{"id":141029,"date":"2009-11-11T00:00:00","date_gmt":"2009-11-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-secretary-vs-m-chitra-on-11-november-2009-2"},"modified":"2015-06-30T02:11:07","modified_gmt":"2015-06-29T20:41:07","slug":"the-secretary-vs-m-chitra-on-11-november-2009-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-secretary-vs-m-chitra-on-11-november-2009-2","title":{"rendered":"The Secretary vs M.Chitra on 11 November, 2009"},"content":{"rendered":"
Madras High Court<\/div>\n
The Secretary vs M.Chitra on 11 November, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 11\/11\/2009\n\nCORAM\nTHE HONOURABLE MR.JUSTICE D.MURUGESAN\nAND\nTHE HONOURABLE MR.JUSTICE S.NAGAMUTHU\n\nW.A.(MD).No.585 of 2009\nand M.P.No.2 of 2009\n\nThe Secretary,\nTamil Nadu Public Service Commission,\nAnna Salai, Chennai 600 002.\n\t \t\t\t\t... Appellant\n\t\t\t\nVs.\n\n1.M.Chitra\n2.The Revenue Divisional Officer,\n  Cheranmahadevi,\n  Tirunelveli District.\n\t\t\t\t\t... Respondents\n\nPRAYER\n\nWrit Appeal is filed under Section 15 of the Letters Patent against the\nOrder of HER LORDSHIP MS.JUSTICE K.SUGUNA in the exercise of the special\noriginal jurisdiction of this Hon'ble Court in W.P.No.6252 of 2008 and M.P.Nos.1\nand 2 of 2008, dated 06.08.2008.\n\t\t\n!For Appellant\t\t... Mr.S.C.Herold Singh\n\t\t\t    Government Advocate\n^For Respondent 1\t... Mr.M.Sureshkumar\n\n:JUDGMENT\n<\/pre>\n
***********
\n  [Judgment of the Court was delivered by S.NAGAMUTHU, J]<\/p>\n
\tA stand, too technical, taken by the appellant to deprive the first
\nrespondent of his rightful claim for being considered for a Governmental Post,
\nnegatived in the Writ Petition is canvassed again in this Writ Appeal.\n<\/p>\n
\t2. The appellant\/Tamil Nadu Public Service Commission called for
\napplications from eligible candidates for Group IV Service [for the posts of
\nVillage Administrative Officers] during the year 2007. Being eligible for the
\nsaid post, the first respondent duly submitted her application. Indisputably,
\nshe belongs to Kattunayakan Community, which is a Scheduled Tribe. But the first
\nrespondent could not submit her Community Certificate obtained from the
\ncompetent authority along with her application. However, her application was
\nentertained and she was allowed to participate in the written examination. Since
\nshe had secured required cut off marks, she was provisionally selected and
\ncalled for certificate verification.\n<\/p>\n
\t3. As a matter of fact, the first respondent made application in the year
\n1997 itself to the competent authority viz, the Revenue Divisional Officer,
\nCheranmahadevi, for issuance of Community Certificate. However, such certificate
\nwas not issued in time and that is the reason why, the first respondent could
\nnot submit her Community Certificate along with her application.\n<\/p>\n
\t4. Even on 30.10.2007, when she appeared for certificate verification
\nbefore the appellant, she could not produce her Community Certificate, since her
\nrequest for issuance of Community Certificate was still pending with the Revenue
\nDivisional Officer. She explained to the appellant about the peculiar
\ncircumstances in which she had been placed. In the meanwhile, the second
\nrespondent\/the District Collector, sent a letter dated 06.11.2007  informing the
\nappellant\/Service Commission that the request of the first respondent for
\nCommunity Certificate was under consideration. At last, she got Community
\nCertificate on 21.11.2007. But, the said Community Certificate was not in the
\nprescribed format as prescribed by the appellant. However, along with a written
\nrepresentation, she submitted the same to the appellant. Despite the same, the
\nfirst respondent was not appointed and instead, by letter dated 11.06.2008, she
\nwas informed by the appellant that the provisional selection was cancelled, as
\nshe had not produced the community Certificate along with her application.
