BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11/11/2009 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE S.NAGAMUTHU W.A.(MD).No.585 of 2009 and M.P.No.2 of 2009 The Secretary, Tamil Nadu Public Service Commission, Anna Salai, Chennai 600 002. ... Appellant Vs. 1.M.Chitra 2.The Revenue Divisional Officer, Cheranmahadevi, Tirunelveli District. ... Respondents PRAYER Writ Appeal is filed under Section 15 of the Letters Patent against the Order of HER LORDSHIP MS.JUSTICE K.SUGUNA in the exercise of the special original jurisdiction of this Hon'ble Court in W.P.No.6252 of 2008 and M.P.Nos.1 and 2 of 2008, dated 06.08.2008. !For Appellant ... Mr.S.C.Herold Singh Government Advocate ^For Respondent 1 ... Mr.M.Sureshkumar :JUDGMENT
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[Judgment of the Court was delivered by S.NAGAMUTHU, J]
A stand, too technical, taken by the appellant to deprive the first
respondent of his rightful claim for being considered for a Governmental Post,
negatived in the Writ Petition is canvassed again in this Writ Appeal.
2. The appellant/Tamil Nadu Public Service Commission called for
applications from eligible candidates for Group IV Service [for the posts of
Village Administrative Officers] during the year 2007. Being eligible for the
said post, the first respondent duly submitted her application. Indisputably,
she belongs to Kattunayakan Community, which is a Scheduled Tribe. But the first
respondent could not submit her Community Certificate obtained from the
competent authority along with her application. However, her application was
entertained and she was allowed to participate in the written examination. Since
she had secured required cut off marks, she was provisionally selected and
called for certificate verification.
3. As a matter of fact, the first respondent made application in the year
1997 itself to the competent authority viz, the Revenue Divisional Officer,
Cheranmahadevi, for issuance of Community Certificate. However, such certificate
was not issued in time and that is the reason why, the first respondent could
not submit her Community Certificate along with her application.
4. Even on 30.10.2007, when she appeared for certificate verification
before the appellant, she could not produce her Community Certificate, since her
request for issuance of Community Certificate was still pending with the Revenue
Divisional Officer. She explained to the appellant about the peculiar
circumstances in which she had been placed. In the meanwhile, the second
respondent/the District Collector, sent a letter dated 06.11.2007 informing the
appellant/Service Commission that the request of the first respondent for
Community Certificate was under consideration. At last, she got Community
Certificate on 21.11.2007. But, the said Community Certificate was not in the
prescribed format as prescribed by the appellant. However, along with a written
representation, she submitted the same to the appellant. Despite the same, the
first respondent was not appointed and instead, by letter dated 11.06.2008, she
was informed by the appellant that the provisional selection was cancelled, as
she had not produced the community Certificate along with her application.
Challenging the same, the first respondent filed the Writ Petition, which was
allowed by a learned Single Judge by order dated 06.08.2008. Challenging the
same, the appellant/Tamil Nadu Public Service Commission has come forward with
the present Writ Appeal.
5. In this Writ Appeal, it is contended that as per the instructions to
the candidates and information brochure issued by the appellant, the candidates
were required to submit the copies of the necessary documents along with
applications to prove the qualification, age, experience, community etc and it
was made clear that in case of failure to produce the same, the applications
shall be summarily rejected. Based on the above clauses, it is contended, since
in the given case, the first respondent had failed to produce the Communicate
Certificate in time, her candidature was rejected. Reliance is placed on
Dr.M.Vennila v. Tamil Nadu Public Service Commission reported in 2006 (3) CTC
449, wherein a Division Bench of this Court has held that non-production of
necessary certificates along with application within the cut off date shall
disentitle the candidate from being considered. Therefore, according to the
appellant, the learned Single Judge ought to have dismissed the Writ Petition.
6. We have heard the learned Government Advocate appearing for the
appellant, learned counsel appearing for the first respondent and perused the
records carefully.
