks : 42.00 Total Marks : 571.50

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Note: The publication of the above CML is purely provisional subject to the outcome of the Writ Petitions relating to this recruitment, if any, pending on the files of the Hon'ble High Court, Madras/Madurai Bench of Madras, High Court.

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Mr.S.R.Rajagopal, learned Additional Advocate General, appearing for the respondent seeks accommodation to some other date.

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Post on 21.01.2019."

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We are informed by Mr.S.R.Rajagopal, learned Additional Advocate General for the Commission that the petitioner has secured highest marks amongst all the candidates. Narration of the above mentioned facts would show that, for some reason, the Tamil Nadu Public Service Commission, is not prepared to comply with the order of this court. The defiant attitude of the Tamil Nadu Public Service Commission is further evident from the counter affidavit filed by them. The counter affidavit to the instant writ petition places reliance on clause 6(L) of the Notification and the declaration signed by the writ petitioner. Clause 6L of the Notification and the declaration reads as under:

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" L. Incomplete applications and applications containing wrong claims or incorrect particulars relating to category of reservation/other basic qualification/eligibility wise/age/communal categories/ educational qualification/ physical qualification and other basic eligibility criteria will be liable for rejection."

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Declaration:

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I hereby declare that all the particulars furnished in this application are true, correct and complete to the best of my knowledge and belief. In the event of any information being found false or incorrect or ineligibility being detected before or after the examination or at any stage, any action can

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

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be taken against me by the TNPSC including rejection of my application.

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I hereby declare that I will not be a party to any kind of canvassing on my behalf.

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I further declare that I fulfill all the eligibility conditions prescribed for admission to the examination.

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I have gone through the instructions to the applicants and the Commission's notification for this recruitment before filling up the application form.

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I declare that I possess the physical standards prescribed for the post(s) which I am now applying.

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I certify that I have not been debarred/disqualified by the TNPSC or any other recruiting agency.

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I am not a dismissed Government Employee.

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I have verified the correctness of the particulars furnished in the application and taken a print out of the application."

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In paragraphs 9 and 10 of the counter affidavit, the Tamil Nadu Public Service Commission, has further gone on to aver as under:

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"9. It is further respectfully submitted that the select list of the candidates has been sent to the Head of the Department vide Commission's letter dated 22.02.2018 and appointment orders were also issued to the selected candidates by the Head of the Department vide Memorandum No.11474/2018/L-3/dated 12.03.2018.

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In the meanwhile, this Hon'ble Division bench has passed the interim order dated 16.3.2018 to keep one post vacant in the post of Executive Officer Grade-III HR & CE department. However, Tamil Nadu Public Service Commission has informed about the Interim orders of the Court to the Head of the Department, no further reply has been received from the Government, so far in this regard. It is respectfully submitted that as all vacancies were filled up and appointment orders issued to the selected candidates. The Hon'ble Commission is unable to implement the Hon'ble High Court's interim order. The petitioner made a false claim in his on-line application and therefore his application was rightly rejected as per the clause 6(L) and 15(f) of the Notification."

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A reading of the counter affidavit would show that the Tamil Nadu Public Service Commission, has taken different stand

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

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at different point of time. At one point of time, Commission had taken the stand that the petitioner has made a wrong claim and at another portion of the counter, the Commission has taken the stand that the petitioner has made a false claim. In view of the contradictory stand taken by the Commission, we are not entering into the debate, as to whether the writ petitioner has deliberately made a wrong/false statement. According to the Commission, the writ petitioner knew that he would not be considered as a PSTM category candidate, as he had not been able to produce the certificate, which would have entitled him, preferential allotment of the seat as a person who studied in Tamil Medium. Clause 6(L) has to be interpreted that for not furnishing of the certificate would only dis-entitle the petitioner from claiming the benefit for preferential allotment given to persons who have studied in Tamil Medium. But clause 6 (L) cannot be interpreted to mean that, on the failure to produce certificate, the petitioner would lose the chance of being considered, in other categories to which he is otherwise entitled, for a post.

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During the hearing of this appeal, learned standing counsel for the Tamil Nadu Public Service Commission stated that no post is available. But the learned senior counsel for the appellant has produced an information received under RTI Act, which categorically states that one post has been kept vacant as per the order of the Hon'ble Division Bench. The query and the answer received by the petitioner under RTI form HR&CE read as under:

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jkpH;ehL muRg;gzpahsh; njh;thizak; Fwpg;ghiz vz;/4775-RID-2/OTD-H1-2018. ehs; 01/10/2018 bghUs;; epakdk; (neuo) ? bray; mYtyh;. epiy ? III [Executive Officer, Grade - III], 2014-2017 - jfty; mwpa[k; chpikr; rl;lk; 2005?d; fPH; jfty;fisf; nfhhp jpU/K/rpyk;gurd; vd;gthplkpUe;J bgwg;gl;l 18/09/2018?Mk; ehspl;l kD ? jfty;fs; mspg;gJ ? bjhlh;ghf/ ghh;it jpU/K/rpyk;gurd; vd;gthplkpUe;J jfty; mwpa[k; chpikr; rl;lk; 2005?d; fPH; bgwg;gl;l 18/09/2018 Mk; ehspl;l kD/

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jpU/K/rpyk;gurd; vd;gtUf;F bjhptpf;fg;gLtJ ahbjdpy; jfty; mwpa[k; chpikr; rl;lk; 2005d; fPH; bgwg;gl;l md;dhhpd; kD Fwpj;J fPH;f;fz;lthW jfty; mspf;fg;gLfpwJ/

