IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.02.2010 CORAM: THE HONBLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.23394/2009 & M.P.No.1.2009 Selvi Periyanayagi ... Petitioner -vs- 1.The Government of Tamil Nadu, Represented by its Secretary to Government, Personal & Administration Reforms Department, Fort St. George, Chennai 600 009. 2.Tamilnadu Public Service Commission, Represented by its Secretary, Chennai 600 002. ... Respondents Prayer: The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Declaration to declare that the denial of appointing the petitioner for the post of Typist on the strength of her precisions selection for appointment by direct recruitment in the Tamil Nadu Ministerial/Tamilnadu Secretariat Service, Tamil Nadu Judicial Ministerial Service for the year 2006-07 including in Group IV Service under Backward Class category on flimsy ground that she had not enclosed community certificate along with the application as null and void illegal and invalid despite mentioning of the same in the application form and after processing of the application subjecting the petitioner in all the selection processes and declaring her passed scoring high marks and acceptance of community certificate thereafter comparing with the original assuring for appointment on par with similar nature of appointees. For Petitioner :Mr.A.Amal Raj and A.Ganapatheeswaran For Respondents :Mr.K.Surendra Nath O R D E R
The prayer in the writ petition is for a writ of declaration to declare that the denial of appointing the petitioner for the post of Typist in the Tamil Nadu Ministerial/Tamilnadu Secretariat Service, and Tamil Nadu Judicial Ministerial Service for the year 2006-07 is illegal and invalid.
2. The case of the petitioner is that she obtained SSLC qualification in April 1992, thereafter completed Typewriting Junior and Senior Grade examinations in both Tamil and English during July 1996 and January 1997 respectively and registered her name with the District Employment Office, Tuticorin on 11.09.1997. The petitioner completed her higher secondary examination in March 2002. The petitioner applied for the post of typist, pursuant to the notification issued by the second respondent for the year 2006-2007. The petitioner is stated to have enclosed all the certificates, which are required except the community certificate, but however, she had mentioned in the application form that she belonged to a backward community. The petitioner appeared for the written examination on 27.01.2008 and she was declared passed and provisionally selected for the post of typist under BC category. Thereafter, the second respondent issued a call letter dated 12.11.2008, calling upon the petitioner to appear for certificate verification on 04.12.2008. The petitioner accordingly appeared on 04.12.2008 and produced all certificates including the community certificate, which was issued to her by the Revenue Authorities on 22.09.2008. In spite of the same, she was not issued with the order of appointment and therefore, the petitioner is before this Court by way of the present writ petition.
3. In the affidavit filed in support of the writ petition, the petitioner would contend that she is living below the poverty line and she is unmarried and aged 32 years and her mother is no more and her father is bed ridden with kidney ailment and poverty was also one of the reasons for delay in applying for a community certificate and the Village Administrative Officer, Servaikaran Madam refused to issue certificate for obvious reasons and questioned her as to why she requires a community certificate at the age of 32 years. Ultimately she was able to secure such certificate only on 22.09.2008 and promptly produced the same at the time of certificate verification. Therefore, it is contended that the non selection is arbitrary. It is further contended that having received all the certificates including the community certificate on 04.12.2008 and also after having obtained the order of preference of the department where the petitioner would like to work, the respondents are estopped from denying appointment to the petitioner.
4. Mr. A. Amal Raj, learned counsel appearing for the petitioner after reiterating the contentions raised in the affidavit filed in support of the writ petition would contend that the petitioner ought not to have denied appointment, more so when she has produced the certificate at the time of verification. The learned counsel would submit that there is difference between the fact that the petitioner is a backward community candidate from that of submissions of proof about the said fact within the date required. By relying upon the decision of the Hon’ble Supreme Court in Dolly Chhanda Vs. Chairman , Jee and others – 2005 9 SCC 779, the learned counsel would submit that the respondents are entitled to grant some relaxation in matter of submission of proof of possession of the petitioner’s communal status. The learned counsel also placed reliance on the decision of this Court in C.Stella Mary Vs. TNSPC and another 2009 6 MLJ 1211 and the unreported Judgment of the Hon’ble Division Bench of the Madurai Bench of this Court in W.A.(MD).No.585 of 2009 dated 11.11.2009.
5. Per contra, Mr.K.Surendra Nath, learned counsel appearing for the TNPSC would submit that the list of provisionally selected candidates to the post of typist was published on 08.11.2009 and the petitioner is one among the candidates provisionally selected for the said post. Though, she claimed to be backward community, she did not enclose the community certificate in support of her claim and did not shade Column No. 25(6) of the OMR application form. Based on the marks secured by her in the competitive examination and based on the claim made by her that she is a BC candidate, she was provisionally selected as she has secured 232.50 marks. The petitioner was called for certificate verification on 04.12.2008 and at that time, she has produced the community certificate issued by the Zonal Deputy Tahsildar, Tuticorin on 22.09.2008 and since, the certificate was produced after the last date of receipt of application by the TNPSC that is 14.12.2007, she cannot be considered as a backward class candidate and cut-off mark of general turn (G) is 241.50 and for general turn women is 235.50 and therefore the petitioner was not considered for selection.
