Madras High Court
T.Sergia Bindu vs The Secretary To The Government on 18 April, 2013
Bench: K.N.Basha, N.Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 18.04.2013 CORAM THE HONOURABLE MR. JUSTICE K.N.BASHA AND THE HONOURABLE MR. JUSTICE N.PAUL VASANTHAKUMAR W.P.No.25835 of 2012 and M.P.Nos.1 and 2 of 2012 T.Sergia Bindu .. Petitioner vs. 1.The Secretary to the Government, Home (Courts-I) Department, Government of Tamil Nadu, Fort St.George, Chennai-600 009. 2.The Registrar General, High Court of Judicature at Madras, Madras-600 104. 3.J.Jenitha 4.The Registrar, Dr.Ambedkar Law University Chennai-600 028. .. Respondents (R4 impleaded as per the order dated 18.03.2013) Prayer:- Habeas Corpus Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus to call the records relating to the proceedings in G.O.(4D)No.71, Home (Courts-I) Department dated 10.09.2012 on the file of the first respondent herein and to quash the same in so far as the appointment of the third respondent is concerned and to direct the respondents 1 and 2 to consider the name of the petitioner with Registration No.17655 for the selection and appointment to the post of Civil Judge Junior Division in the Tamil Nadu State Judicial Service for the year 2009-2012 within a time frame as may be fixed by this Hon'ble Court. For Petitioner : M/s.S.Subbiah For Respondents : Mr.Sanjay Gandhi Additional Govt. Pleader for R1 Mr.R.Tholgappian for R2 Mr.V.Raghavachari for Mr.S.Joel for R3 Mr.V.M.G.Ramakannan for R4 O R D E R
K.N.BASHA, J.
The petitioner, who is a practicing advocate, has come forward with this petition challenging the proceedings in G.O.(4D) No.71, Home (Courts-I) Department dated 10.09.2012 on the file of the first respondent and to quash the same insofar as the appointment of the third respondent is concerned and to direct the respondents 1 and 2 to consider the name of the petitioner with Registration No.17655 for the selection and appointment to the post of Civil Judges (Junior Division) in the Tamil Nadu State Judicial Service for the year 2009-2012 within a time frame.
2. The case of the petitioner is that she had enrolled as a Member of the Bar Council of Tamil Nadu as per enrollment No.413/99 and she is practicing in the Courts in and around Nagercoil. The first respondent invited applications for the appointment of 185 posts of Civil Judges in the Tamil Nadu State Judicial Service to be made by direct recruitment. The petitioner submitted her application and accordingly, she has written the examination on 24.3.2012 and 25.3.2012 at St.Xavier's College, Palayamkottai, Tirunelveli.
3. The petitioner was placed under the category of Women and as per the reservation system, she, being a Christian, comes under the category of Backward Class. She has secured 166 marks in the written examination. Subsequently she was called for viva voce test by the second respondent to appear on 06.6.2012 at 9.00 a.m at the Tamil Nadu State Judicial Academy, Chennai. She had attended the interview and she has secured 18 marks in the interview and as a result, her total marks is 184. She comes from Backward Class Community for Women and the total post available to that category should be 33 in number. The first respondent issued G.O.(4D) No.71, Home (Courts-I) Department dated 10.9.2012, publishing the list of selected candidates to the post of Civil Judges (Junior Division) in the Tamil Nadu State Judicial Service and the name of the petitioner does not find place in the said list. Being aggrieved against the said order, the petitioner has preferred the present petition with the above said prayer.
4. Mr.S.Subbiah, the learned counsel appearing for the petitioner while assailing the impugned Government Order dated 10.9.2012 on the file of the first respondent insofar as the appointment of the third respondent, has put forward the following contentions:
(i) The selection list which is not in conformity with the reservation for the category of Women in the Backward Class, is nothing but arbitrary.
(ii) The total number of posts available to the category of Women in the Backward Class should be 33 and such being the position, the petitioner is bound to get herself appointed to the post of Civil Judge as she is fully qualified, eligible and entitled for such appointment
(iii) The third respondent has secured 183 marks as per the mark list published by the second respondent and whereas the petitioner has secured 184 marks and as such, she is entitled to be selected and not the third respondent, who had secured only 183 marks.
(iv) The contention of the second respondent that the third respondent, who has secured 183 marks as against the petitioner who has secured 184 marks in aggregate, was selected on the basis of preferential treatment to those studied in Tamil medium, is unacceptable as there was no Tamil medium in B.L. Degree course in the Madurai Law College and the third respondent also admitted in her counter affidavit that she is not possessing any certificate to show that she had underwent B.L. Degree course in Tamil language.
