IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.02.2010
CORAM
THE HONOURABLE MR. JUSTICE T.RAJA
W.P.NO. 9310 OF 2009
Ramesh Kumar .. Petitioner
- Vs -
1. Tamil Nadu Public Service Commission
rep. by its Secretary
Omanthoorar Govt. Estate
Anna Salai, Chennai 2.
2. The Controller of Examinations
Tamil Nadu Public Service Commission
Omanthoorar Govt. Estate
Anna Salai, Chennai 2.
3. The Principal Secretary to Govt.
Dept. of Health & Family Welfare (L-2)
Secretariat, Fort St. George
Chennai.
4. Dr. Guha. R.
5. Dr. Bagath Singh. K.
6. Dr.Amutha. A.
7. Dr.Geetha. R.
8. Dr.Anbuselvimattuvar Kuzhali. S.
9. Dr.Subramaniam. J.
10. Dr.Duraimurugan. M.
11. Dr.Poongundran. R.
12. Dr.Pradeep V.Krishnakumar
13. Dr.Ram Ganesh. S.
14. Dr.Cindhuja
15. Dr.Ramkumar. S.
16. Dr.Priyamvadha. C.R.
17. Dr.Sivamani. M.
18. Dr.Priyaraj. P.
19. Dr.Jeyaselvarani
20. Dr.Sasikaladevi. S.
21. Dr.Senthil Raj. K.
22. Dr.Gayathri M.S.
23. Dr.Jeganathan. S.Y.
24. Dr.Karthkeyan. M.
25. Dr.Kalaimathi. B.
26. Dr.Saleem. M.
27. Dr.Santhosh Kumar. M. .. Respondents
(RR-3 to 27 impleaded vide order
dt. 26.08.2009 in M.P.No.2 of 2009)
Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Declaration, declaring the provisional selection list dated 7.5.2009 of the 1st respondent to the post of health Officer as illegal and consequently direct the respondents to publish fresh select list by considering and including the name of the petitioner.
For Petitioner : Mr.Bharathachakravarthy
for M/s.Sai, Bharath & Ilan
For Respondent(s) : Ms.C.N.G.Ezhilarasi for RR1 and 2
Mr.N.Senthilkumar, AGP, for R3
No Appearance for RR4 to 27
ORDER
This writ petition has been filed seeking to declare the provisional selection list dated 07.05.2009 of the 1st respondent Commission to the post of Health Officer as illegal and consequently direct the respondents to publish fresh selection list by considering and including the name of the petitioner.
2. The only point raised in the writ petition is, if a candidate, who belongs to SC or BC, has secured highest marks among other candidates, irrespective of community/category to which he/she belongs, should he/she be fitted only in General Turn category or not. The contention of the petitioner is that the above said ratio laid down by the Supreme Court reported in Union of India Vs – Satya Prakash (2006 (4) SCC 550) has not been followed in the present case in respect of Dr.R.Guha, who is a reserved candidate and the 1st respondent, Tamil Nadu Public Service Commission (hereinafter referred to as ‘TNPSC’) has wrongly placed him in reserved category. Even though Dr.R.Guha has secured highest marks, instead of placing him in General Turn (GT) category, he has been included in reserved category, as a result, the writ petitioner who is a MBC candidate has been excluded from the selected list, but shown as No.1 in the waiting list, which is in violation of the Notification as well as ratio laid down by the Hon’ble Supreme Court. Had there been a proper fitment of candidates in accordance with the ratio laid down by various judgements of this Court as well as the Hon’ble Supreme Court, the petitioner, who belongs to MBC could have been selected under MBC category. Since the 1st respondent, TNPSC has not placed Dr.R.Guha, who is a reserved candidate in General Turn, instead placed him injuxtaposition in reserved category wrongly, the petitioner, who is a MBC candidate has been greatly prejudiced. Therefore, the present writ petition, assailing the bad method of fitting the selected candidates in the wrong place, has been filed.
3. According to the learned counsel appearing for the petitioner, the 1st respondent, TNPSC, at the time of issuing Notification, has indicated the procedures as to how the selection process should be conducted for the purpose of selecting the candidates to the various posts called for by the TNPSC, whereas at the time of appointing the selected candidates after subjecting them through proper selection process, have completely ignored the terms and conditions shown in the Notification and in contra, the 1st respondent TNPSC has appointed candidates contrary to the notification and as a result, the petitioner has been placed in Waiting List No.1.
4. The learned counsel further submitted that the result of one of the MBC candidates has been withheld by the 1st respondent TNPSC. Whileso, if the petitioner’s case is considered properly as per the law of the land, the petitioner would have been appointed, but in view of wrong method adopted by the 1st respondent in fitting the selected candidates, the petitioner has been wrongly kept in waiting list No.1.