6. Thus, the only question which arises for consideration is as to whether TNPSC are justified in not taking into consideration the community certificate produced by the petitioner on 04.12.2009 to prove her communal status after she has been provisionally selected as typist in the backward community category. The application submitted by the petitioner was processed and she was permitted to appear for written examination on 27.01.2008 and was also declared passed. Based on the results of the written examination by considering her candidature as a BC category candidate, she was provisionally selected to the post of typist. This provisional selection is now sought to be denied to the petitioner on the ground that she did not enclose the community certificate. One crucial fact to be taken note of is that the community certificate came to be issued by the Zonal Deputy Tahsildar, Tuticorin only on 22.09.2008. The provisional list of selected candidates came to be published on 08.12.2008 and the call letter for certificate verification issued by the TNPSC is dated 12.11.2008, calling upon the petitioner to appear for certificate verification on 04.12.2008. Therefore, the earliest point of time by which the petitioner could produce the certificate was the date of certificate verification, since only on 22.09.2008, the community certificate was issued. As admitted by the TNPSC, the petitioner produced her original certificate on 04.12.2008.
7. Therefore, it is not a case, where the petitioner was in possession of her community certificate much earlier and failed to enclose a copy of the same at the time of submitting her application, but the case of the petitioner is that the community certificate itself was issued much later, only on 22.09.2008. The petitioner has pleaded certain reasons in her affidavit filed in support of the writ petition about her financial condition, that she is an unmarried women with sick father, who is bed ridden and her mother is no more and certain allegation have also been made against the revenue officials. Therefore, the delay in obtaining the issuance of the community certificate from the revenue authorities cannot be attributed to the petitioner. An identical issue came up for consideration before the Hon’ble Division Bench of the Madurai Bench of this Court in W.A.(MD).No.585 of 2009, The Secretary, TNPSC Vs. M.Chitra and another. The appeal was filed by the TNPSC against the order of a learned Single Judge in W.P.No.6252/2008 dated 06.08.2008. The facts of the said case was also a case relating to non production of community certificate. In the said case also the candidate was provisionally selected under ST category and even during the certificate verification done by TNPSC, she was not able to produce the community certificate, since the enquiry regarding her communal status was pending. Ultimately, only after a period of one month after the date of certificate verification, the community certificate was issued to the said candidate, but was not in the prescribed format. In spite of producing such certificate the TNPSC rejected her candidature on the same ground as that of the present case. The writ petition filed against the such order came to be allowed by the learned Single Judge by order dated 06.08.2008 against, which TNPSC preferred in W.A.(MD).No.585/2009, the Hon’ble Division Bench while examining the purposes for which certificates are to be produced and the kind of certificates were analyzed held as follows:-
“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 requied 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 certificate, 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 difference 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, if would meet the requirements.”
8. After rendering such finding ultimately the Hon’ble Division Bench dismissed the writ appeal filed by TNPSC. In my view the decision in Writ Appeal No. 585 of 2009 is squarely applicable to the facts and circumstances of the present case and therefore, I am inclined to follow the same.
9. In fact in the present case, the petitioner has produced the community certificate at the first earliest opportunity available to her after she was furnished with the same, the relevant dates being, the community certificate was issued on 22.09.2008, the provisional list of the selected candidates was published on 08.11.2008 and the petitioner was called upon to appear for the certificate verification on 04.12.2008 and on that date, she has produced the community certificate. Therefore, the petitioner is entitled to succeed in the writ petition and accordingly, there will be a direction to the respondents to consider and select the petitioner in the post of typist based on her provisional selection as published in the provisional select list dated 08.11.2008 by treating her, as a backward community candidate and issue appropriate posting orders within a period of two weeks from the date of receipt of a copy of this Court.
10. In the result, the Writ Petition is disposed of on the above terms. Connected miscellaneous petition is closed. No costs.
16.02.2010
Index :Yes/No
Internet:Yes/No
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T.S.SIVAGNANAM, J.
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To
1.The Government of Tamil Nadu,
Represented by its
Secretary to Government,
Personal & Administration Reforms Department,
Fort St. George,
Chennai 600 009.
2.Tamilnadu Public Service Commission,
Represented by its Secretary,
Chennai 600 002.
Pre-Delivery Order in
W.P.No.23394/2009
16.02.2010