Madras High Court
J.Jeyatha vs The State Of Tamil Nadu on 6 June, 2018
W.P.(MD)Nos.12453 & 16919 of 2018 & CONT.P(MD)No.947 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 18.03.2022
DELIVERED ON : 04.08.2022
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD)Nos.12453 & 16919 of 2018
and
CONT.P(MD)No.947 of 2019
and
W.M.P.(MD)Nos.14942 to 14944 of 2018
W.P.(MD)No.12453 of 2018
J.Jeyatha ... Petitioner
vs
1. The State of Tamil Nadu
represented by its Secretary,
School Education Department,
Fort St.George,
Chennai – 600 009.
2. The Director of School Education,
DPI Campus, College Road,
Chennai – 600 006.
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W.P.(MD)Nos.12453 & 16919 of 2018 & CONT.P(MD)No.947 of 2019
3. Teachers Recruitment Board,
represented by its Member – Secretary,
DPI Campus, College Road,
Chennai – 600 006. ... Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorarified Mandamus, to call for the records relating to the
impugned order passed by the second respondent in his proceedings Na.Ka.No.
92510/W.1/2017, dated 06.06.2018 and quash the same as illegal in so far as the
candidates placed in the Serial No.378 onwards are concerned and
consequentially to direct the respondents to prepare the seniority list afresh based
on the marks secured by the respective candidates in the examination conducted
by the recruitment agency for appointment to the post of P.G. Assistant in the year
2001-2002.
For Petitioner : Mr.H.Mohammed Imran
for Ajmal Khan
For Respondents : Mr.S.P.Maharajan for R1,R2
Special Government Pleader
Mr.V.R.Shanmuganathan for R3
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W.P.(MD)Nos.12453 & 16919 of 2018 & CONT.P(MD)No.947 of 2019
W.P.(MD)No.16919 of 2018
V.Geetharani ... Petitioner
vs
1. The State of Tamil Nadu
represented by its Secretary,
School Education Department,
Fort St.George, Chennai – 600 009.
2. The Director of School Education,
DPI Campus, College Road,
Chennai – 600 006.
3. Teachers Recruitment Board,
represented by its Member – Secretary,
DPI Campus, College Road,
Chennai – 600 006.
4. The Chief Educational Officer,
O/o. The Chief Educational Office,
Virudhunagar,
Virudhunagar District. ... Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of India for
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W.P.(MD)Nos.12453 & 16919 of 2018 & CONT.P(MD)No.947 of 2019
issuance of Writ of Certiorarified Mandamus, to call for the records relating to the
impugned order passed by the second respondent in his proceedings Na.Ka.No.
92510/W.1/2017, dated 06.06.2018 and quash the same as illegal in so far as the
candidates placed in the Serial No.378 onwards are concerned and
consequentially to direct the respondents to prepare the seniority list afresh based
on the marks secured by the respective candidates in the examination conducted
by the recruitment agency for appointment to the post of P.G. Assistant in the year
2001-2002.
For Petitioner : Mr.H.Mohammed Imran
for Ajmal Khan
For Respondents : Mr.S.P.Maharajan for R1,R2 & R4
Special Government Pleader
Mr.V.R.Shanmuganathan for R3
CONT.P(MD)No.947 of 2019
V.Geetharani ...Petitioner/ Petitioner/Petitioner
vs
1. Mr.Pradeep Yadav, I.A.S.,
The Secretary,
School Educatin Department,
Fort St.George,
Chennai – 600 009.
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W.P.(MD)Nos.12453 & 16919 of 2018 & CONT.P(MD)No.947 of 2019
2. Mr.Dr.V.C.Rameswara Murugan,
The Director of School Education,
DPI Campus, College Road,
Chennai – 600 006.
3. Mrs.Uma,
The Member Secretary,
Teachers Recruitment Board,
DPI Campus, College Road,
Chennai – 600 006.
4. Mr.Swaminathan,
The Chief Educational Officer,
O/o.the Chief Educational Officer,
Virudhunagar,
Virudhunagar District. ... Contemnors/Respondents/Respondents
PRAYER: Petition filed under Section 11 of the Contempt of Court Act, 1971, to
punish the respondent for the deliberate and willful disobedience of the order
dated 31.07.2018 passed by this Court in W.M.P.(MD)No.14944 of 2018 in W.P.