(v) The information furnished by the Public Information Officer and Director of Legal Studies dated 25.03.2013 while answering the questions stated that in 5 years B.L. Degree course only English medium is available and as such, the contention of the third respondent that she studied B.L. Degree course in Tamil medium is unbelievable.
(vi) Giving preference to Tamil medium candidates in appointment to Government service is illegal.
5. Per contra, Mr.R.Tholgappian, the learned counsel appearing for the second respondent contended that the Government had notified 185 vacancies for the post of Civil Judges for the years 2009-2012 and the vacancies have been distributed as per General Turn as well as Communal Roster. It is contended that after the written examinations 461 candidates were called for viva voce and among them, 151 candidates did not secure the minimum prescribed marks for the viva voce. It is further contended that 310 candidates were shortlisted for selection on the basis of merit, rule of reservation based on the 200 point Communal Roster as prescribed by the Government in G.O.(Ms).No.65, P&AR (K) Department dated 27.05.2009 and accordingly, a total of 174 candidates were provisionally selected, the remaining being unfilled for want of candidates satisfying communal, General/Women, Physical Disability rotations along with preferential treatment to those studied in Tamil medium. The selection list was forwarded to the Government for issuing appropriate orders of appointment and accordingly, the Government, after consideration, approved the selection of 167 candidates and among them 165 appointees have taken charge as on 11.10.2012 and one appointee has taken charge on 07.12.2012 and one candidate has not joined duty.
6. The learned counsel for the second respondent submitted that the petitioner has obtained 184 marks in aggregate whereas the third respondent has obtained 183 marks in aggregate and both of them belong to Backward Class (Other than Muslims) category. It is further submitted that as per G.O.Ms.No.145, P&AR(S) Department dated 30.09.2010 persons studied in Tamil medium should be given preference and accordingly, the third respondent was found to be eligible in view of the above said Government Order by giving preferential right as she has studied in Tamil medium and ultimately she was selected. Therefore, it is contended that though the petitioner has secured one mark more than the third respondent, she was excluded from selection as a consequence of the preferring Tamil medium candidate.
7. Mr.V.Raghavachari, the learned counsel appearing for the third respondent contended that there is no infirmity or illegality in the selection of the third respondent to the post of Civil Judges (Junior Division) as she fulfills the required eligibility and she comes under the preferential quota as she had studied B.L. Degree course in Tamil medium. It is further contended that she had joined the 5 years B.L. Degree Course in the Government Law College, Madurai after completion of her higher studies in the year 1999 and underwent B.L. Degree Course in Tamil medium and she wrote all the examinations in Tamil language and completed the course in the year 2004 with 53% of marks. It is also contended that the third respondent was also selected in the examination for the post of Assistant Public Prosecutor and posted in the Court of Judicial Magistrate-II, Nagercoil and as she was called for viva voice for selection to the Post of Civil Judges (Junior Division), she opted the post of Civil Judges (Junior Division) and did not joined in the post of Assistant Public Prosecutor. It is pointed out by the learned counsel for the third respondent that even in the application for the post of Civil Judges (Junior Division), in the respective column, the third respondent had mentioned that she had studied B.L. Degree course in Tamil medium and she has also fairly stated in the counter affidavit that she is not possessing any certificate to show that she studied B.L. Degree course in Tamil language since the University is not having the practice of issuing separate certificate to the candidates who underwent studies in Tamil language. It is further submitted that she had even written the competitive examinations for the selection (written test) to the post of Civil Judges (Junior Division) only in Tamil language.
8. Mr.V.M.G.Ramakkannan, the learned counsel appearing for the fourth respondent contended that the fourth respondent also filed a counter affidavit for the limited purpose of highlighting the fact of Tamil Medium instruction in the Law Colleges in the State of Tamil Nadu. It is contended that the administrative control of the Government Law Colleges are vested with the Director of Legal Studies and the University has no specific role or control over the medium of instructions except ensuring the standards prescribed by the regulatory bodies such as Bar Council of India and University Grants Commission. It is pointed out that the Government of Tamil Nadu as per G.O.Ms.No.1492, Education Department, dated 10.08.1978 extended the scheme to facilitate the students to get instructions in Tamil medium at Government Law College, Madurai also and as per G.O.Ms.No.280, Law (LS) Department dated 14.11.2006, the Government has been providing incentive to the students joining the course. It is also submitted that the Tamil Nadu Dr.Ambedkar Law University does not issue any certificate indicating the medium of instruction to any candidate as that domain is purely with the Government of Tamil Nadu and the Directorate of Legal Studies.