7. There can be no controversy that the instructions to candidates and the
brochure bind the candidates and the Service Commission, according to which, the
candidates are bound to produce all the necessary documents/certificates along
with the application. In general, the application shall be rejected for non-
production of such certificates/documents. But, in our considered opinion, an
exception can be carved out to the same. At this juncture, it would be
worthwhile to clarify that all certificates, which are required to be produced
along with application, cannot be treated equally. There are some certificates,
like certificates relating to the basic qualification etc., which are essential,
without which the applications cannot be entertained at all. On the other hand,
there are certain other certificates, like Community Certificate, certificates
relating to special consideration, like sports certificate, NCC, NSS
Certificates, etc., which are not essential for entertaining the application of
the candidates. So, there can be no controversy that non-production of the
former kind of certificates within the cut off date, shall be a ground to reject
the application summarily, as mentioned in the instructions to the candidates
and information brochure, because, they relate to the essential qualifications
for making application. To put it otherwise, unless the Service Commission is
satisfied about the eligibility criteria based on the said certificates, it
cannot entertain the applications, and therefore, the applications in such an
event are to be necessarily rejected.
8. Insofar as the later kind of certificates are concerned, for
entertaining the application, these certificates, which relate only to special
qualifications or consideration, are not that much material. Even in the absence
of these certificates, the applications are to be entertained and when the
question of considering the special qualifications or status arises, it would be
suffice, if the certificates are made available to the Commission. For example,
if a candidate claims that he/she is entitled for being considered under the
quota reserved for Schedule Tribe Community and if the required Community
Certificate is not produced, his/her application cannot be rejected, but instead
he/she has to be treated under the open quota. For any reason, if such a
Community Certificate is produced before the date of finalization of the
provisional selection list based on the cut off marks secured in the written
examination, in our opinion, the same would be suffice.
9. It is needless to point out that different cut off marks are,
generally, prescribed for different communities, such as Backward Class, Most
Backward Class, Scheduled Caste and Scheduled Tribe. The Community Certificate
is required only to find out whether a candidate is eligible for being
considered under the reserved quota and not for any other purpose. Any other
approach would result in deprivation of valuable right of a candidate for being
considered against the seats reserved for which she/he would be otherwise
entitled. Therefore, in our considered opinion, if the Community Certificate is
produced before the cut off mark is finalized to call the candidates either for
interview or for certificate verification, it would meet the requirements.
10. Much reliance has been made on the Judgment of this Court in
Dr.Vennila’s case. In our opinion, the principles stated therein cannot be made
applicable to the facts of the present case, as the facts are distinguishable.
In the above case, the Division Bench had no occasion, as it was not argued
before the Division Bench, to distinguish the essential certificates, which are
required for entertaining the applications and the certificates, which are only
for the purpose of claiming special status or privilege like reservation.
Therefore, the view taken by the Division Bench in Dr.Vennila’s case does not
come to the rescue of the appellant.
11. The learned counsel appearing for the first respondent has placed
reliance on a Judgment of this Court in C.Stella Mary v. TNPSC reported in 2009
(6) MLJ 1211, [of which one of us is the author JUSTICE S.NAGAMUTHU], wherein
delayed production of a destitute widow certificate was considered. Relying on
the two Judgments of the Hon’ble Supreme Court in Charles K.Skaria and others v.
Dr.C.Mathew and others reported in AIR 1980 SC 1230:1980 2 SCC 752, and Dolly
Chhanda V.Chairman, Jee reported in (2005) 9 SCC 779, it has been held that non-
production of the certificates along with application cannot be a ground to
reject the application. In paragraph 20 of the said Judgment in Charles
K.Skaria’s case, it has been held as follows:-
“20. There is nothing unreasonable or arbitrary in adding 10 marks for
holders of a diploma. But to earn these extra 10 marks, the diploma must be
obtained at least on or before the last date for application, not later. Proof
of having obtained a diploma is different from the factum of having got it. Has
the candidate, in fact, secured a diploma before the final date of application
for admission to the degree course? That is the primary question. It is prudent
to produce evidence of the diploma along with the application, but that is
secondary. Relaxation of the date on the first is illegal, not so on the
second. Academic excellence, through a diploma for which extra mark is granted,
cannot be denuded because proof is produced only later, yet before the date of
actual selection. The emphasis is on the diploma; the proof thereof subserves
the factum of possession of the diploma and is not an independent factor. The
prospectus does say :
(4)(b) 10% to diploma holders in the selection of candidates to M.S., and
M.D., courses in the respective subjects or sub-specialities.
