{"id":51052,"date":"2011-01-28T00:00:00","date_gmt":"2011-01-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-p-a-nallamohamed-vs-the-director-department-of-on-28-january-2011"},"modified":"2017-12-17T16:09:15","modified_gmt":"2017-12-17T10:39:15","slug":"k-p-a-nallamohamed-vs-the-director-department-of-on-28-january-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-p-a-nallamohamed-vs-the-director-department-of-on-28-january-2011","title":{"rendered":"K.P.A.Nallamohamed vs The Director Department Of … on 28 January, 2011"},"content":{"rendered":"
Madras High Court<\/div>\n
K.P.A.Nallamohamed vs The Director Department Of … on 28 January, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 28\/01\/2011\n\nCORAM\nTHE HONOURABLE MR.JUSTICE K.CHANDRU\n\nW.P.(MD)NO.13161 of 2009\nand\nM.P.(MD)NO.1 OF 2009\n\nK.P.A.Nallamohamed\t\t\t\t..  Petitioner\n\nVs.\n\n1.The Director Department of Archaeology,\n   Tamil Valarchi Valagam,\n   Halls Road,\n   Egmore, Chennai-600 008.\n2.The Secretary,\n   Tamil Nadu Public Service Commission,\n   Omanthoorar Government Estate,\n   Chennai-600 002.\t\t\t\t..  Respondents\n\n\tThis writ petition has been preferred under Article 226 of the\nConstitution of India praying for the issue of a writ of declaration to declare\nthe examination conducted by the second respondent for the post of Curator dated\n29.11.2009 as unconstitutional and ultravires, violation of Articles 16 and 21\nof the Constitution and consequently to direct the respondents to conduct fresh\nexamination for the same post by allowing the petitioner to participate.\n\n!For Petitioner ... Mr.K.K.Kannan\n^For Respondents... Mr.S.C.Herold Singh, GA\n\n- - - -\n\n:ORDER\n<\/pre>\n
\tThe question that arises for consideration in this writ petition is
\nwhether an Indian Citizen professing Islam as his Religion can be disqualified
\nfor being considered for a post in a public employment?\n<\/p>\n
\t2.The posts of Curator, Epigraphist, Archaeological Officer come under the
\nArchaeological department covered by the Tamil Nadu General Subordinate
\nServices. The petitioner claims that he was fully qualified to hold the post. He
\nhad passed M.A. Tamil, M.A. History, P.G.Diploma in Epigraphy and Archaeology
\nand P.G. Diploma in Temple Arts. In his P.G. Diploma in Epigraphy and
\nArchaeology conducted by the Department of Archaeology, Government of Tamil Nadu
\nin the year 1993-94, he came out in first class and stood first rank. The
\npetitioner is a Muslim by religion. The second respondent Tamil Nadu Public
\nService Commission (TNPSC) had issued an advertisement No.216 calling for
\napplications for the posts of Epigraphist, Curator, Archaeological Officer and
\nJunior Epigraphist. In respect of Curator, five vacancies were notified. It was
\nstated that the persons professing the Hindu Religion alone are eligible to
\napply for the posts of Epigraphist, Archaeological Officer and Junior
\nEpigraphist. There was no reference to any criteria regarding Religion in
\nrespect of the post of Curator. It was stated that persons who are applying for
\nthe posts will have to undergo a written examination. In the notification in
\nparagraph 3.K, it was stated as follows:\n<\/p>\n
“K.All the concessions \/ relaxations \/ benefits applicable to BC and SC
\ncandidates are also applicable to BC Muslim and SC (Arunthathiyars on
\npreferential basis) candidates respectively.”\n<\/p>\n
\t3.The qualifications for the post of Curator and Epigraphist as found in
\nparagraph 4 of the notification reads as follows:\n<\/p>\n
Sl.No.\n<\/p>\n
Name of the Post
\nQualification
\n1<\/span>
\n2<\/span>
\nEpigraphist (Post code.1838)
\nCurator (Post code.1841)<\/p>\n
1)Second Class Degree of M.A in Archaeology or in Tamil or in Sanskrit or in
\nAncient Indian History of any University or Institution Recognised by the
\nUniversity Grants Commission for the purpose of its grant.\n<\/p>\n
2)A certificate or Diploma in Sanskrit awarded by any one of the Universities
\nRecognised by the University Grants Commission for the purpose of its grant or
\nBharathiya Vidhya Bhawan or Amara Bharathi or Sanskrit Educational Society or
\nDhakshina Bharat Hindu Prachar Sabha or Must be able to read and write
\nSanskrit Texts (printed and manuscrips) give meaning of simple
