Madras High Court
K.Jothibasu vs The State Of Tamil Nadu on 26 September, 2012
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26/09/2012 CORAM THE HONOURABLE MR.JUSTICE VINOD K.SHARMA W.P.(MD)No.319 of 2011 W.P.(MD)No.320 of 2011 W.P.(MD)No.321 of 2011 W.P.(MD)No.322 of 2011 and 7292, 7293 of 2011 and M.P.(MD) Nos.1 and 2 of 2011 in W.P.(MD) Nos.7292 and 7293 of 2011 and M.P.(MD) Nos.2, 3 and 5 of 2012 in W.P.(MD) No.7292 of 2011 and M.P.(MD) Nos.2, 3, 6 and 7 of 2012 in W.P.(MD) No.7293 of 2011 K.Jothibasu ... Petitioner in W.P.(MD) No.319 of 2011 P.Balamurugan ... Petitioner in W.P.(MD) No.320 of 2011 P.Karthikeyan ... Petitioner in W.P.(MD) No.321 of 2011 C.Sivaprabakar ... Petitioner in W.P.(MD) No.322 of 2011 V.Senthur ... Petitioner in W.P.(MD) No.7292 of 2011 K.Alagirisamy ... Petitioner in W.P.(MD) No.7293 of 2011 Vs. The State of Tamil Nadu, Rep. by its Secretary, Public Works Department, Fort St. George, Chennai - 09 ... 1st Respondent in W.P.(MD) Nos.319 to 322 of 2011 The Engineer-in Chief, WRO and Chief Engineer (General), Public Works Department, Chepauk, Chennai - 05.... 2nd Respondent in W.P.(MD) Nos.319 to 322 of 2011 S.Vijayanand E.Emmanel Jaikar M.Suganthi R.Arunmozhi R.Shanthi P.Pushopalingam K.S.Senthil Kumar ... Respondents 3 to 9 in W.P.(MD) No.319 of 2011 (R3 to R9 in W.P.(MD) No.319 of 2011 were impleaded as party respondents vide Court order dated 27.06.2012 in M.P.(MD) No.1 of 2012) The Tamilnadu Public Service Commission Chennai - 600 002 Rep. by its Secretary... 1st Respondent in W.P.(MD) Nos.7292 and 7293 of 2011 The Engineer-in Chief (Buildings) & Chief Engineer (General) Chief Engineer (Buildings), Chennai Region, Public Works Department, Chepauk, Chennai. ... 2nd Respondent in W.P.(MD) Nos.7292 and 7293 of 2011 P.Balamurugan ... 3rd Respondent in W.P.(MD) No.7292 of 2011 K.Rajkumar ... 3rd Respondent in W.P.(MD) No.7293 of 2011 Diploma Engineers Association, Tamilnadu, PWD Campus, Thallagulam, Madurai, Rep. by State President Er.S.Nilam Alikhan ... 4th Respondent in W.P.(MD) Nos.7292 and 7293 of 2011 (R4 impleaded as per order in M.P.(MD) No.1 of 2012 dated 23.05.2012) M.Elango C.Thiliban B.Senthilkumaran ... Respondents 5 to 7 in W.P.(MD) Nos.7292 and 7293 of 2011 (R5 to R7 impleaded as party respondents vide Court order dated 08.06.2012 in M.P.(MD) No.4 of 2012) P.Govindarajulu V.Mohan ... Respondents 8 and 9 in W.P.(MD) No.7293 of 2011 (R8 & R9 impleaded as party respondents as per the order of the Court dated 27.06.2012 in M.P.(MD) No.5 of 2012) The Tamilnadu Engineers Association, PWD Campus, Chepauk, Chennai - 600 005 Represented by its Secretary K.Kamaldeen ... 8th Respondent in W.P.(MD) No.7292 of 2011 and 10th respondent in W.P.(MD)No.7293 of 2011 (8th Respondent in W.P.(MD) No.7292 of 2011 and 10th respondent in W.P.(MD) No.7293 of 2011 impleaded as per order of Court made in M.P.(MD) Nos.7 and 8 of 2012 in W.P.(MD) Nos.7292 and 7293 of 2011) Common Prayer in W.P.(MD) Nos.319 to 322 of 2011 Writ Petitions are filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus to direct the 2nd respondent to prepare and publish seniority list of Assistant Engineers (Civil) (PWD) 1997-99 on the basis of the merit ranking list of the candidates for promotion to the post of Assistant Executive Engineers in Public Works Department. Common Prayer in W.P.