13. Certificates to be produced:- In all cases true copies of the
following documents have to be produced:-
(K) Any other certificates required along with the application.
This composite statement cannot be read formalistic fashion. Mode of
proof is geared to the goal of the qualification in question. It is subversive
of sound interpretation and realistic decoding of the prescription to telescope
the two and make both mandatory in point of time. What is essential is the
possession of a diploma before the given date; what is ancillary is the safe
mode of proof of the qualification. To confuse between a fact and its proof is
blurred perspicacity. To make mandatory the date of acquiring the additional
qualification before the last date for application makes sense. But if it is
unshakably shown that the qualification has been acquired before the relevant
date, as is the case here, to invalidate this merit factor because proof, though
indubitable, was adduced a few days later but before the selection or in a
manner not mentioned in the prospectus, but still above-board, is to make
procedure not the handmaid but the mistress and form not as subservient to
substance but as superior to the essence”.
12. In the second case, in Dolly Chhanda v. Chariman, Jee and others
reported in AIR 2004 SC 5043:(2005) 9 SCC 779:(2004) 4 MLJ 111, in paragraph 9,
the Hon’ble Supreme Court has held as follows:-
9. The appellant undoubtedly belonged to reserved MI category. She comes
from a very humble background, her father was only a Naik in the armed forces.
He may not have noticed the mistake which had been committed by the Zilla Sainik
Board while issuing the first certificate dated 29.06.2003. But it does not
mean that the appellant should be denied her due when she produced a correct
certificate at the stage of second counselling. Those who secured rank lower
than the appellant have already been admitted. The view taken by the
authorities in denying admission to the appellant is unjust and illegal”.
13. After referring to the above two Judgments of the Hon’ble Supreme
Court, in paragraphs 15 and 16 of Stella Mary’s case, it is held as follows:-
“15. Applying the ratio laid down in the above judgments to the facts of
the case, one can be sure that it is not appropriate for the respondent to stick
on to a technicality which is not only merely procedural but it defeats the
very object sought to be achieved. As held by the Hon’ble Supreme court, what
is crucial is as to whether as on the last date for submission of application
the petitioner was a destitute widow or not. Yes, is the incontrovertible
answer to the said question.
16. Admittedly, long before the written examination, the petitioner
submitted a copy of the destitute widow certificate. Therefore, having regard
to the very object of reservation made for destitute widows, and having regard
to the ratio laid down by the Hon’ble Supreme Court, in my considered opinion,
in the case on hand, the reason stated in the impugned order for rejecting the
claim of the petitioner for being considered under the reserved quota for
destitute widows is not at all sustainable and therefore, the same is liable to
be quashed”.
14. At this juncture, it would be worthwhile to refer to a Judgment of a
Division Bench of this Court in Premanand v. The State of Tamil Nadu reported in
1995 2 MLJ 325, wherein, in paragraph 5, the Division Bench held as follows:-
“It must be pointed out that clause 13.5 only prescribed the procedure in
order to eliminate persons who do not belong to that category, to take undue
advantage. As long as it is not in dispute that the petitioner belongs to that
category of children born of intercaste marriage between S.C/S.T and Forward
Community and in addition to this, he was able to produce the certificate before
the application was scrutinized for admission, rejection of such application
amounted to giving greater value to the procedure than to the substantive right.
The procedure is intended facilitate enforcement of substantive right and not to
defeat the substantive right. Procedure is hand-maid of justice and to defeat
justice. Therefore, the Selection Committee acted arbitrarily when it rejected
the application, even though it had before it the certificate produced by the
petitioner to the effect that he satisfied the category of children born of
inter-caste marriage between S.C./S.T and Forward Community. As long as the
application was filed in time and the applicant was able to satisfy the
requirement of production of certificate from the appropriate authority, before
his application was considered for selection, it was not at all open to the
Selection Committee to refuse to consider the application only on the ground
that such a certificate had not been produced along with the application”.