\nSanskrit poems and prose writings and understand the main impart of
\ninscriptional Sanskrit.\n<\/p>\n
          and
\n     Must have the knowledge of basic principle of Architecture, Iconography,
\nSculpture, etc., based on Vastu sastra, Agama Sastra and Silpa text and also to
\nidentify parts of Temples sculptures and icons from Drawing and Photographs.\n<\/p>\n
\t4.The petitioner had filled in his application including an OMR coding
\nsheet. As against question No.6, he had mentioned his religion as Muslim. As
\nagainst question No.7 with reference to community, he had described himself as a
\nBackward class. However, the respondent TNPSC by the impugned order, dated
\n20.11.2009 had rejected his application stating that the rejection was on the
\nground that he did not profess Hindu Religion. In view of the last minute
\nrejection, the petitioner could not challenge the said order since 27.11.2009,
\n28.11.2009 and 29.11.2009 were holidays for the Court. The examinations were
\nscheduled on 29.11.2009. Hence the petitioner had sent a representation, dated
\n30.11.2009 to the respondents. Thereafter, he filed the writ petition
\nchallenging the rejection of his application.\n<\/p>\n
\t5.The petitioner’s main contention was that even as per the instructions
\nto candidates, there was no requirement for a person to profess Hindu Religion
\nfor the post of Curator.  He submitted that rejection was arbitrary and
\nviolative of Articles 16 and 21 of the Constitution of India.\n<\/p>\n
\t6.When the writ petition came up on 14.12.2009, notice was issued to the
\nrespondents. On notice from this court, the second respondent has filed a
\ncounter affidavit, dated Nil (2010). It is the stand of the respondents that the
\npetitioner had applied for all the four posts. In column No.23 in his OMR
\napplication, he had given preference for the post of Curator. Since only persons
\nprofessing Hindu Religion alone are eligible for the appointment to the posts of
\nEpigraphist, Archaeological Officer and Junior Epigraphist, he was not eligible
\nto be considered for those posts. In respect of Curator post, he did not produce
\nany evidence to show that he has knowledge in Sanskrit as per the qualifications
\nprescribed in the notification. Therefore, it was contended that in terms of his
\nReligion, he was disqualified for being considered for the posts of Epigraphist,
\nArchaeological Officer and Junior Epigraphist and he was not eligible to be
\nconsidered for the post of Curator since he lacked knowledge in Sanskrit.\n<\/p>\n
\t7.Insofar as the stand taken by the respondents in the counter affidavit
\nregarding lack of knowledge in Sanskrit, the same was not indicated as a reason
\nfor  rejection. When the petitioner had stated that he had applied for the post
\nof Curator, he had only mentioned the Code No.1841 as his preference. Therefore,
\nthe respondents ought to have considered his case for the post of Curator, if he
\nis otherwise disqualified for the other three posts in view of the religious
\nrequirement. It is highly condemnable that the second respondent did not even
\ndisclose the actual reason for rejecting the case of the petitioner. Since the
\nrespondents had stated that for the posts of  Epigraphist, Archaeological
\nOfficer and Junior Epigraphist, the holders of office must profess Hindu
\nReligion, they had not indicated as to where from they got the right to
\nprescribe such a qualification. In fact, all the four posts are under the
\nArchaeological department coming under the Tamil Nadu General Subordinate
\nServices.\n<\/p>\n
\t8.Under Article 16(1) of the Constitution of India, it has been guaranteed
\nequality of opportunity for all citizens in the matter relating to employment or
\nappointment to any post under the State. Article 16(2) prohibits any
\ndiscrimination on the ground of religion. Article 16(2) reads as follows:
\n“16(2)No citizen shall, on grounds only of religion, race, caste, sex, descent,
\nplace of birth, residence or any of them, be ineligible for, or discriminated
\nagainst in respect of, any employment or office under the State.”\t(Emphasis
\nadded)\n<\/p>\n
\t9.However, the Supreme Court struck down the then Madras Government’s
\ncommunal G.O reserving posts based on caste and religion such as Muslim and