(MD) Nos.7292 and 7293 of 2011 Writ Petitions are filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus to call for the records relating to the order passed by the 2nd respondent in Lr.No.S2(2)/22333/2007-1 and Lr.No.S2(2)/22333/2007-3 respectively dated 28.03.2011 and to quash the same as illegal and consequentially to direct the 2nd respondent to fix the petitioner's seniority in the post of Assistant Engineer based on the total marks obtained by the petitioner in the selection (written and oral test) process within the period that may be stipulated by this Hon'ble Court. !For Petitioner in WP(MD) Nos.319 to 322 of 2011 ... Mr.G.R.Swaminathan For Petitioner in WP(MD) Nos.7292 and 7393 of 2011 ... Mr.M.Ajmal Khan Senior Counsel ^For 1st Respondent in WP(MD) Nos.7292 and 7393 of 2011 ... No Appearance For Respondents 1 & 2 in WP(MD) Nos.319 to 322 of 2011 and 2nd Respondent in WP(MD) Nos. 7292 and 7393 of 2011 ... Mr.R.Karthikeyan Additional Government Pleader For Respondents 3 to 9 in WP(MD) No.319 of 2011... Mr.Arul Vadivel @ Sekar For 3rd Respondent in WP (MD) No.7292 of 2011 ... Mr.A.V.Rajasekaran For 3rd, 8th and 9th Respondent in WP (MD) No.7293 of 2011 ... Mr.A.Thirumoorthy For 4th Respondent in WP (MD) Nos.7292 & 7293 of 2011 ... Mr.G.Prabhu Rajadurai For Respondents 5 to 7 in WP (MD) Nos.7292 & 7293 of 2011 ... Mr.N.Krishnakumar For 8th Respondent in WP (MD) No.7292 of 2011 and 10th Respondent in WP(MD) No.7293 of 2011 ... Mr.K.Balasubramanain ******** :ORDER
This common order shall dispose of the following writ petitions (1) W.P.(MD) No.319 of 2011 - K.Jothibasu (2) W.P.(MD) No.320 of 2011 - P.Balamurugan (3) W.P.(MD) No.321 of 2011 - P.Karthikeyan (4) W.P.(MD) No.322 of 2011 - C.Sivaprabakar (5) W.P.(MD) No.7292 of 2011 - V.Senthur and (6) W.P.(MD) No.7293 of 2011 - K.Alagirisamy, as the common question of law is involved.
2. However, for the sake of gravitation, the facts have been taken from W.P.(MD) No.7292 of 2011.
3. The petitioner prays for issuance of writ in the nature of certiorari to quash the order Lr.No.S2(2)/22333/2007-1 dated 28.03.2011, passed by the Engineer-in-Chief (Buildings) & Chief Engineer (General), Chief Engineer (Buildings), Chennai Region, Public Works Department, Chepauk, Chennai with a consequential relief of writ in the nature of mandamus to direct the second respondent to fix the seniority of the petitioner in the post of Assistant Engineer based on the total marks obtained by the petitioner in the selection (written and oral test) process.
4. The petitioner belongs to Most Backward Community/Denotified Tribe, who completed his B.E. Degree with Post Graduation in M.Tech. A notification was issued by the Tamil Nadu Public Service Commission inviting applications for the post of Assistant Engineer in the Public Works Department (1998-1999) and included in the combined Engineering Services 1997-1999. The petitioner being fully eligible and qualified for appointment to the post, submitted his application. In the written test, the petitioner secured 504.90 whereas in the interview the petitioner secured 79.75 marks. The petitioner came in merit, and provisionally selected for appointment. The petitioner joined as Assistant Engineer on 12.06.2000.