9. Mr.Sanjay Gandhi, the learned Additional Government Pleader placed reliance on the Government orders viz., G.O.Ms.No.280, Law (LS) Department dated 14.11.2006 and G.O.Ms.No.1492, Education Department dated 10.08.1978 and also relied on the Tamil Nadu Appointment on Preferential Basis in the Services under the State of Person Studied in Tamil Medium Act, 2010 (Act No.10 of 2010) and reiterated the contentions as put forward by the learned counsel for the fourth respondent University and the learned counsel for the second respondent.
10. We have given our careful and anxious consideration to the rival contentions put forward by either side and perused the affidavit filed by the petitioner, counter affidavits filed by the respondents 2, 3 and 4, reply affidavit filed by the petitioner and the Government Orders.
11. At the outset it is to be stated that both the petitioner and the third respondent, who has been selected to the post of Civil Judges (Junior Division), are coming under the same category, namely, Backward Class Women (Other than Muslims Community) and the petitioner has secured 184 marks in aggregate and the third respondent has secured 183 marks in aggregate. It is pertinent to note that both the petitioner and the third respondent are coming within the zone of consideration and it is stated by the second respondent in its counter that the third respondent was found to be eligible in view of the preference given to those studied in Tamil medium. The fact remains that admittedly, the petitioner has not studied B.L. Degree course in Tamil medium, but on the other hand, the third respondent fairly and categorically stated in her affidavit that she had studied 5 years B.L. Degree course at Madurai Law College in Tamil Medium and she wrote all the examinations in Tamil language and successfully completed the course in the year 2004. It is also relevant to note that she had written the competitive examinations for the post of Civil Judges in Tamil language. As a matter of fact, we have called for the original answer sheets in respect of the third respondent and accordingly, the second respondent produced the same and the perusal of the same disclosed that the third respondent had written the answer sheets in Tamil language and there is no reason to make any false statement before this Court to the effect that she had studied Tamil medium course and she had written the examinations in B.L. Degree Course as well as the competitive examinations for the post of Civil Judge (Junior Division) in Tamil language.
12. The next important question arising for our consideration in this matter is that whether there is any Tamil medium course during the relevant point of time at the Government Law College, Madurai. It is pertinent to note that certain Government orders were brought to our notice, namely,
(i)G.O.Ms.No.1492, Education Department dated 10.08.1978;
(ii)G.O.Ms.No.280, Law (LS) Department dated 14.11.2006; and
(iii)G.O.Ms.No.145, Personnel and Administrative Reforms(S) Department, dated 30.09.2010
13. The first Government Order viz., G.O.Ms.No.1492, Education Department dated 10.08.1978 reads hereunder:
"ORDER:-
Sanction is recorded to the introduction of Tamil Medium in the Law College Madurai from the academic year 1978-79. To begin with, the Director of Legal Studies in requested to start one section in Tamil medium in the I B.G.L. Class in the Law College, Madurai.
2. The Government also sanction one post of Junior Professor in the scale of pay of Rs.1100-50-1600 with Dearness Allowance and other allowances at the rate admissible from time to time and one post of Part time Lecturer in the scale of pay of Rs.500-20-700-25-900 without allowances for a period of one year from the date of employment.
3. The expenditure is debitable to "277.Education-E. University and other Higher Education ac. Government Colleges I. Non-Plan AE. Law College 01. Salaries" (D.P.G.277E, AGAE G104).
4. This order issues with the concurrence of the Finance Department vide its J.O.No.87388/E1/78-1 dt.8.8.78.
(By order of the Governor) Sd/-.
COMMISSIONER & SECRETARY TO GOVERNMENT."
A reading of the above said Government Order makes it crystal clear that the Government introduces Tamil medium in the Law College, Madurai for the academic year 1978-79 and the Director of Legal Studies was requested to start one section in Tamil medium in the first year B.G.L class in the Law College, Madurai.
14. The second Government Order viz., G.O.Ms.No.280, Law (LS) Department dated 14.11.2006 reads that the incentive amount given to the students studying in Tamil medium was increased from Rs.180/- to Rs.400/- from the academic year 1999-2000. It is also stated in the same Government Order that there was increase in the students studying law course in Tamil for 3 years as well as for 5 years B.L. Degree course. It is also seen that in the said Government Order, a separate section was started for the Tamil medium course.
15. A reading of the above said two Government Orders clearly shows that there was Tamil medium in 5 years B.L. Degree Course in Madurai Law College. The said Government Orders are very much in operation as on date, but the fact remains that the petitioner has not challenged the said Government orders.