\nChristians. The pre-constitutional order came to be attacked on the touchstone
\nof Article 16(2) of the Constitution. The Supreme Court held that reservation of
\npost based on either caste or religion is unconstitutional. It is necessary to
\nrefer to the judgment of the Supreme Court in B.Venkataramana Vs. The State of
\nMadras and another reported in AIR 1951 SC 229. The following passage found in
\nparagraph 4 may be usefully reproduced below:\n<\/p>\n
“4….For instance, the petnr. may be far better qualified than a Muslim or a
\nChristian or a Non-Brahmin candidate & if all the posts reserved for those
\ncommunities were open to him, he would be eligible for appointment, as is
\nconceded by the learned Advocate-General of Madras, but, nevertheless, he cannot
\nexpect to get any of those posts reserved for those different categories only
\nbecause he happens to be a Brahmin. His ineligibility for any of the posts
\nreserved for the other communities, although he may have far better
\nqualifications than those possessed by members falling within  those categories,
\nis brought about only because he is a Brahmin & does not belong to any of those
\ncategories. This ineligibility created by the Communal G.O. does not appear to
\nus to be sanctioned by cl.(4) of Art.16 & it is an infringement of the
\nfundamental right guaranteed to the petnr. as an individual citizen under
\nArt.16(1) &(2). The Communal G.O., in our opinion, is repugnant to the
\nprovisions of Art.16 & is as such void & illegal. This, in our opinion, is
\nsufficient to dispose of this appln. & we do not consider it necessary to
\nconsider the effect of Art.14 or 15 of the Constitution on the case of the
\nresps.”\n<\/p>\n
Perhaps to save the reservation for the underprivileged, after the judgment the
\nConstitution of India underwent with its first amendment in the year 1951.\n<\/p>\n
\t10.The Supreme Court subsequently in Triloki Nath Tiku v. State of Jammu
\nand Kashmir<\/a> reported in (1969) 1 SCR 103 took exception to Religion based
\nreservation adopted by the Jammu and Kashmir Government. In paragraph 6 it was
\nheld as follows:\n<\/p>\n
“6…… In effect the State policy which Malik Ghulam Nabi spoke to was a
\npolicy not of reservation of some appointments or posts: it was a scheme of
\ndistribution of all the posts community wise. Distribution of appointments, post
\nor promotions made in implementation of that State policy is contrary to the
\nconstitutional guarantee under Article 16(1) and (2)and is not saved by
\nclause(4).”\n<\/p>\n
\t11.However, an exception to religion being a criteria for appointment is
\nprovided under Article 16(5) which reads as follows:\n<\/p>\n
“16(5)Nothing in this article shall affect the operation of any law which
\nprovides that the incumbent of an office in connection with the affairs of any
\nreligious or denominational institution or any member of the governing body
\nthereof shall be a person professing a particular religion or belonging to a
\nparticular denomination.”\t\t(Emphasis added)<\/p>\n
\t12.In construing Article 16(5), the Supreme Court in S.P. Mittal Vs. Union
\nof India reported in  (1983) 1 SCC 51 in paragraph 8 had observed as follows:
\n“8.Article 16(2) guarantees that no citizen shall, on grounds only of religion,
\nrace, caste, sex, descent, place of birth, residence or any of them, be
\nineligible for, or discriminated against in respect of, any employment or office
\nunder the State. Article 16(5) exempts from the right guaranteed under Article
\n16 the operation of any law which provides that the incumbent of an office in
\nconnection with the affairs of any religious or denominational institution or
\nany member of the governing body thereof shall be a person professing a
\nparticular religion or belonging to a particular denomination.”\n<\/p>\n
\t13.In her separate opinion, Justice Ruma Pal, in the case relating to
\nT.M.A. Pai Foundation v. State of Karnataka<\/a> reported in (2002) 8 SCC 481 had
\nobserved in paragraphs 336, 344, 345 and 346 which is as follows:
\n“336.Under the Indian Constitution there is no such “wall of separation” between
\nthe State and religious institutions. Article 16(5) recognises the validity of
\nlaws relating to management of religious and denominational institutions.