5. In reply to the above submissions, the learned counsel appearing for the respondents 1 and 2 submitted that the 1st respondent, TNPSC, in its Notification dated 20.09.2008, called for applications from candidates for appointment by direct recruitment to fill up 26 vacancies in the post of Health Officer. The distribution of vacancies is given as under:
GT – 7 (GT G-5, GT W-2)
BC-OBCM – 7 (BC (OBCM) G-5, BC (OBCM) W-2)
BC-M – 1 (BC (M) G-1)
MBC/DC – 5 (MBC/DC G-3, MBC/DC W-2)
SCH – 6 (SC G-4, SC W-2)
Total – 26
6. The Educational Qualification prescribed in the Notification dated 20.09.2008 for the above said posts are also given as follows:-
“Candidates should possess the following or its equivalent qualification on the date of this Notification, viz., 20.09.2008:
(1) B.S.Sc. Degree of any University or Institution recognised by the University Grants Commission for the purpose of its grant or the Diploma in Public Health of the University of Calcutta;
OR
(2) A Certificate of having undergone a special course of training in Sanitary Science in the Medical College, Chennai for a period of not less than one year and of having passed the examination for licentiate in Public Health held at the end of that course.
Provided that preference shall be given to candidates who possess the qualification specified in item (1) above.
Provided further that if fully qualified candidates as specified above are not available upto the number required , applications from candidates possessing the M.B.B.S. Degree of any University or Institution recognised by the University Grants Commission for the purpose its grant or from candidates possessing the diploma of Medicine and Surgery or the Diploma of L.M.P. Granted by the Board of Examiners, Medical College, Chennai will be considered for selection subject to the following conditions:-
………………………………………………………………………………………..”
7. On the basis of the abovesaid method, the 1st respondent, TNPSC, intended to recruit highly qualified Doctors. Therefore, the TNPSC wanted to appoint Doctors with specialised knowledge in public health field. Since sufficient number of candidates possessing the qualification as specified in sub clause (1) of B to the Notification in which the preference should be given was not available, the candidates possessing mere M.B.B.S. Degree were also called for oral test. While drawing ranking list according to the merit of the candidates, preference has been given to the candidates, who possessed P.G. Degree in Public Health. Therefore, the ranking list was drawn in accordance with notification. The candidates possessing other qualification viz., like the petitioner, who possess only M.B.B.S. Degree have been placed below the candidates possessing P.G. Diploma in Public Health. Out of the candidates who appeared for the oral test, 5 candidates possessed M.B.B.S. and Post Graduate Diploma in Public Health. These 5 candidates who were ranked at top were selected against 5 vacancies earmarked to the GT (G) category. Of the 5 candidates, 4 candidates belonged to BC (OBCM) and 1 candidate belongs to SC. The petitioner herein was one among the candidates, who applied for the post of Health Officer by direct recruitment. He belongs to MBC/DC category. Since sufficient number of candidates having P.G. Diploma in Public Health were not available, the 1st respondent, TNPSC, admitted only those who possessed M.B.B.S. Degree including the petitioner to the oral test. The petitioner has secured 256.50 marks (i.e. 232.50 marks in written test and 24 marks in oral test). Out of 24 vacancies notified, 3 vacancies were earmarked for MBC/DC (Gents) category and 2 vacancies were earmarked for MBC/DC (Women) category. The petitioner has secured 4th position among MBC/DC (Gents) category. Since 3 candidates belonging to MBC/DC category secured more marks than the petitioner, the petitioner was placed No.1 in the Reserve List because the last MBC/DC (G) candidate selected to the post of Health Officer has obtained 256.50 marks. Since the petitioner failed to reach his turn for selection in the main list, he has been rightly placed in the reserve list under MBC/DC (G) category and GT (G) category.
8. In her further reply, the learned counsel appearing for the respondents 1 and 2 submitted that nowhere either at the time of holding written test or oral test, any incomplete selection process or any lapse or any error or violation of any rule or terms and conditions of the notification has been pin-pointed by the petitioner’s counsel. Even as of today, the petitioner has been placed in No.1 Reserve List. If for any reason, any one of the selected candidates does not join and the post falls vacant, the petitioner, being No.1 in reserve list, would be selected. Therefore, the learned counsel appearing for respondents 1 and 2 submitted that the writ petition does not deserve any acceptance by this Court.
9. Heard the learned counsel appearing on either side perused the records carefully.
10. The 1st respondent, TNPSC, decided to appoint candidates possessing better qualification in public health field. Therefore, the 1st respondent, TNPSC, has specifically mentioned B.S.Sc. Degree of any University or Institution recognised by the UGC or Diploma in Public Health of the University of Calcutta or the person having undergone a special course of training in Sanitary Science in the Medical College, Chennai, for a period of not less than one year and of having passed the examination for licentiate in Public Health, will be given first preference.