5. Though the petitioner had applied for appointment in M.B.C. quota, but in view of the marks obtained by him, he was placed in Open Category (General Turn). The second respondent after appointment of Assistant Engineers did not circulate the seniority list. It was the apprehension of the petitioner, that as the petitioner was selected in the Open Category, he was likely to be placed below the candidates selected in M.B.C. category, though having lessor marks, in view of the fact that selection was made on a 100 point roaster system. The petitioner though obtained 584.65 marks, he was place at Serial No.107 in the select list, whereas Mr.P.Balamurugan, who belongs to M.B.C. Category i.e. the Category of petitioner but had secured 567.26 marks was placed at select list No.4. This was the case also of Mr.S.Thiagarajan belonging to M.B.C. Category, who obtained 567.26 marks but was placed at select list No.10. If the seniority is to be drawn on the roaster point system, then the petitioner will be placed junior to the candidates selected against seats reserved for M.B.C. though they were lower in merit.
6. The petitioner therefore filed a representation dated 30.07.2010, but no action was taken on the representation of the petitioner. The petitioner therefore, filed W.P.(MD) No.14791 of 2010 to direct the respondents to fix the seniority as per the merit of Tamil Nadu Public Service Commission examination. It was in pursuance to the directions issued by this Court, that the representation filed by the petitioner was rejected by respondent No.2.
7. The reason for rejection of the representation of the petitioner was that it is not open to the respondent No.2 to revise or modify the select lest drawn by the Tamil Nadu Public Service Commission as the select list was based on merit subject to the Rule of Reservation in terms of Rule 35(a)(2) of the General Rules for Tamil Nadu State and Subordinate Service.
8. The impugned order has been challenged on the ground, that not withstanding the selection process was by adopting roaster system but it cannot be adopted for fixing the seniority. It was the duty of respondents also to see that the seniority is assigned based on marks/rank obtained by the candidates, and not on the roaster system. The impugned order therefore is hit by Article 14 and 16 of the Constitution of India in as much as the petitioner though having higher marks is placed junior to the persons who had secured lesser marks, even though both belongs to the same category and, had competed for the post as reserved category candidate.
9. The impugned order is also challenged being violation of the law laid down by the Hon'ble Supreme Court in Union of India v. Ramesh Ram and others reported in 2010 (7) SCC 234. It is contended the seniority was to be drawn based on the rank obtained by the petitioner in the selection (written examination and interview) process, and not by following the communal roaster system.
10. The writ petition is apposed on the ground that as per Rule 35(a) of the Tamil Nadu and Subordinate Service Rules, the seniority of the petitioners is to be determined only on the basis of the ranks assigned to them by the Tamil Nadu Public Service Commission. Therefore, the ground raised by petitioners being contrary to the Rule governing the fixation of seniority deserves to be rejected.
11. It is also the stand of the respondents that the serial numbers assigned by the Tamil Nadu Public Service Commission to the candidates in select list communicated to the appointing authorities is not merely serial numbers, but exhibits the rank obtained by the candidates in the selection process subject to the rule of reservation.
12. The respondents being bound by the select list drawn by the Tamil Nadu Public Service Commission and bound to accept it.
13. The stand of the respondent, therefore is the impugned order is strictly in accordance with Rule 35(a) of the Tamil Nadu State and Subordinate Service Rules.
14. The private respondents filed a separate counter, wherein the stand taken is that the petitioner was placed in Serial No.107 of the select list, whereas the respondent No.3 was placed at select No.4. It is also submitted that the seniority of the selected candidate was fixed by the Tamil Nadu Public Service Commission as per the provisions of Schedule III of rule 22(c) of Tamil Nadu State and Subordinate Service Rules.
