IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 02/04/2004 Coram: The Honourable Mr. Justice V.S. SIRPURKAR and The Honourable Mr. Justice F.M. IBRAHIM KALIFULLA W.A. No. 876 of 2001 and W.A. No. 880 of 2001 K.K. Senthilkumaran ... Appellant in WA 876 of 01 Mrs. K. Jayashree Vijaya chitra Appellant in WA 880 of 01 -Vs- The Secretary Tamil Nadu Public Service Commission ... Respondent in Chennai 2 both the appeals Appeals under Cl.15 of the Letters Patent against the order dated 28-9-2000 in W.P. No.17070/93 and W.P. No.1718/95 !For Appellants -- Mr. T. Visvanatha Rao ^For Respondent -- Mr. Paul Vasanthakumar :JUDGMENT
(Delivered by V.S. SIRPURKAR, J.)
This will be a peculiar case of successful operation but, the
patient collapsing. The following are the facts:
2. Appellants herein, who are brother and sister, challenged
the orders passed by the Tamil Nadu Public Service Commission (TNPSC
hereinafter), by which TNPSC cancelled their provisional selection for the
Government service. Brother Dr. K.K. Senthilkumaran, appellant in W.A.
No.876 of 2001, had applied for being selected as Assistant Surgeon while, the
sister Mrs. K. Jayashree Vijayachitra, appellant in W.A. No.880 of 2001,
for the post of Labour Officer. Both of them were duly selected though not
appointed. While appearing for the selection, they claimed the status of the
Scheduled Caste. They claimed that they belonged to the community Puthirai
Vannan, a Scheduled Caste community. In case of both of them, the Collector,
Madras, within whose territorial jurisdiction they were ordinarily residing,
had confirmed the caste certificates issued by the Tahsildar that they were
belonging to Puthirai Vannan, which was a scheduled caste community. At the
time of their selection, when they were directed to produce the community
certificates, the appellants produced the certificates issued by the
Headquarters Tashildhar, Mambalam-Guindy Taluk. These certificates were
examined by the Coll ector, Madras, who confirmed the said certificates
holding that the appellants to be belonging to Hindu Puthirai Vannan
community. The order goes on to say: The community of Dr. Thiru K.K.
Senthil Kumaran, s/o Thiru K. Krishnan is hereby confirmed as Hindu Puthirai
vannan Scheduled Caste on the basis of enquiry and verification of records.
Hence the community certificate issued by the Tahsildar, MambalamGuindy Taluk
in D.Dis No.5481/90 dated 20-2-1990 in favour of the captioned individual is
confirmed as a bona fide one. Identical is the order in case of his sister
also. However, this was not accepted by TNPSC. TNPSC, it seems, went into
the issue whether the appellants herein did really belong to Puthirai Vannan
community. This enquiry was probably initiated because, the community of K.K.
Senthil Kumaran, in his S.S.L.C. book was mentioned as Vannan. This was,
however, got corrected earlier on the basis of the application given by the
father of the appellants. TNPSC also referred to a certificate issued by the
Tahsildar, Thiruchendur about the nativity of the father of the appellants and
observed that the appellants father had in fact permanently settled at Madras
and, therefore, the Tahsildar, Tiruchendur could not have given the
certificate. Very curiously, TNPSC then went on to record as follows:
It is seen from the above fact that the Collector did not cause proper
enquiry in this regard. His report is based on the community certificate of
the father of the candidate which is not correct. The Commission has analysed
the issue in depth and has decided that Dr. K. Senthilkumaran does not
belong to Puthirai Vanna community (scheduled caste) On this basis, TNPSC
issued show cause notices and ultimately cancelled the provisional selection
of the appellants. The appellants were also debarred for three years from
appearing for further recruitment to be made by TNPSC.
3. Being aggrieved by this, writ petitions came to be filed,
which were disposed of by the learned single Judge by a common order. After
referring to the facts in details, the learned Judge has, in paragraph 8, held
that TNPSC had decided the cases on merits and the action of TNPSC in
rejecting the applications and cancelling the provisional selection of the
appellants to the post of Assistant Surgeon in the Tamil Nadu Medical Service
and Officer in the Labour Service and the punishment imposed were in order.
There does not appear to be any discussion regarding the merits or the powers
of TNPSC to issue such an order. Be that as it may, aggrieved by the order of
the learned single Judge, these appeals have been filed.