\nArticle 28(2) contemplates the State itself managing educational institutions
\nwherein religious instructions are to be imparted. And among the subjects over
\nwhich both the Union and the States have legislative competence as set out in
\nList III of the Seventh Schedule to the Constitution. Entry 28 are:
\n“Charities and charitable institutions, charitable and religious endowments and
\nreligious institutions.”\t\t\t\t(emphasis supplied)
\n……\n<\/p>\n
344.In the ultimate analysis the Indian Constitution does not unlike the United
\nStates, subscribe to the principle of non-interference of the State in religious
\norganisations but it remains secular in that it strives to respect all religions
\nequally, the equality being understood in its substantive sense as is discussed
\nin the subsequent paragraphs.\n<\/p>\n
Article 30(1) and Article 14\n<\/p>\n
345.”Equality” which has been referred to in the preamble is provided for in a
\ngroup of articles led by Article 14 of the Constitution which says that the
\nState shall not deny to any person equality before the law or the equal
\nprotection of the laws within the territory of India. Although stated in
\nabsolute terms Article 14 proceeds on the premise that such equality of
\ntreatment is required to be given to persons who are equally circumstanced.
\nImplicit in the concept of equality is the concept that persons who are in fact
\nunequally circumstanced cannot be treated on a par. The Constitution has itself
\nprovided for such classification in providing for special or group or class
\nrights. Some of these are in Part III itself [Article 26, Article 29(1) and
\nArticle 30(1)]. Other such articles conferring group rights or making special
\nprovision for a particular class include Articles 336 and 337 where special
\nprovision has been made for the Anglo-Indian community. Further examples are to
\nbe found in Articles 122, 212 and other articles giving immunity from the
\nordinary process of the law to persons holding certain offices. Again Articles
\n371 to 371-H contain special provisions for particular States.\n<\/p>\n
346.The principles of non-discrimination which form another facet of equality
\nare provided for under the Constitution under Articles 15(1), 16(1) and 29(2).
\nThe first two articles are qualified by major exceptions under Articles 15(3)
\nand (4), 16(3), (4), (4-A) and Article 335 by which the Constitution has
\nempowered the executive to enact legislation or otherwise specially provide for
\ncertain classes of citizens. The fundamental principle of equality is not
\ncompromised by these provisions as they are made on a consideration that the
\npersons so “favoured” are unequals to begin with whether socially, economically
\nor politically. Furthermore, the use of the words “any person” in Article 14 in
\nthe context of legislation in general or executive action affecting group rights
\nis construed to mean persons who are similarly situated. The classification of
\nsuch persons for the purposes of testing the differential treatment must, of
\ncourse, be intelligible and reasonable – the reasonableness being determined
\nwith reference to the object for which the action is taken. This is the law
\nwhich has been settled by this Court in a series of decisions, the principle
\nhaving been enunciated as early as in 1950 in Charanjit Lal Chowdhury v. Union
\nof India56.<\/a>”\n<\/p>\n
\t\t\t\t(Emphasis added)\n<\/p>\n
\t14.However, there is no difficulty in the State reserving certain posts
\nfor qualified persons from a particular religion under Article 16(5) if such
\nposts are created in connection with the affairs of a Religion. But, in the
\npresent case, the Department of Archaeology is an independent department and not
\na wing of the Tamil Nadu Hindu Religions and Charitable Endowment Department.
\nEven under the Tamil Nadu Hindu Religions and Charitable Endowments Act, 1959,
\nunder Section 10 only certain posts have been reserved for persons professing
\nHindu Religion. Section 10 may be usefully reproduced below to indicate the
\nnature of the office:\n<\/p>\n
10.Commissioner, etc., to be Hindus.-The Commissioner, [the Additional
\nCommissioner] [every Joint, Deputy or Assistant Commissioners] and every other
\nofficer or servant appointed to carry out the purposes of this Act, by
\nwhomsoever appointed, shall be a person professing the Hindu Religion and shall
\ncease to hold office as such when he ceases to profess that religion.”
\nTherefore, it is doubtful that the respondents can reserve any other posts other
\nthan the posts which have been notified under the Act.\n<\/p>\n
\t15.It is not as if the post of an Epigraphist or an Archaeologist must
\nwork inside an Hindu temple. In a Country like India where there has been
\ncivilization even before the advent of all religions, the work of Epigraphists
\nor Archaeologists cannot be confined to persons professing Hindu religion alone.