15. It is also submitted that the selection for appointment under the rule is to be made in order of rotation as specified in Schedule III part. The respondent No.1 therefore fixed the seniority as per the reservation rotation.
16. It is also their case that the select list was circulated in the year 1999-2000, which is a Seniority list under Rule 35(a) referred to above. The stand taken by the private respondent is similar to one taken by respondent No.1.
17. In order to appreciate the controversy it will be necessary to reproduce Rule 35 of the Tamil Nadu State and Subordinate Service Rules, which reads as under:
"35(a) The seniority of a person in a service, class or category or grade shall unless he has been reduced to a lower rank as a punishment be determined by the rank obtained by him in the list of approved candidates drawn up by the Tamil Nadu Public Service Commission or other Appointing Authority, as the case may be, subject to the rule of reservation where it applies. The date of commencement of his probation shall be the date on which he joins duty irrespective of his seniority.
(aa) The seniority of a person in a service, class, category or grade shall, where the normal method of recruitment to that service, class, category or grade is by more than one method of recruitment, unless the individual has been reduced to a lower rank as a punishment, be determined with reference to the date on which he is appointed to the services, class category or grade.
Provided that where the junior appointed by a particular method or recruitment happens to be appointed to a service, class, category or grade, earlier than the senior appointed by the same method of recruitment, the senior shall be deemed to have been appointed to the service, class, category or grade on the same day on which the junior was so appointed:
Provided further that the benefit of the above proviso shall be available to the senior only for the purpose of fixing inter-se-seniority:
Provided also that where persons appointed by more than one method of recruitment are appointed or deemed to have been appointed to the service, class, category or grade on the same day, their inter-se-seniority shall be decided with reference to their age.
*Substituted in G.O.Ms.No.523, P & AR, dt. 4.6.82, w.e.f. 13.7.78.
(b) The transfer of a person from one class or category of a service to another class or category carrying the same pay or scale of pay shall not be treated as first appointment to the latter for purpose of seniority and the seniority of a person so transferred all be determined with reference to the rank in the class or category from which he was transferred; where any difficulty or doubt arises in applying this sub-rule, seniority shall be determined by the appointing authority.
(c) Where a member of any service, class, category or grade is reduced to a lower service, class, category or grade he shall be placed at the top of the latter unless the authority ordering such reduction directs that he shall take rank in such lower service, class, category or grade, next below any specified member thereof.
(d) The seniority of any person in a service or post of the merged territory of Pudukkottai, who is absolutely in a service or post under the Government of Tamil Nadu shall be determined as follows:-
(i) If he is absorbed in a post similar to that which he was formerly holding in the service of the merged territory of Pudukkottai, his seniority shall be determined by the date from which he was holding the former post continuously.
(ii) If he is absorbed in a post of a higher cadre carrying a higher scale of pay than that which he was formerly holding in the service of the merged territory of Pudukottai his seniority shall be determined by the date on which he joined the post under the Government of Tamil Nadu.
(iii) If he absorbed in a post other than those specified in clauses (i) and (ii) which does not improve his cadre and scale of pay in the service of the merged territory of Pudkottai, his seniority shall be determined on the basis of merit.
(e) Deleted (in G.O.Ms.No.293, P & AR (Per.P); dt. 30.3.1984.) $ (f) Application for the revision of seniority of a person in a service, class, category or grade shall be submitted to the appointing authority within a period of three years from the date of appointment to such service, class, category or grade or within a period of three years from the date of order fixing the seniority, as the case may be. Any application received after the said period of three years shall be summarily rejected. This shall not, however, be applicable to cases of rectifying orders, resulting from mistake of facts."
18. On the admitted facts, the question to be decided in all these writ petitions is "Whether a person belonging to a reserve category can be put to disadvantage merely because he is more meritorious and is selected in the general category thereby giving additional chance to a reserve category candidate, who could not have been selected if candidate with higher merit was not included in the general category."