\nChallenging the same, the first respondent filed the Writ Petition, which was
\nallowed by a learned Single Judge by order dated 06.08.2008. Challenging the
\nsame, the appellant\/Tamil Nadu Public Service Commission has come forward with
\nthe present Writ Appeal.\n<\/p>\n
\t5. In this Writ Appeal, it is contended that as per the instructions to
\nthe candidates and information brochure issued by the appellant, the candidates
\nwere required to submit the copies of the necessary documents along with
\napplications to prove the qualification, age, experience, community etc and it
\nwas made clear that in case of failure to produce the same, the applications
\nshall be summarily rejected. Based on the above clauses, it is contended, since
\nin the given case, the first respondent had failed to produce the Communicate
\nCertificate in time, her candidature was rejected. Reliance is placed on
\nDr.M.Vennila v. Tamil Nadu Public Service Commission<\/a> reported in 2006 (3) CTC
\n449, wherein a Division Bench of this Court has held that non-production of
\nnecessary certificates along with application within the cut off date shall
\ndisentitle the candidate from being considered. Therefore, according to the
\nappellant, the learned Single Judge ought to have dismissed the Writ Petition.\n<\/p>\n
\t6. We have heard the learned Government Advocate appearing for the
\nappellant, learned counsel appearing for the first respondent and perused the
\nrecords carefully.\n<\/p>\n
\t7. There can be no controversy that the instructions to candidates and the
\nbrochure bind the candidates and the Service Commission, according to which, the
\ncandidates are bound to produce all the necessary documents\/certificates along
\nwith the application. In general, the application shall be rejected for non-
\nproduction of such certificates\/documents. But, in our considered opinion, an
\nexception can be carved out to the same. At this juncture, it would be
\nworthwhile to clarify that all certificates, which are required to be produced
\nalong with application, cannot be treated equally. There are some certificates,
\nlike certificates relating to the basic qualification etc., which are essential,
\nwithout which the applications cannot be entertained at all. On the other hand,
\nthere are certain other certificates, like Community Certificate, certificates
\nrelating to special consideration, like sports certificate, NCC, NSS
\nCertificates, etc., which are not essential for entertaining the application of
\nthe candidates. So, there can be no controversy that non-production of the
\nformer kind of certificates within the cut off date, shall be a ground to reject
\nthe application summarily, as mentioned in the instructions to the candidates
\nand information brochure, because, they relate to the essential qualifications
\nfor making application. To put it otherwise, unless the Service Commission is
\nsatisfied about the eligibility criteria based on the said certificates, it
\ncannot entertain the applications, and therefore, the applications in such an
\nevent are to be necessarily rejected.\n<\/p>\n
\t8. Insofar as the later kind of certificates are concerned, for
\nentertaining the application, these certificates, which relate only to special
\nqualifications or consideration, are not that much material. Even in the absence
\nof these certificates, the applications are to be entertained and when the
\nquestion of considering the special qualifications or status arises, it would be
\nsuffice, if the certificates are made available to the Commission. For example,
\nif a candidate claims that he\/she is entitled for being considered under the
\nquota reserved for Schedule Tribe Community and if the required Community
\nCertificate is not produced, his\/her application cannot be rejected, but instead
\nhe\/she has to be treated under the open quota. For any reason, if such a
\nCommunity Certificate is produced before the date of finalization of the
\nprovisional selection list based on the cut off marks secured in the written
\nexamination, in our opinion, the same would be suffice.\n<\/p>\n
\t9. It is needless to point out that different cut off marks are,
\ngenerally, prescribed for different communities, such as Backward Class, Most
\nBackward Class, Scheduled Caste and Scheduled Tribe. The Community Certificate
\nis required only to find out whether a candidate is eligible for being
\nconsidered under the reserved quota and not for any other purpose. Any other
\napproach would result in deprivation of valuable right of a candidate for being
\nconsidered against the seats reserved for which she\/he would be otherwise
\nentitled.  Therefore, in our considered opinion, if the Community Certificate is
\nproduced before the cut off mark is finalized to call the candidates either for
\ninterview or for certificate verification, it would meet the requirements.\n<\/p>\n
\t10. Much reliance has been made on the Judgment of this Court in
\nDr.Vennila’s case. In our opinion, the principles stated therein cannot be made
\napplicable to the facts of the present case, as the facts are distinguishable.