\nFurther, all the religions recognised by the Constitution also have similar
\nheritage and antiquity.\n<\/p>\n
\t16.To know the nature of these posts, it is necessary to unravel the true
\nmeaning of these words. The term of “Archaeology” has been defined in “Chambers
\n20th Century Dictionary”, which is as follows:\n<\/p>\n
“the scientific study of human antiquities, usually as discovered by excavation”
\nThe Webster’s New World Dictionary and Thesauruss defined the term as follows:
\n“the scientific study of the life and culture of past, esp. ancient, peoples, as
\nby excavation of ancient cities, artifacts, etc. ”\n<\/p>\n
\t17.The term “Epigraphy” is defined in  Webster’s New World Dictionary and
\nThesaurus, which reads as follows:\n<\/p>\n
“the study that deals with deciphering, interpreting, and classifying
\ninscriptions, esp. ancient inscriptions”\n<\/p>\n
\t18.Therefore, the nature of duties performed by an Ephigraphist or
\nArchaeologist is not strictly confined to Hindu Religious structures alone.\n<\/p>\n
\t19.For example to decipher Brahmi inscription sites which were found are
\nnot inside any temple. But those sites are spread over the length and breadth of
\nTamilnadu. Likewise there are Jain and Budhist places of abodes, worship or
\ncaves and cave paintings are found all over this State. With reference to Brahmi
\ninscriptions in Tamilnadu, the famous scholar Iravatham Mahadevan had stated
\nthat the Tamil Brahmi inscriptions are the only record of old Tamil which are
\neven prior to Sangam poetry. In his interview published in “Frontline” an
\nEnglish Fortnightly magazine, dated 17.7.2009, he had stated as follows:
\n“Tamil-Brahmi inscriptions are important not only in the history of Tamil Nadu
\nand the rest of South India but for the whole country. They have many unique
\ndistinctions. They are the oldest writings in any Dravidian language. They are
\nalso the oldest Jaina inscriptions in India. I believe that the Mankulam Tamil-
\nBrahmi inscription of [Pandyan king] Nedunchezhiyan is older than the Karavela
\ninscription at Udayagiri in Orissa.\n<\/p>\n
Tamil-Brahmi inscriptions are the only record of the old Tamil, the one prior to
\nSangam poetry. Many Tamil-Brahmi inscriptions are important landmarks in our
\nhistory. For example, the inscriptions of Nedunchezhiyan at Mankulam, the
\nIrumporai inscriptions at Pugalur near Karur and the Jambai inscription of
\nAdhiyaman Neduman Anji link the Sangam age with the Tamil-Brahmi age. It is the
\nJambai inscription that prove that the “Satyaputo” mentioned by Asoka was none
\nother than the Adhiyaman dynasty, which ruled from Tagadur, modern Dharmapuri.
\nRecently, Tamil-Brahmi inscriptions have been found on hero stones in the upper
\nVaigai valley near megalithic graves, thus providing a link, for the first time,
\nbetween the megalithic and the early historical periods of Tamil Nadu. The
\nTamil-Brahmi inscriptions occurring on coins, rings, potsherds and seals add
\nanother dimension to the history of Tamil Nadu. For example, the Pandyan coin of
\nPeruvazhuthi or the silver portrait coins of Cheras. There are also numerous
\ngold, silver and bronze rings of merchants and noblemen from the prosperous
\ntrading town of Karur of the Sangam age. Again, recently, excavations at
\nPattanam in Kerala have brought to light the remains of the ancient and famous
\nSangam age port of Musiri, known as Muziris to the classical historians of the
\nWest. These facts demonstrate the importance of Tamil-Brahmi inscriptions to our
\nhistory.\n<\/p>\n
It is, therefore, a great tragedy that the cave inscriptions of Tamil-Brahmi and
\nJaina sculptures [and beds] are being systematically vandalised by ignorant
\ntourists and destroyed by granite quarries. It is impossible to stop quarrying
\nbecause of vested interests and the money power and the muscle power at their
\ndisposal. Already, in my lifetime, many Tamil-Brahmi cave inscriptions have been
\nlost or have been damaged severely. I understand from scholars undertaking
\nrecent field work that the destruction is now proceeding much faster. It is sad
\nthat the public are indifferent [to this], and the State government and the
\nCentral government are helpless to stop this wanton destruction of our cultural
\nheritage. Perhaps all the Tamil-Brahmi cave inscriptions will disappear within a
\ndecade.\n<\/p>\n
The only consolation I have is that a serious attempt to record whatever remains