(MD)No.16919 of 2018.
For Petitioner : Mr.H.Mohammed Imran
for Ajmal Khan
For Respondents : Mr.S.P.Maharajan for R1,R2,R4
Special Government Pleader
Mr.V.R.Shanmuganathan for R3
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W.P.(MD)Nos.12453 & 16919 of 2018 & CONT.P(MD)No.947 of 2019
ORDER
The two writ petitions in W.P.(MD)No.12453 of 2018 and W.P.(MD)No. 16919 of 2018 are filed to quash the impugned order passed by the second respondent in his proceedings Na.Ka.No.92510/W.1/2017, dated 06.06.2018. There is an interim order, dated 21.07.2018 and the petitioner has filed a contempt petition No.947 of 2019 alleging the disobedience of the interim order.
2. The brief facts of the case as stated in W.P.(MD)No.12453 of 2018 are that the petitioner had applied under the Notification issued by the third respondent (TRB) for appointment to the post of P.G. Assistant (Tamil) in the year 2001-2002. The petitioner's Registration Number is 040206 and obtained 79.50 marks and the table below would be evident:
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https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.12453 & 16919 of 2018 & CONT.P(MD)No.947 of 2019 S.No. Name Regn. No. Marks Seniority No. assigned Obtained 1 S.Tamilselvi 044656 77.50 448 2 R.Revathi 045067 77.00 512 3 J.Jeyatha 040406 79.50 795 (Petitioner) The selection list was published by the third respondent on 22.02.2002. As per the selection list, the petitioner has secured 24th place based on marks. As the petitioner belongs to BC Community, she was selected under the General Turn itself. In so far as the seniority list is concerned, the same ought to be prepared as per Rule 35(aa) of the Tamil Nadu State and Sub-ordinate Service Rules. The said rule mandates that the seniority of a candidate shall be governed throughout the service by the rank assigned by the selecting authority. In the instant case, the TRB is the selecting authority.
3. The contention of the petitioner is that till date the TRB has not assigned any rank but has only been assigned serial number. In so far as selection is 7/17 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.12453 & 16919 of 2018 & CONT.P(MD)No.947 of 2019 concerned, the State of Tamil Nadu follows the Rules of Reservation under Rule 22 of the Tamil Nadu State and Sub-ordinate Service Rules and the 200 point roster prescribed whereby the posts are reserved for various categories. The said roster is only for the purpose of estimation of vacancies to satisfy the reservation policy. As far as the promotional avenues to the post of P.G. Assistant is concerned, the next promotional post is the Higher Secondary Headmaster. The contention of the petitioner is that from the date of selection, the petitioner has been periodically approaching the respondents on various occasion to assign her rank based on the marks obtained by the petitioner. The respondents have answered to a query of an individual raised under the Right to Information Act and to the various representations, the respondents TRB replied that the petitioner's rank will be assigned only by the second respondent. Therefore, the petitioner approached the second respondent on various occasion seeking the second respondent to assign rank based on the marks obtained by the petitioner in examination conducted by the third respondent Board. The contention of the petitioner that for the subsequent recruitment years i.e., for the year 2002-2003, the respondent Board itself assigned the rank by taking into account the marks 8/17 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.12453 & 16919 of 2018 & CONT.P(MD)No.947 of 2019 obtained by the candidates in the competitive examination. In other words, the roster point was not taken into account for the purpose of assigning the rank but the competitive merit list alone was taken into account for the purpose of assigning the rank. The issue was already considered by the Hon’ble Supreme Court as early as in the year 2003 and laid down the law in Bimlesh Tanwar's case reported in 2003 5SCC 604, that seniority cannot be fixed based on roster point and the seniority shall be fixed only based upon the merits on the basis of marks. In yet another case in the year 2012, the Hon’ble Court in K.R.Shanthi Vs. The Secretary Education Department in W.P. No. 21170 of 2012 batch cases reported in 2012 (2) CWC 750 while dealing in respect of appointment and selection to the post of P.G. Assistant has held that the rank should be assigned only based on marks obtained in the competitive examination and the 200 point roster is only for the purpose of estimation of vacancy and nothing more.