Though the 1st respondent, TNPSC, filed counter, the issue raised by the petitioner alleging non-application of the rule of reservation in the entire selection process has not been answered anywhere by respondents 1 and 2 in their counter, while fixing the percentage of reservation to the post of particular cadre.
The petitioner having been ranked 4th among MBC quota, his further claim that had the respondents 1 and 2 properly applied the rule of reservation, as held and repeatedly followed by Supreme Court in various judgments, the petitioner having been shown in 3rd position, as a male candidate, could have been successfully appointed as one of the Health Officer along with the other candidates, who have been appointed. This issue also has not been answered.
11. In the vacancies notified by the 1st respondent, TNPSC, since Dr.R.Guha has got higher qualification of M.B.B.S. with Post Graduate Diploma in Public Health, he has been awarded 195 marks. Therefore, the grievance of the petitioner is that, by following the rule of reservation, Dr.R.Guha, who belongs to reserved category, having secured highest marks on par with other General candidates falling in General Turn, as held by the Hon’ble Supreme Court in Indra Sawhney’s case (1992 Supp. (3) SCC 217) in para 2 (iii) at Page 370 r/w Para 15 in Page 429 and Para 862, should have been fitted against the General Turn, but he has been counted against the reserved category, thereby the chance of the petitioner selection has been extinguished.
12. So as to have a clear idea of this ticklish issue, one has to give a careful look at the Government of India’s Office Memorandum popularly known as ‘Mandal Commission Report, dated 13th Aug., 1990 and the ratio laid by the Supreme Court in Indra Sawhney’s case, as pressed into service by learned counsel for the petitioner in his favour. The Office Memorandum, which is relevant for deciding this case is extracted hereunder for easy reference :-
No. 36012/31/90-Estt. (SCT)
Government of India
Ministry of Personnel, Public Grievances & Pensions
(Deptt. of Personnel & Training)
OFFICE MEMORANDUM
New Delhi, the 13th August, 1990
Subject: Recommendation of the Second Backward Classes Commission (Mandal Report) Reservation for Socially and Educationally Backward Classes in Services under the Government of India.
In a multiple undulating society like ours, early achievement of the objective of social justice as enshrined in the Constitution is a must. The second Backward Classes Commission called the Mandal Commission was established by the then Government with this purpose in view, which submitted its report to the Government of India on 31.12.1980.
2. Government have carefully considered the report and the recommendations of the Commission in the present context responding the benefits to be extended to the socially and educationally backward classes as opined by the Commission and are of the clear view that at the outset certain weightage has to be provided to such classes in the services of the Union and their Public Undertakings. Accordingly orders are issued as follows:
(i) 27 per cent of the vacancies in civil posts and services under the Government of India shall be reserved for SEBC.
(ii) The aforesaid reservation shall apply to vacancies to be filled by direct recruitment. Detailed instructions relating to the procedure to be followed for enforcing reservation will be issued separately.
(iii) Candidates belonging to SEBC recruited on the basis of merit in an open competition on the same standards prescribed for the general candidates shall not be adjusted against the reservation quota of 27 per cent.
(iv) The SEBC would comprise in the first phase the castes and communities which are common to both, the list in the report of the Mandal Commission and the State Governments lists. A list of such castes/communities is being issued separately.
(v) The aforesaid reservation shall take effect from 7.8.1990. However, this will not apply to vacancies where the recruitment process has already been initiated prior to the issue of these orders.
Similar instructions in respect of public sector undertakings and financial institutions including public sector banks will be issued by the Department of Public Enterprises and Ministry of Finance respectively.
Sd/-
(Smt Krishna Singh)
Joint Secretary to the Govt. of India
The Apex Court in Indra Sawhney’s case at para-15 at page-429 has upheld the impugned memo as follows :-
(15) The impugned Office Memorandum dated 13th August1990 is held valid and enforceable. So there is no legal impediment in immediately enforcing and implementing this first Office Memorandum of 1990.
The 9 Judge Bench by a 6:3 decision, upheld the validity, constitutionality and enforceablity of the impugned Office Memorandum as follows :-
862. The Office Memorandum dated August 13, 1990 impugned in these writ petitions is accordingly held valid and enforceable subject to the exclusion of the socially advanced members/sections from the notified ‘Other Backward Classes’, as explained in para 861 (b).”
13. Now keeping in mind the above points, with reference to the present issue, let us see the ratio of the judgment how para 2 (iii) of the Office Memorandum dated 13.08.1990 providing method of fitting candidates belonging to Socially and Educationally Backward Classes recruited on the basis of merit in an open competition was explained and upheld.