15. We are in full agreement with the said view taken by the Division
Bench of this Court. Subsequently, the Judgments in Dr.M.Vennila’s case and
Premanand’s came to be considered in a batch of Writ of Petitions before the
First Bench of this Court in Dr.A.Rajapandian v. State of Tamil Nadu reported in
2006 (5) CTC 529, [presided over by the Hon’ble The Chief Justice A.P.SHAH],
wherein the Division Bench has discussed, as we have done here, the Judgment in
Dr.M.Vennila’s case and Premanand’s case and approved the view taken in
Premanand’s case.
16. As we have already stated, the community Certificate, though submitted
belatedly, but, before the preparation of the provisional selection list, would
be suffice. The principle stated by the Hon’ble Supreme Court in the above two
cases followed in Stella Mary’s case, and the Division Bench Judgments cited
supra needs to be applied to the present case.
17. Reservation in Governmental jobs and educational institutions has been
made with a laudable object of uplifting the downtrodden people like Backward
Class, Most Backward Class, Scheduled Caste and Scheduled Tribe. In this regard,
we do not propose to list out all those Judgments relating to reservation
including Mandal Commission case [Indra Sawhney vs. Union of India reported in
1992 Supp (3) SCC 217 of the Hon’ble Supreme Court, as the same would only add
to the length of this Judgment. Suffice it for us to say, while looking into
the facts of the case, the very object of providing such reservation cannot be
lost sight of. Therefore, we are of the opinion that on a too technical ground
relating to mere procedure, like the one which is raised by the appellant in the
case on hand, the rightful claim of a person, who needs upliftment by the
benefit of reservation cannot be deprived of. What all that is necessary is
whether such a person really belongs to the community, which gets the benefit of
reservation.
18. Yet another factual aspect also needs consideration. It is not the
case as though the first respondent was recalcitrant in not making any attempt
to get the Community Certificate from the competent authority. It is also not
the case as though the first respondent is a casteless woman. After all, she
does not live in a casteless society. By birth, she has acquired a caste known
as “Kattunayakan Community”, which is a Scheduled Tribe Community. Indisputably,
she made application to the Revenue Divisional Officer, who is the competent
authority in this regard for issuance of Community Certificate in the year 1997.
Though her immediate elder brother was issued with such a Community Certificate,
for the reasons best known to the second respondent, the urgency of the second
respondent to submit the Community Certificate for employment fell into the deaf
ears and the matter was kept pending for a decade. Several representations,
several personal meetings and several communications made by the first
respondent to the second respondent as well as to the higher authorities were of
no avail.
19. It could also be seen from the records that the Revenue Divisional
Officer rejected her claim, and thereafter, the District Collector had to
intervene in the matter and at his behest, and after a thorough enquiry,
undoubtedly, it was concluded that the first respondent also belongs to
Kattunayakan community, to which her brother also belongs to, and thereafter,
the Community Certificate was issued to the first respondent. Because of the
lethargic attitude of the Revenue Authorities to consider the request of the
first respondent for issuance of Community Certificate in time, she cannot be
made to suffer at all at the hands of the appellant. As we have already stated,
when ultimately it has been concluded that the first respondent belongs to the
Scheduled Tribe Community, we hardly find any reason to reject her claim for
appointment under the quota for the said community.
20. It is true that the first respondent did not produce the Community
Certificate before the provisional list of selected candidates was finalized. On
this score, in normal course, applying the principles stated above, this Court
would have held that the claim of the first respondent for consideration under
the reserved quota for Scheduled Tribe should be rejected. But, we do not
propose to do so, for the simple reason, as we have elaborately narrated above
that the first respondent cannot be blamed for the belated issuance of Community
Certificate. As we have already stated, the request of the first respondent for
issuance of Community Certificate was pending before the Revenue Divisional
Officer for more than a decade. It is only in these special and peculiar
circumstances, we are inclined to sustain the Order of the learned Single Judge.
21. In view of all the above, the Writ Appeal fails and the same is
dismissed. Consequently, connected Miscellaneous Petition is also dismissed.
NB