4. The contention of the petitioner is that one S.Tamilselvi who has obtained 77.50 marks was assigned seniority as 448 and one R.Revathi who obtained 77.00 was assigned as 512 and the petitioner who obtained 79.50 marks was assigned as 9/17 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.12453 & 16919 of 2018 & CONT.P(MD)No.947 of 2019 795th rank. Aggrieved over the same, the petitioner has preferred this writ petition.
5. When the writ petition came up for admission, this Court has passed a detailed Interim Order and the relevant portion is extracted here under:
“2.The learned counsel appearing for the petitioner submits that similar issue was raised in W.P.(MD)No.12453 of 2018, where in W.M.P.(MD)No.11314 of 2018 in W.P.(MD)No.12453 of 2018, dated 12.06.2018, this Court passed the following order:
“15.In view of the above, the following interim orders are passed, which would meet the ends of justice at the present scenario.
(i) The petitioner shall be permitted to participate in the counselling to be held tomorrow i.e., on 13.06.2018. During the participation of the counselling, that claim to be made by the petitioner about her seniority and ranking based on her marks she secured i.e 79.50 marks, shall alone to be taken into account as the criteria to accept the candidature of the petitioner based on seniority and accordingly, she shall be permitted to claim her right of promotion and if such a claim is made, the same shall be objectively considered and accordingly, orders to be passed with regard to the promotion of the petitioner, provided, if she comes to the zone of consideration, based on her claim (based on marks i.e. 79.50).
(ii) Insofar as the other candidates, who would participate in the counselling, if ultimately number of candidates are given promotion, based on the seniority list, which is impugned hereon, all such promotions including the promotion to be given to the petitioner shall be subject to the outcome of this writ petition.
(iii)It is further directed that the respondents shall place this 10/17 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.12453 & 16919 of 2018 & CONT.P(MD)No.947 of 2019 order in the Notice Board of all the counselling centers conspicuously and also must add a sentence in the order to be given for promotion to various candidates that, such promotion shall be subject to outcome of the decision to be made in writ petition No. 12453 of 2018 and also must state that once the Court decides, http://www.judis.nic.in otherwise, the person, who got such promotion shall not claim any equity on the basis of the promotion given now.
16.With the above direction, this miscellaneous petition is disposed of. No costs. This Court feel that this interim order would substantially meet the ends of justice.”
3.The learned counsel for the petitioner would submit that, since the petitioner is also similarly placed, the said benefit of interim order can be extended to the petitioner herein also, as she would also be considered, based on the marks she obtained and not based on the ranking given by the TRB on the basis of communal rotation. The said position, at least prima facie, is not in dispute, as the learned Special Government Pleader submitted that the said order granted by this Court in the aforesaid writ petition can be extended to the petitioner also. In view of the said position, there shall be a similar order in this petition also, insofar as the petitioner is concerned.
4.Accordingly this miscellaneous petition is disposed of.”
6. The facts as stated in W.P.(MD)No.16919 of 2018 are that the petitioner is comparing with the said Tamilselvi and some candidates are given as detailed below:
7. The respondents have not filed any counter affidavit, but submitted that 11/17 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.12453 & 16919 of 2018 & CONT.P(MD)No.947 of 2019 already the selection was over, based on the 200 point roster and the selection list as prepared by TRB is followed for the purpose of seniority also.
8. Heard Mr.H.Mohammed Imran, learned Counsel appearing for the petitioners and Mr.S.P.Maharajan, learned Special Government Pleader appearing for the respondent Nos.1,2 & 4 and Mr.V.P.Shamuganathan, learned Counsel appearing for the third respondent.
9. The issue of fixing rank for the purpose of seniority was already considered by the Hon’ble Supreme Court in three member Bench in Bimlesh Tanwar's case stated supra, wherein, it has been categorically held that roster ought to be followed while selection. Thereafter, the rank has to be assigned based on the merit and the relevant portion is extracted hereunder:
“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 roster points. It that is done, the rule of affirmative action would by extended which would strictly not be in consonance of the constitutional schemes. We are of the 12/17 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.12453 & 16919 of 2018 & CONT.P(MD)No.947 of 2019 opinion that the decision in P.S.Ghalaut does not lay down a good law.”