\nIn the  above case, the Division Bench had no occasion, as it was not argued
\nbefore the Division Bench, to distinguish the essential certificates, which are
\nrequired for entertaining the applications and the certificates, which are only
\nfor the purpose of claiming special status or privilege like reservation.
\nTherefore, the view taken by the Division Bench in Dr.Vennila’s case does not
\ncome to the rescue of the appellant.\n<\/p>\n
\t11. The learned counsel appearing for the first respondent has placed
\nreliance on a Judgment of this Court in C.Stella Mary v. TNPSC reported in 2009
\n(6) MLJ 1211, [of which one of us is the author JUSTICE S.NAGAMUTHU], wherein
\ndelayed production of a destitute widow certificate was considered. Relying on
\nthe two Judgments of the Hon’ble Supreme Court in Charles K.Skaria and others v.
\nDr.C.Mathew and others<\/a> reported in AIR 1980 SC 1230:1980 2 SCC 752, and Dolly
\nChhanda V.Chairman, Jee reported in (2005) 9 SCC 779, it has been held that non-
\nproduction of the certificates along with application cannot be a ground to
\nreject the application. In paragraph 20 of the said Judgment in Charles
\nK.Skaria’s case, it has been held as follows:-\n<\/p>\n
\t “20. There is nothing unreasonable or arbitrary in adding 10 marks for
\nholders of a diploma.  But to earn these extra 10 marks, the diploma must be
\nobtained at least on or before the last date for application, not later.  Proof
\nof having obtained a diploma is different from the factum of having got it.  Has
\nthe candidate, in fact, secured a diploma before the final date of application
\nfor admission to the degree course? That is the primary question.  It is prudent
\nto produce evidence of the diploma along with the application, but that is
\nsecondary.  Relaxation of the date on the first is illegal, not so on the
\nsecond.  Academic excellence, through a diploma for which extra mark is granted,
\ncannot be denuded because proof is produced only later, yet before the date of
\nactual selection.  The emphasis is on the diploma; the proof thereof subserves
\nthe factum of possession of the diploma and is not an independent factor.  The
\nprospectus does say :\n<\/p>\n
\t(4)(b) 10% to diploma holders in the selection of candidates to M.S., and
\nM.D., courses in the respective subjects or sub-specialities.\n<\/p>\n
\t13. Certificates to be produced:- In all cases true copies of the
\nfollowing documents have to be produced:-\n<\/p>\n
\t(K) Any other certificates required along with the application.
\n\tThis composite statement cannot be read formalistic fashion.  Mode of
\nproof is geared to the goal of the qualification in question.  It is subversive
\nof sound interpretation and realistic decoding of the prescription to telescope
\nthe two and make both mandatory in point of time.  What is essential is the
\npossession of a diploma before the given date; what is ancillary is the safe
\nmode of proof of the qualification.  To confuse between a fact and its proof is
\nblurred perspicacity.  To make mandatory the date of acquiring the additional
\nqualification before the last date for application makes sense.  But if it is
\nunshakably shown that the qualification has been acquired before the relevant
\ndate, as is the case here, to invalidate this merit factor because proof, though
\nindubitable, was adduced a few days later but before the selection or in a
\nmanner not mentioned in the prospectus, but still above-board, is to make
\nprocedure not the handmaid but the mistress and form not as subservient to
\nsubstance but as superior to the essence”.\n<\/p>\n
\t12. In the second case, in Dolly Chhanda v. Chariman, Jee and others<\/a>
\nreported in AIR 2004 SC 5043:(2005) 9 SCC 779:(2004) 4 MLJ 111, in paragraph 9,
\nthe Hon’ble Supreme Court has held as follows:-\n<\/p>\n
\t9. The appellant undoubtedly belonged to reserved MI category.  She comes
\nfrom a very humble background, her father was only a Naik in the armed forces.