When the Mandal Commission Report was the subject matter of issue before the 9 Judge Bench of the Supreme Court in Indra Sawhney’s case (supra), para 2 (iii) of the Office Memorandum of the Government of India, dated 13th Aug., 1990, as extracted supra, was discussed in detail. As per the ultimate conclusion reached in respect of Para 2 (iii) of the Office Memorandum dated 13th Aug., 1990, it has been finally held that a candidate from Socially and Educationally Backward Classes, if selected in the open competition field on the basis of his own merit, he will not be counted against the quota reserved for SC and he will be treated as open competition candidate only. Even the final conclusion at Para-862 upheld the entire office memorandum dated 13th Aug., 1990 impugned in the writ petition by clearly holding that the office memorandum is valid and enforceable subject to the exclusion of the socially advanced members from the notified ‘Other Backward Classes’ as explained in Para-861 (b).
Subsequently, the same issue once again became the subject matter of issue before another Constitution Bench in the case of R.K.Sabharwal & Ors. – Vs State of Pubjab & Ors. (1995 (2) SCC 745), wherein the Constitution Bench, in para-4, held as follows :-
“4. When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16(4) of the Constitution of India permits the State Government to make any provision for the 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. It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a Backward Class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class. The fact that considerable number of members of a Backward Class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/rules providing certain percentage of reservations for the Backward Classes are operative the same have to be followed.”
Again the same issue cropped up for consideration before a Division Bench of the Apex Court in Union of India & Ors. Vs Virpal Singh Chauhan (1995 (6) SCC 684). In para-29 of the abovesaid judgment, the issue was made further clear as follows :-
“29. * * * * *
(i) Once the number of posts reserved for being filled by reserved category candidates in a cadre, category or grade (unit for application of rule of reservation) are filled by the operation of roster, the object of rule of reservation should be deemed to have been achieved and thereafter the roster cannot be followed except to the extent indicated in para 5 of R.K. Sabharwal. While determining the said number, the candidates belonging to the reserved category but selected/promoted on their own merit (and not by virtue of rule of reservation) shall not be counted as reserved category candidates.” (Emphasis supplied).
Even in a latest judgment of the Apex Court reported in 2010 INDLAW SC 33 (Jitendra Kumar Singh And Another Vs. State of Uttar Pradesh And Others), held in para 42 as follows:_
“42. These observations make it clear that if a reserved category candidate gets selected on the basis of merit, he cannot be treated as a reserved candidate. In the present case, the concessions availed of by the reserved category candidates in age relaxation and fee concession had no relevance to the determination of the inter se merit on the basis of the final written test and interview. The ratio of the aforesaid judgment in fact permits reserved category candidates to be included in the General Category Candidates on the basis of merit.”
14. Therefore, the final command given by the Hon’ble Apex Court in Indra Sawhney’s case (supra) has been consistently followed with more clarity in the subsequent judgments in R.K.Sabharwal’s case (supra) and has been further reiterated in Virpal Singh Chauhan’s case (supra). Hence, the issue raised by the petitioner that once a candidate belonging to the reserved category is selected on his own merit, not by virtue of rule of reservation, shall not be counted as a reserved category candidate has been followed by the respondents 1 and 2 herein also. The respondents 1 and 2 have to select 26 candidates, for which the distribution of vacancies is given as under:
GT – 31% = 7 (GT G-5, GT W-2)
BC – 30% = 7 (BC – G-5, BC – W-2)
(30% consist of 23% for BC-Hindu, 3.5% for BC-Muslim
and 3.5% for BC-Christians)
BC-Muslim Minority – 1% = 1 (BC (M) G-1)
MBC/DC – 20% = 5 (MBC/DC G-3, MBC/DC W-2)
SCH – 18% = 6 (SC G-4, SC W-2)
Total – 100% = 26
In the above said 26 vacancies, by applying 31% for GT, 30% for BC, 1% for BC Muslims, 20% for MBC and 18% for SC, the selection has been properly done and fitment of all these selected candidates have been properly placed in the respective category. In my considered view, the respondents 1 and 2 have followed the above said rulings correctly. Therefore, the writ petition does not stand to reason and accordingly, the same is dismissed. No Costs. Consequently, connected MP is closed.
26.02.2010
Index : Yes / No
Internet : Yes / No
KMK/GLN
To
1. The Secretary
Tamil Nadu Public Service Commission
Omanthoorar Govt. Estate
Anna Salai, Chennai 2.
2. The Controller of Examinations
Tamil Nadu Public Service Commission
Omanthoorar Govt. Estate
Anna Salai, Chennai 2.
3. The Principal Secretary to Govt.
Dept. of Health & Family Welfare (L-2)
Secretariat, Fort St. George
Chennai.
T.RAJA, J.
KMK/GLN
PRE-DELIVERY ORDER
IN
W.P.NO.9310 OF 2009
Pronounced on
26 .02.2010