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

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thpir nfhug;gLk; jfty; mspf;fg;gLk; jfty;
vz;
1/ jkpH;ehL muRg;gzpahsh; 29 ngh;
njh;thizak; (TNPSC) K:yk;
2017?2018y; eilbgw;w ,e;J rka
mwepiyaj;Jiw bray; mYtyh;
fpnuL?3 [bjhFjp?VII B] njh;tpy;
(Notification No.21/2016)
vj;jid ngh; bjhpt
[ bra;ag;gl;Ls;sdh;/
2/ (TNPSC) (2017?2018) ,e;J rka Mk;
mwepiyaj;Jiw bray; mjpfhhp fpnuL
3 njh;tpy; bkhj;j fhypg;gzpapl';fs;
29/ njh;thizak; 29 ngiua[k; bjhpt[
bra;Js;sjh?
3/ ,y;iy vdpy; epug;gg;glhj jdpah; nfhhpa 2tJ nfs;tpf;F Mk;
fhypapl';fs; vj;jid? vd gjpy; mspf;fg;gl;Ls;sjhy; 3tJ
nfs;tpf;F gjpy;TWk; epiy
vHtpy;iy/
4/ tpz;zg;gjhuh;fs; ahuhtJ gzpapy; bjhpt[ bra;ag;gl;l 29
mkh;j;jg;glhky; epYitapy; tpz;zg;gjhuh;fSk; Jiwj;
cs;sth;fspd; vz;zpf;if? jiytuhy; gzpapy; mkh;j;jg;
gl;Ls;sdh;/ ,Ue;j nghjpYk;. cah;
ePjpkd;w Mizg;go. xU gzpaplj;ij
fhypahf itf;FkhW Jiwj;
jiythplk; nfhug;gl;lJ/ xU gzpaplk;
fhypahf itf;fg;gl;Ls;sjhf
Jiwj;jiytUk; bjhptpj;Js;shh;/

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,J Fwpj;J nky;KiwaPL bra;a tpUk;gpdhy; jpU/M.bkha;RjPd;. nky;KiwaPl;L mYtyh;- Jizr; brayhsh;. jkpH;ehL muRg; gzpahsh; njh;thizak;. gpnurh; ghyr; rhiy. brd;id 600 003 vd;w Kfthpapy; tpz;zg;gpf;fyhk;/

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The indisputable fact is that the appellant has secured the highest marks. A post has been kept vacant subject to the outcome of the writ appeal. The Tamil Nadu Public Service Commission is not correct in rejecting the application. The Tamil Nadu Public Service Commission, at best, would have only

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

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refused to consider his application for preferential allotment to the post, under PSTM quota. But, the petitioner is entitled to be considered for other categories. Learned single Judge, has passed the impugned order, only on a wrong statement made by the learned standing counsel for TNPSC, stating that the petitioner has not secured the minimum cut off marks. Learned single Judge, has not considered the issue as to whether, if a candidate has made a claim, under PSTM quota, and if a certificate to such preferential claim is not submitted, whether the said candidate can be considered for selection against the seats earmarked for MBC quota, or in general category? Our answer to the above issue is that the candidate who is otherwise qualified, should be considered, against the seats earmarked for MBC, the category to which the candidate belongs or in general category.

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Going through the materials on record, we only observe that when TNPSC has made a statement to the writ court, stating that the appellant did not secure the required cut off marks and on that basis W.P. No.1103 of 2018 was dismissed, whether such statement made, can be said as false or wrong statement. Undisputedly the writ petitioner is found by the Commission to have scored the highest marks, inter se among all the candidates, who have applied for the post of Executive Officer, Grade-III, in Tamil Nadu Hindu Religious & Charitable Endowments Subordinate Service. Appellant who has secured the highest marks among all candidates, has to be selected and accordingly appointed to the post notified.

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In the result, writ appeal is allowed. The Secretary and Controller of Examinations, Tamil Nadu Public Service Commission, namely the 1st respondent, shall forward the name of the appellant/writ petitioner to the Head of the Department, within two weeks from the date of receipt of a copy of this order.

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In order to issue orders of appointment on the recommendations made by the Tamil Nadu Public Service Commission, it is just and necessary that the Commissioner, Hindu Religious and Charitable Endowment Department, No.119, Utthamar Gandhi Salai, Nungambakkam, Chennai - 600 034 be impleaded as a party to the lis. Therefore, in exercise of the powers under Article 226 of the Constitution of India, we suo motu, implead HR&CE Department, represented by its Commissioner, as the second respondent. Registry is directed to carry out necessary amendments in the writ petition and in the writ appeal.

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On receipt of the recommendations from Tamil Nadu Public Service Commission, Chennai, Commissioner, HR&CE Department is directed to issue appointment order to the appellant, in the vacancy reserved, as per the directions of this court. Such

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order of appointment will be issued within four weeks. No costs in the writ petition. Consequently, the connected civil miscellaneous petition is closed.

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Sd/Assistant Registrar(CS IV)

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//True Copy//

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Sub Assistant Registrar
asr
To
1.The Secretary and
Controller of Examinations
Tamil Nadu Public Service Commission
Chennai - 600 003
2.The Commissioner
Hindu Religious & Charitable Endowment Department
No.119, Utthamar Gandhi Salai
Nungambakkam, Chennai - 600 034.
+1cc to Mr.M.Loganathan, Standing Counsel Sr.5303
+1cc to Mrs.Elizabeth Ravi, Advocate sr.5266
W.A.No.424 of 2018
and CMP No.3728 of 2018
nmI[co]
srg 28/02/2019

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M.Silamparasan v. The Secretary and

Case brief

What is this about?

What did the court decide?

M.Silamparasan v. The Secretary and

Case brief

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