\nHe may not have noticed the mistake which had been committed by the Zilla Sainik
\nBoard while issuing the first certificate dated 29.06.2003.  But it does not
\nmean that the appellant should be denied her due when she produced a correct
\ncertificate at the stage of second counselling.  Those who secured rank lower
\nthan the appellant have already been admitted.  The view taken by the
\nauthorities in denying admission to the appellant is unjust and illegal”.\n<\/p>\n
\t13. After referring to the above two Judgments of the Hon’ble Supreme
\nCourt, in paragraphs 15 and 16 of Stella Mary’s case, it is held as follows:-
\n\t“15. Applying the ratio laid down in the above judgments to the facts of
\nthe case, one can be sure that it is not appropriate for the respondent to stick
\non to a technicality   which is not only merely procedural but it defeats the
\nvery object sought to be achieved.  As held by the Hon’ble Supreme court, what
\nis crucial is as to whether as on the last date for submission of application
\nthe petitioner was a destitute widow or not.  Yes, is the incontrovertible
\nanswer to the said question.\n<\/p>\n
\t16. Admittedly, long before the written examination, the petitioner
\nsubmitted a copy of the destitute widow certificate.  Therefore, having regard
\nto the very object of reservation made for destitute widows, and having regard
\nto the ratio laid down by the Hon’ble Supreme Court, in my considered opinion,
\nin the case on hand, the reason stated in the impugned order for rejecting the
\nclaim of the petitioner for being considered under the reserved quota for
\ndestitute widows is not at all sustainable and therefore, the same is liable to
\nbe quashed”.\n<\/p>\n
\t14. At this juncture, it would be worthwhile to refer to a Judgment of a
\nDivision Bench of this Court in Premanand v. The State of Tamil Nadu<\/a> reported in
\n1995 2 MLJ 325, wherein, in paragraph 5, the Division Bench held as follows:-
\n\t“It must be pointed out that clause 13.5 only prescribed the procedure in
\norder to eliminate persons who do not belong to that category, to take undue
\nadvantage. As long as it is not in dispute that the petitioner belongs to that
\ncategory of children born of intercaste marriage between S.C\/S.T and Forward
\nCommunity and in addition to this, he was able to produce the certificate before
\nthe application was scrutinized for admission, rejection of such application
\namounted to giving greater value to the procedure than to the substantive right.
\nThe procedure is intended facilitate enforcement of substantive right and not to
\ndefeat the substantive right. Procedure is hand-maid of justice and to defeat
\njustice. Therefore, the Selection Committee acted arbitrarily when it rejected
\nthe application, even though it had before it the certificate produced by the
\npetitioner to the effect that he satisfied the category of children born of
\ninter-caste marriage between S.C.\/S.T and Forward Community. As long as the
\napplication was filed in time and the applicant was able to satisfy the
\nrequirement of production of certificate from the appropriate authority, before
\nhis application was considered for selection, it was not at all open to the
\nSelection Committee to refuse to consider the application only on the ground
\nthat such a certificate had not been produced along with the application”.\n<\/p>\n
\t15. We are in full agreement with the said view taken by the Division
\nBench of this Court. Subsequently, the Judgments in Dr.M.Vennila’s case and
\nPremanand’s came to be considered in a batch of Writ of Petitions before the
\nFirst Bench of this Court in Dr.A.Rajapandian v. State of Tamil Nadu<\/a> reported in
\n2006 (5) CTC 529, [presided over by the Hon’ble The Chief Justice A.P.SHAH],
\nwherein the Division Bench has discussed, as we have done here, the Judgment in
\nDr.M.Vennila’s case and Premanand’s case and approved the view taken in
\nPremanand’s case.\n<\/p>\n
\t16. As we have already stated, the community Certificate, though submitted
\nbelatedly, but, before the preparation of the provisional selection list, would
\nbe suffice. The principle stated by the Hon’ble Supreme Court in the above two
\ncases followed in Stella Mary’s case, and the Division Bench Judgments cited
\nsupra needs to be applied to the present case.\n<\/p>\n
\t17. Reservation in Governmental jobs and educational institutions has been
\nmade with a laudable object of uplifting the downtrodden people like Backward