10. The petitioner has also relied on K.R.Shanthi’s case as stated supra and the relevant portion of the judgment is extracted hereunder:
16. But the correctness of the said judgment was doubted in a subsequent case before a Larger Bench of Three Hon'ble Judges of the Hon'ble Supreme Court in Bimlesh Tanwar Vs. State of Haryana reported in (2003) 5 SCC 604. After critically analyzing P.S.Ghalaut case (cited supra), the Larger Bench overruled P.S.Ghalaut case. In paragraph 40 of the judgment, the Hon'ble Supreme Court has held as follows:
"40. An affirmative action in terms of Article 16(4) of the Constitution is meant for providing a representation of 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 roster 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 in P.S. Ghalaut does not lay down a good law." (Emphasis added)
17. In paragraph No.52 of the said judgment, the Hon'ble Supreme Court has further held as follows:
"52. In this case also, although there does not exist any statutory rule but the practice of determining inter se seniority on the basis of the merit list has been evolved on interpretation of the Rules. A select list is prepared keeping in view the respective merit of the candidates. Not only appointments are required to be made on the basis of such merit list, seniority is also to be determined on that basis as it is expected that the candidates should be joining their respective posts almost at the same time......" (Emphasis added) 13/17 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.12453 & 16919 of 2018 & CONT.P(MD)No.947 of 2019
18. From the above judgments, it is crystal clear that Roster is, inter alia, used to identify the number of vacancies available to various categories including the open quota in the current selection and thereafter, the selection should be made only on merit and a candidate selected on merit under the open quota should not be adjusted against the reserved vacancy. The inter se seniority of the candidates selected and appointed in that selection should be only on merits and not on the basis of the roaster points.
11. Therefore this Court if of the considered opinion that by following the Hon’ble Supreme Court's judgment in Bimlesh Tanwar’s case the respondents ought to have assigned the rank based on the marks. The contention of the petitioner is that for the subsequent years the respondents have assigned the ranks based on marks and only for this particular year the respondents have failed to assign any rank. Therefore, the respondents are directed to assign rank based on the merits of the candidates. The interim order granted by this Court has already indicated that the promotion would be subject to the outcome of the writ petition. Since the writ petition is allowed, any promotion granted as per the impugned list based on the roster ought to be reverted and the promotion ought to be considered as per the rank only. Therefore, the promotion granted to any individuals based on the 200 point roster shall be cancelled after issuing proper notice to the 14/17 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.12453 & 16919 of 2018 & CONT.P(MD)No.947 of 2019 particular individuals. The said exercise shall be carried out by the respondents within a period of eight weeks from the date of receipt of the copy of the order.
12. With the above direction, both the Writ Petitions are allowed. The Contempt Petition No.947 of 2019 is filed alleging disobedience of interim order. Since this Court has allowed the writ petitions with the consequential direction to revert the promotion, the petitioners’ rights are protected. Hence this Court is of the considered opinion that there is no contempt as alleged. Hence the contempt petition is closed. No costs. Consequently, connected miscellaneous petitions are closed.
04.08.2022 Index : Yes / No Internet : Yes jbr Note:
In view of the present lock down owing to 15/17 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.12453 & 16919 of 2018 & CONT.P(MD)No.947 of 2019 COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the Advocate/litigant concerned.
To
1. The State of Tamil Nadu represented by its Secretary, School Education Department, Fort St.George, Chennai – 600 009.
2. The Director of School Education, DPI Campus, College Road, Chennai – 600 006.
3. Teachers Recruitment Board, represented by its Member – Secretary, DPI Campus, College Road, Chennai – 600 006.
4. The Chief Educational Officer, O/o.the Chief Educational Office, Virudhunagar, Virudhunagar District.
S.SRIMATHY, J 16/17 https://www.mhc.tn.gov.in/judis W.P.(MD)Nos.12453 & 16919 of 2018 & CONT.P(MD)No.947 of 2019 jbr Pre-delivery Order made in W.P.(MD)Nos.12453 & 16919 of 2018 and CONT.P(MD)No.947 of 2019 04.08.2022 17/17 https://www.mhc.tn.gov.in/judis