16. The fourth respondent, namely, the Tamil Nadu Dr.Ambedkar Law University categorically stated in Para 5 of its counter as hereunder:
"5.The contents in G.O.Ms.No.280, Law (LS) Department, dated 14.11.2006 reveal instructions of Law through Tamil Medium up to 2001-2002 and revival of the same from the year 2006-2007 at Dr.Ambedkar Government Law College, Chennai. The Government of Tamil Nadu vide Government Order Ms.No.1492, Education Department, dated 30.08.1978 (submitted in annexure) extended the scheme to facilitate the students get instruction in Tamil Medium at Government Law College, Madurai also. The G.O.Ms.No.280, Law (LS) Department, dated 14.11.2006 (submitted in annexure) has been providing incentive to the students joining the course. The Scheme devised by the Government has been implemented through the Director of Legal Studies. The University is not in receipt of any records pertaining to us."
In the counter affidavit, it is also stated by the fourth respondent that the University does not issue any certificate indicating the medium of instruction to any candidate and the said submission substantiates the contention of the third respondent to the effect that she is not possessing any certificate to show that she had underwent B.L. Degree course in Tamil Language in Madurai Law College.
17. The learned counsel for the petitioner placed reliance on the information furnished to the queries made by the petitioner under the Right to Information Act and as per the reply given by the Public Information Officer and the Director of Legal Studies dated 25.03.2013, there is no Tamil medium in 5 years B.L. Degree course in Madurai Law College. As we have already pointed out that there is a Government Order even as early as in the year 1978 and thereafter in the year 2006 showing that there was Tamil Medium class in 5 years B.L. Degree course in Madurai Law College. The Public Information Officer and the Director of Legal Studies may not aware about the said Government Orders and the said Government Orders are very much in operation till date. It is also relevant to note that the perusal of the information furnished by the Public Information Officer and the Director of Legal studies dated 25.03.2013 reveals that as per question/information No.2, it is stated that in 5 years B.L. Degree course from 1986-87 to 1994-95, separate classes were conducted for Tamil medium and for question/information No.4, it is stated that in the University examinations, the students can write either in Tamil or English Language. Therefore, we have no hesitation to hold that the information furnished by The Public Information Officer and Director of Legal Studies cannot be stated to be a correct information and as such, it is futile to contend that there is no Tamil medium in 5 years B.L. Degree Course in Madurai Law College.
18. We have already held that the third respondent had studied 5 Years B.L. Degree course in Madurai Law College in Tamil medium and she had also written the examinations in Tamil and she is eligible and entitled to get the benefit of preferential right as per Act 40 of 2010, namely, The Tamil Nadu appointment on Preferential Basis in the services under the State of persons studied in Tamil Medium Act, 2010. The said Act provides preference in appointment in the services under the State to persons who have obtained the educational qualification prescribed for direct recruitment through Tamil medium instruction. In the said Act, it is also made clear that it shall be deemed to have come into force on 7th Day of September, 2010. As per Section 5 of the Act, preferential basis appointments to persons studied in Tamil medium under Section 3 shall be made following the reservation as per the law in force. In view of the provisions of the Act 40 of 2010, the third respondent has been rightly selected and appointed on the basis of her eligibility and on the basis of reservation and preferential appointment, as she had studied 5 years B.L. Degree course in Tamil medium in Madurai Law College. We are unable to see any infirmity or illegality in respect of the selection and appointment of the third respondent.
19. The attempt made by the learned counsel for the petitioner to indirectly challenge the provisions of Act 40 of 2010, giving preference, cannot be entertained as the petitioner participated the selection in terms of the notification and taken a chance. The selection notification clearly mentioned about preference to Tamil medium candidate. Further, no prayer to that effect is made in this writ petition and the respondents could not answer the said contention in their counter affidavits as no such ground was raised in this writ petition. Apart from that even if the Act is to be held illegal the said decision would apply prospectively and the same cannot be applied to the selection already over and the third respondent is selected in the said selection.
20. In fine, this writ petition is dismissed as devoid of merits. No costs. Consequently, the connected miscellaneous petitions are closed.
[K.N.B., J.] [N.P.V, J.]
18.04.2013
Index : Yes / No
Internet : Yes / No
jvm
K.N.BASHA, J.,
AND
N.PAUL VASANTHAKUMAR, J.,
jvm
To
1.The Secretary to the Government,
Home (Courts-I) Department,
Government of Tamil Nadu,
Fort St.George, Chennai-600 009.
2.The Registrar General,
High Court of Judicature at Madras,
Madras-600 104.
3.The Registrar,
Dr.Ambedkar Law University
Chennai-600 028.
W.P.No.25835 of 2012
and M.P.Nos.1 and 2 of 2012
18.04.2013