19. Learned Senior counsel in support of the prayer in writ contended that the roaster point in the case of reserved candidate does not determine seniority at basic level. In support of this contention reliance was placed on certain observation of the Hon'ble Supreme Court in Ajit Singh and Others (II) vs. State of Punjab and others, 1999 (7) SCC 209, where the Hon'ble Supreme Court was pleased to observe that reservation under Articles 16(4) and 16(4-A) are not intended to determine seniority but are merely intended to provide "adequate representation" at promotional level.
20. The Hon'ble Supreme Court in the said decision also observed that the roaster promotees will get seniority over the senior general candidates who reach the level later (but before the further promotion of the reserved candidate) cannot be accepted as correct. This contention deserves to notice to be rejected for the reason that in Ajit Singh and Others (II) vs. State of Punjab and others, 1999 (7) SCC 209, the question was with regard to seniority of general category employee on a promoted posts on which reserved category employee was promoted earlier because of reservation, though junior in the lower post.
21. Learned Senior Counsel for the petitioner also placed reliance on the judgment of the Hon'ble Supreme Court in Bimlesh Tanwar vs. State of Haryana and others, 2003 (5) SC 604, wherein the Hon'ble Supreme Court was pleased to lay down as under:
"39. In K. Duraisamy v. State of T.N., 2001 (2) SCC 538 this Court held:
'12. The mere use of the word 'reservation' per se does not have the consequence of ipso facto applying the entire mechanish underlying the constitutional concept of a protective reservation specially designed for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes, to enable them to enter and adequately represent in various fields. The meaning, content and purpose of that expression will necessarily depend upon the purpose and object with which it is used.'
40. An affirmative action in terms of Article 16(4) of the Constitution is meant for providing a representation of a class of citizenry who are socially or economically backward. Article 16 of the Constitution of India is applicable in the case of an appointment. It does not speak of fixation of seniority.
Seniority is, thus, not to be fixed in terms of the roaster points. If that is done, the rule of affirmative action would be extended which would strictly not be in consonance of the constitutional schemes. We are of the opinion that the decision P.S.Ghalaut v. State of Haryana, 1995 (5) SCC 625 does not lay down a good law.
...
46. In Union of India v. S.S. Uppal, 1996 (2) SCC 168 it has been held:
the provisions of Articles 16(1), 16(4) and 335 of the Constitution of India imply that a process should be adopted while making appointment through direct recruitment or promotion in which the merit is not affected."
22. On consideration, I find force in the contention raised by the learned Senior Counsel for the petitioner, as the person belonging to a reserved category cannot be made to suffer merely because he happens to secure more marks to find place in merit of general category. For the purpose of seniority and other benefits he has to be treated as belonging to reserve category, as the person belonging to the same category with lower marks cannot be allowed to enjoy the benefit only because he is less meritorious. In case case, this is allowed, then it will be hit by Article 14 and 16 of the Constitution of India.