\nby means of video photography and digitisation has been made by the classical
\nTamil project authorities. In Early Tamil Epigraphy: From the Earliest Times to
\nthe Sixth Century A.D., I had anticipated this disastrous development and I had
\npleaded for greater awareness of our cultural heritage and more purposeful steps
\nfor their conservation. What I did not expect was that the destruction would be
\nso swift and so colossal. I can only shed tears at whatever has been lost as,
\nfrankly, I am not hopeful that whatever remains will be saved.”\n<\/p>\n
\t20.Hence the respondents cannot make it appear that  the Department of
\nArchaeology is a wing of the Hindu Religious Endowment Board. It cannot be the
\nstand of the State Government which functions under the Constitution. Therefore,
\nin order to make out a case under Article 16(5), the respondents ought to have
\nestablished that these posts are created in connection with the affairs of Hindu
\nReligion. Certainly it is not the job of the Department of Archeology to confine
\nits excavation work only on the Hindu Religious structures. There are other
\nreligions such as Buddhism, Jainism, Christianity and Islam which also had their
\nown sway over the political and geographical boundaries in the areas now known
\nas Tamilnadu.  Therefore, when the respondents called for applications for the
\nposts of Archeologists or Epigraphists, they ought not to have made blanket
\nreservation in these posts for candidates belonging to Hindu Religion alone.\n<\/p>\n
\t21.Further, Article 16(5) related to an incumbent to an office in
\nconnection with the affairs of any religion. The Epigraphist or Archaeologist
\nare certainly not  an office holder in connection with the affairs of Hindu
\nreligion. The respondents cannot reserve any post of Ephigraphist or
\nArcheologist coming under the department of Archeology notified under the Tamil
\nNadu General Subordinate Services for candidates professing only Hindu
\nReligion. They cannot recruit persons to a State service overlooking the
\nConstitutional injunction contained under Article 16(2).\n<\/p>\n
\t22.The Supreme Court in Air India Vs. Nergesh Mirza reported in 1981 (4)
\nSCC 335 has held that for an infraction of the various entries found under
\nArticle 16(2) as those words were prefixed by the term “only”, it has to be
\nproved that the discrimination alleged must be solely based on the prohibited
\nentry, such as Sex, Caste or religion, etc. In the present case, it is not the
\nstand of the respondents that the posts advertised were covered by Article 16(5)
\nof the Constitution. Further, no attempt was made to establish that the
\ndiscrimination made was not only on grounds of religion. Hence the impugned
\nnotification suffers from the vice of infracting Article 16(2) of the
\nConstitution.\n<\/p>\n
\t23.Hence the Court has no hesitation to strike down such blatant
\ndiscrimination adopted by the Department of Archaeology. The impugned order
\ndisqualifying the petitioner is invalid. The note appended in the notification
\nthat for the advertised posts only Hindus alone should apply is also invalid.\n<\/p>\n
\t24.It is worthwhile to note that in the title suits heard and disposed of
\nby a Full Bench of the Allahabad High Court in the case starting from Gopal
\nSingh Visharad (dead) and others Vs. Zahoor Ahmad and others (Other Original
\nSuit No.1\/1989, etc. batch), the work done by the Archaeological Survey of India
\n(ASI) came up for severe indictment. Though ‘Babri Masjid’ was protected
\nmonument, the bench directed the ASI to seek for an expert opinion. The ASI in
\nturn deployed the  services of a Company called Tojo-Vikas International Limited
\nto undertake geological surveys. The bench also ordered an excavation to see it
\nthere was any structure below the mosque and ruled that the exercise would be
\nundertaken by five eminent archaeologists including two Muslims. When it was
\nfound that the team of experts selected 20 members had only one Muslim, the
\nBench took notice of that fact and asked the ASI to remedy. The ASI continued to
\ndefy the orders of the Bench. Of the total 89 labourers it employed in the site
\nit had only nine Muslims. The Bench irritated by the conduct of the ASI
\nappointed a new Team  leader. Monitors were also nominated by the Bench to
\noversee the operations done by ASI. For full details one can read the opinion of
\nJustice Sudhir Agarwal, a member of the Full Bench of the Allahabad High Court.