\nClass, Most Backward Class, Scheduled Caste and Scheduled Tribe. In this regard,
\nwe do not propose to list out all those Judgments relating to reservation
\nincluding Mandal Commission case [Indra Sawhney vs. Union of India<\/a> reported in
\n1992 Supp (3) SCC 217 of the Hon’ble Supreme Court, as the same would only add
\nto the length of this Judgment.  Suffice it for us to say, while looking into
\nthe facts of the case, the very object of providing such reservation cannot be
\nlost sight of. Therefore, we are of the opinion that on a too technical ground
\nrelating to mere procedure, like the one which is raised by the appellant in the
\ncase on hand, the rightful claim of a person, who needs upliftment by the
\nbenefit of reservation cannot be deprived of. What all that is necessary is
\nwhether such a person really belongs to the community, which gets the benefit of
\nreservation.\n<\/p>\n
\t18. Yet another factual aspect also needs consideration. It is not the
\ncase as though the first respondent was recalcitrant in not making any attempt
\nto get the Community Certificate from the competent authority. It is also not
\nthe case as though the first respondent is a casteless woman. After all, she
\ndoes not live in a casteless society. By birth, she has acquired a caste known
\nas “Kattunayakan Community”, which is a Scheduled Tribe Community. Indisputably,
\nshe made application to the Revenue Divisional Officer, who is the competent
\nauthority in this regard for issuance of Community Certificate in the year 1997.
\nThough her immediate elder brother was issued with such a Community Certificate,
\nfor the reasons best known to the second respondent, the urgency of the second
\nrespondent to submit the Community Certificate for employment fell into the deaf
\nears and the matter was kept pending for a decade. Several representations,
\nseveral personal meetings and several communications made by the first
\nrespondent to the second respondent as well as to the higher authorities were of
\nno avail.\n<\/p>\n
\t19. It could also be seen from the records that the Revenue Divisional
\nOfficer rejected her claim, and thereafter, the District Collector had to
\nintervene in the matter and at his behest, and after a thorough enquiry,
\nundoubtedly, it was concluded that the first respondent also belongs to
\nKattunayakan community, to which her brother also belongs to, and thereafter,
\nthe Community Certificate was issued to the first respondent. Because of the
\nlethargic attitude of the Revenue Authorities to consider the request of the
\nfirst respondent for issuance of Community Certificate in time, she cannot be
\nmade to suffer at all at the hands of the appellant. As we have already stated,
\nwhen ultimately it has been concluded that the first respondent belongs to the
\nScheduled Tribe Community, we hardly find any reason to reject her claim for
\nappointment under the quota for the said community.\n<\/p>\n
\t20. It is true that the first respondent did not produce the Community
\nCertificate before the provisional list of selected candidates was finalized. On
\nthis score, in normal course, applying the principles stated above, this Court
\nwould have held that the claim of the first respondent for consideration under
\nthe reserved quota for Scheduled Tribe should be rejected. But, we do not
\npropose to do so, for the simple reason, as we have elaborately narrated above
\nthat the first respondent cannot be blamed for the belated issuance of Community
\nCertificate. As we have already stated, the request of the first respondent for
\nissuance of Community Certificate was pending before the Revenue Divisional
\nOfficer for more than a decade. It is only in these special and peculiar
\ncircumstances, we are inclined to sustain the Order of the learned Single Judge.\n<\/p>\n
\t21. In view of all the above, the Writ Appeal fails and the same is
\ndismissed. Consequently, connected Miscellaneous Petition is also dismissed.\n<\/p>\n
NB<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Secretary vs M.Chitra on 11 November, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-141029","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Secretary vs M.Chitra on 11 November, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-secretary-vs-m-chitra-on-11-november-2009-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Secretary vs M.Chitra on 11 November, 2009 - 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