23. This view finds supports from the judgment of the Hon'ble Supreme Court in Anurag Patel v. U.P. Public Service Commission and others, AIR 2005 SC 1262 laying down as under:
"6. In the matter of admission to the Medical College, the same difficulty was experienced and this Court held in Ritesh R. Sah v. Dr. Y.L. Yamul and others, (1996) 3 SCC 253, in paragraph 17 of the judgment at page 261 as follows:
"... In view of the legal position enunciated by this Court in the aforesaid cases the conclusion is irresistable that a student who is entitled to be admitted on the basis of merit though belonging to a reserved category cannot be considered to be admitted against seats reserved for reserved category. But at the same time the provisions should be so made that it will not work out to the disadvantage of such candidate and he may not be placed at a more disadvantageous position that the other less meritorious reserved category candidates. The aforesaid objective can be achieved if after finding out the candidates from amongst the reserved category who would otherwise come in the open merit list and then asking their option for admission into the different colleges which have been kept reserved for reserved category and thereafter the cases of less meritorious reserved category candidates should be considered and they be allotted seats in whichever colleges the seats should be available. In other words, while a reserved category candidate entitled to admission on the basis of his merit will have the option of taking admission in the Colleges where a specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation he will be deemed to have been admitted as an open category candidate and not as a reserved category candidate.' The same question was considered by this Court in State of Bihar and others v. M. Neethi Chandra & others, (1996) 6 SCC 36, wherein it was held in paragraph 13 as follows:
'... However, to the extent the meritorious among them are denied the choice of college and subject which they could secure under the rule of reservation, the circular cannot be sustained. The circular, therefore, can be given effect only if the reserved category candidate qualifying on merit with general candidates consents to being considered as a general candidates on merit-cum-choice basis for allotment of college/institution and subject.' In the instant case, as noticed earlier, out of 8 petitioners in Writ Petition No.22753/93, two of them who had secured ranks 13 and 14 in the merit list, were appointed as Sales Tax Officer-II, whereas the persons who secured rank Nos.38, 72 and 97, ranks lower to them, got appointment as Deputy Collectors and the Division Bench of the High Court held that it is a clear injustice to the persons who are more meritorious and directed that a list of all selected Backward Class candidates shall be prepared separately including those candidates selected in the general category and their appointments to the posts shall be made strictly in accordance with merit as per the select list and preference of a person higher in the select list will be seen first and appointment given accordingly, while preference of a person lower in the list will be seen only later. We do not think any error or illegality in the direction issued by the Division Bench of the High Court."
24. This view was again followed by the Hon'ble Supreme Court in the case of Union of India v.Ramesh Ram and others, 2010 (7) SCC 234 to uphold Civil Services Examination Rule 16(2) to (5). Civil Services Examination Rule, 2005, which gave option to the reserve category candidate selected in the general merit to opt for selection of cadre based on their merit as a reserved category candidate.
25. The contention of the respondents that under Rule 35(a) of Tamil Nadu State and Subordinate Service Rules, the seniority has to be fixed only as per the merit list circulated by Tamil Nadu Public Service Commission, cannot be sustained, as the rank obtained by a candidate is to be in same category. Therefore for drawing the merit of the candidates, the Tamil Nadu Public Service Commission was bound to prepare the separate list for all categories separately even if reserved category candidate is selected in the general category. The interpretation given by respondents to Rule 35(a) would render it unconstitutional, which cannot be accepted, as it is settled law that it is legal and enforceable and not in a way which will render it unconstitutional. The Rule 35(a) therefore is to be read to mean rank obtained in category under which applied for.
26. The impugned order is thus hit by Article 14 and 16 of the Constitution of India, as it discriminates between persons similarly situated by giving higher seniority to candidate with lower marks than more meritorious candidate, merely because of merit he is placed in general category.
27. The objection was also raised by the respondents, that the writ petitions suffers from delay and latches, because it was not open to the petitioner to challenge the merit list of the year 2000.
28. This objection is noticed to be rejected, "firstly for the reason that the impugned order was passed only on 28.03.2011 and the writ petition has been filed immediately thereafter. Secondly for the reason that it is not disputed that no provisional or final seniority list has been circulated by the department till date." Therefore, it cannot be said that there is any delay on the part of the petitioner to approach this Court.
29. Consequently, these Writ Petitions are allowed and a writ in nature of certiorari is issued quashing the impugned order. A writ of mandamus is also issued directing the respondents to fix the seniority in each category on the basis of merit in the Tamil Nadu Public Service Commission by placing petitioners senior to those lower in merit in same category. No costs. Consequently, connected M.Ps. are closed.
sj To
1.The Secretary, Government of Tamil Nadu, Public Works Department, Fort St. George, Chennai - 09.
2.The Engineer-in Chief, WRO and Chief Engineer (General), Public Works Department, Chepauk, Chennai - 05.
3.The Secretary, Tamilnadu Public Service Commission, Chennai - 600 002.