\nThe attempt by the Court to maintain balance even in matters relating to
\narchaeology is to create public confidence and not to appease any particular
\nreligion. Hence the Department of Archaeology in order to maintain its
\nreputation must be manned by persons belonging to all religions. Lest it may be
\naccused of losing the secular character which is the hallmark  of Indian
\nrepublic.\n<\/p>\n
\t25.In the present case, the petitioner had claimed relief only to be
\nconsidered for the post of Curator.  The additional reason given for
\ndisqualifying the petitioner as set out in the counter affidavit was that for
\nbeing considered for the post of Curator, he did not have knowledge in Sanskrit.
\nBut that was not a reason found in the impugned order. The knowledge of Sanskrit
\nneed not be proved by producing any recognised certificates alone as the
\nimpugned notification stipulated that it will be sufficient if a person is able
\nto read and write Sanskrit Texts.  There is no column in the OMR sheet regarding
\na prior information to be furnished on this qualification. If the knowledge in
\nSanskrit was not expected to be proved by producing certificates from any
\nrecognised bodies, then such a requirement can be found only during the
\ninterview or by separately calling for details on that fact. That was not done
\nin this case. One cannot assume that the petitioner lacked knowledge in
\nSanskrit. Hence the action of the respondent is a blatant infringement of
\nConstitutional guarantee given to the petitioner.\n<\/p>\n
\t26.Justice Rajinder Sachar Committee (appointed by the Central Government)
\nprobed the question whether different socio-religious categories in India have
\nhad an equal chance to reap the benefits of development with a focus on Muslims
\nin India. In paragraph 3.3, Justice Sachar made the following recommendations:
\n“A more transparent recruitment system will help to build public confidence in
\nthe system. It is not being suggested that inclusion of minorities in selection
\ncommittees will improve the chances that Muslims will get selected, it can
\nsurely improve the confidence of Muslim applicants during the selection process.\n<\/p>\n
It is imperative to increase the employment share of Muslims particularly in
\ncontexts where there is a great deal of public dealing. Their public visibility
\nwill endow the larger Muslim community with a sense of confidence and
\ninvolvement and help them in accessing these facilities in larger numbers and
\ngreater proportion.”\n<\/p>\n
The stand taken by the respondents clearly shows that recruitments make by them
\nneeds greater transparency which was lacking in the present selection. Hence the
\nimpugned order is liable to be set aside and the writ petition deserves to be
\nallowed.\n<\/p>\n
\t27.The writ petition is allowed with costs. It is quantified at Rs.5000\/-
\n(Rupees five thousand only). The respondents are directed to consider the
\ncandidature of the petitioner for any one of the posts advertised in the
\nimpugned notification. This exercise shall be undertaken within twelve weeks
\nfrom the date of receipt of the copy of this order. Consequently, connected
\nmiscellaneous petition stands closed.\n<\/p>\n
vvk
\nTo\n<\/p>\n
1.The Director Department of Archaeology,
\n   Tamil Valarchi Valagam,
\n   Halls Road,
\n   Egmore, Chennai-600 008.\n<\/p>\n
2.The Secretary,
\n   Tamil Nadu Public Service Commission,
\n   Omanthoorar Government Estate,
\n   Chennai-600 002.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court K.P.A.Nallamohamed vs The Director Department Of … on 28 January, 2011 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28\/01\/2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)NO.13161 of 2009 and M.P.(MD)NO.1 OF 2009 K.P.A.Nallamohamed .. Petitioner Vs. 1.The Director Department of Archaeology, Tamil Valarchi Valagam, Halls Road, Egmore, Chennai-600 008. 2.The Secretary, […]<\/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-51052","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nK.P.A.Nallamohamed vs The Director Department Of ... on 28 January, 2011 - 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\/k-p-a-nallamohamed-vs-the-director-department-of-on-28-january-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"K.P.A.Nallamohamed vs The Director Department Of ... on 28 January, 2011 - 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