4. Learned counsel for the appellants brought to our notice
that genuine community certificates were issued in case of both the appellants
by the authorities who had the necessary power to issue those certificates.
Learned counsel points out that the genuineness of those certificates issued
by the Tahsildar, Mambalam-Guindy, Madras was never questioned by the TNPSC
nor is being challenged here also. Learned counsel further points out that
when a doubt was entertained in respect of those certificates, those
certificates were also enquired into by the Collector, Madras and a
full-fledged enquiry went into for that exercise and the Collector had very
clearly held those certificates to be genuine certificates and also confirmed
the finding in those certificates that the appellants/writ-petitioners
belonged to scheduled caste community called Puthirai Vannan. Learned
counsel then points out that there was no authority in the Commission, i.e.
TNPSC to sit as an appellate authority to the order passed either by the
Tahsildar or by the Collector and to come to its own conclusion on merits that
the appellants did not belong to scheduled caste community. He points out
that TNPSC, in cancelling the provisional selection and inflicting the
punishment on the basis of the reasoning given by it, has travelled outside
its own jurisdiction. Learned counsel points out that TNPSC could not have
cancelled the caste certificates on the ground that they were not correctly
granted.
5. As against this, Mr. Paul Vasanthkumar, learned standing
counsel for TNPSC says that TNPSC had the perfect authority to check the
certificates because it is only on the basis of those certificates that the
further selection and appointment depended. He relies on Rule 5 (e) of TNPSC
Rules of Procedure, 1996. The second and the most attractive argument of Mr.
Paul Vasanthkumar is that this Court did not have the jurisdiction to
entertain the writ petitions at all because this was a question pertaining to
the recruitment to Government service and, therefore, any such challenge could
have been made before the State Administrative Tribunal. Learned counsel
relies on Sec.15 of the Administrative Tribunals Act to suggest that this
subject essentially falls within the jurisdiction of the State Administrative
Tribunal and, relying on Sec.28 of the Administrative Tribunals Act, contended
that the jurisdiction of the High Court was completely excluded in this
behalf.
6. There can be no dispute that the question actually
pertained to the recruitment of the appellants to the Government service and,
therefore, covered by Sec.15 of the Administrative Tribunals Act. There can
be further again no question that what TNPSC had done was to cancel the
provisional selection of the appellants and as such the jurisdiction of this
Court was excluded by Sec.28 of the Administrative Tribunals Act and,
therefore, this Court could not have entertained the writ petitions.
7. The question, however, is whether TNPSC could have
actually acted as the appellate authority to the orders passed by the
Tahsildar and the Collector. If the TNPSC went on to quash the selection for
the reasons extraneous or by using the powers which were never there, could it
be said to be action within the jurisdiction of TNPSC? Could it even be
called to be a bona fide action on the part of TNPSC? In our opinion, what
TNPSC has done in this case is they have assumed to themselves the appellate
powers over the Tahsildars and Collector s orders. Then they went on to
examine the correctness of the order of the Collector. In our opinion, this
was not possible. The role of TNPSC in examining the certificates would only
be limited to see as to whether the certificates were true and genuine or
not. The correctness of the information given in the certificates could
not be tested by the TNPSC. In this case, the correctness of the community
certificate of the appellants was tested by the Collector, Madras, within
whose territorial jurisdiction the appellants were ordinarily residing, who
had the necessary authority to do so. Once that was done, TNPSC could not
assume for itself the powers to sit over the judgment of the Collector. In
our opinion, the whole exercise in cancelling the provisional selection was
absolutely uncalled for. Therefore, the action taken by TNPSC was itself a
non est action. The Court could entertain the writ petition only to the
limited extent of quashing the finding by the TNPSC that the petitioners were
not Scheduled Caste candidates.
We cannot, however, grant the relief of quashing the order of
TNPSC by which the selection was cancelled because, that would be the power of
the State Administrative Tribunal. We only point out that TNPSCs action in
holding that the appellants did not belong to scheduled caste community was
completely incorrect and without any justification and without any power and
hence, that order to that extent is erroneous in law. With this, we allow the
appeals to the extent that we have indicated in the sense that we set aside
the declaration by the TNPSC that the community certificates produced by the
appellants were not correctly granted. It will be now for the appellants to
move the proper authority for the relief.
The appeals are disposed of. No costs.
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The Secretary Tamil Nadu Public Service Commission Chennai 600 002
