Madras High Court
R.Yathavamoorthi vs Government Of Tamil Nadu on 23 April, 2013
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23/04/2013
CORAM
THE HON'BLE MR. JUSTICE T.S.SIVAGNANAM
W.P.(MD) No.10775 of 2010
&
W.P.(MD) No.5537 of 2010
R.Yathavamoorthi ... Petitioner in both W.Ps.,
vs
1.Government of Tamil Nadu,
Rep. by its Secretary,
Personnel and Administrative Reforms Dept.,
Fort St. George, Chennai -600 005.
2.The Vice Chancellor,
Tamil Nadu Veterinary and Animal
Sciences University,
Madhavaram Milk Colony,
Chennai - 600 051.
3.The Registrar,
Tamil Nadu Veterinary and Animal
Sciences University,
Madhavaram Milk Colony,
Chennai - 600 051. ... 1 to 3 Respondents in both W.Ps.
4.The Selection Committee,
For recruitment of Asst. Professors
Fish Processing Technology,
Rep. by its Chairman,
Tamil Nadu Veterinary and Animal
Sciences University,
Madhavaram Milk Colony,
Chennai - 600 051. ... fourth Respondent in
W.P.No.10775 of 2010
4.The Dean
(Chairman, Selection Committee),
Fisheries College & Research Institute,
Tuticorin - 628 008. ... fourth Respondent in
W.P.(MD) No.5537 of 2010
5.Miss.B.Chrisolite ... fifth Respondent in both W.Ps.
Prayer in W.P.No.10775 of 2010
The Writ Petition filed under Article 226
of the Constitution of India for issue of Writ of Declaration to declare that
the process adopted and criteria followed in awarding marks for the selection
for the post of the Assistant Professor, Fisheries Sciences Faculty in Fish
Processing Technology under General Turn priority category (GTP) in Tamil Nadu
Veterinary and Animal Sciences University in pursuance of the advertisement
No.2/2009, dated 29.11.2009, as illegal and to issue direction to the
respondents 1 to 4 to award the marks by adopting pro-rata mark system and
normalisation method in so far as the petitioner is concerned and to further
direct the respondents 2 to 4 to select and appoint the petitioner who is the
only candidate applied under the category of GT priority.
Prayer in W.P.No.5537 of 2010
The Writ Petition filed under Article 226 of the
Constitution of India for issue of Writ of Certiorarified Mandamus, to call for
the records from the respondents 3 and 4 relating to the selection for the post
of the Assistant Professor, Fisheries Sciences Faculty in Fish Processing
Technology under General Turn Priority category (GTP) in Tamil Nadu Veterinary
and Animal Sciences University as intimated by the third respondent by his
letter No.7150/R.3/ 2010, dated 8.4.2010, and quash the same and consequently
direct the respondents 2 and 3 to select and appoint the petitioner who is the
only candidate applied under the category of GT priority.
!For Petitioner ... Mr.S.Natarajan
^For Respondents... Mr.J.Gunaseelan Muthiah G.A for RR1,2&4
in W.P.No.10775 of 2010
for R1 & R2 in W.P.No.5537 of 2010
Mr.G.R.Swaminathan for R3
in W.P.No.10775/10
for R3&R4 in W.P.No.5537 of 2010.
Mr.M.Gnanagurunathan for R5 in both W.Ps.
:COMMON ORDER
In both these writ petitions, the petitioner is the same person and it concerns his claim for appointment to the post of Assistant Professor, Fisheries Sciences Faculty in Fish Processing Technology under General Turn Priority category (GTP) in the Tamil Nadu Veterinary and Animal Sciences University and therefore, they were heard together and are disposed of by this common order.
2. In W.P.No.5537 of 2010, the petitioner has sought for issuance of a writ of Certiorified Mandamus, to quash the intimation given by the third respondent, dated 08.04.2010, intimating the petitioner that the Selection Committee did not recommend his name for the post of Assistant Professor in the said department.
3. In W.P.No.10775 of 2010, the petitioner has sought for a declaration to declare that the process adopted and criteria followed in awarding marks for the selection for the post of Assistant Professor in the said department pursuant to the notification dated 29.11.2009 is illegal and to award marks to the petitioner by adopting pro-rata mark system and normalization method and for a further direction to select and appoint the petitioner in the said post under the category of General Turn Priority.
4. I have heard Mr.S.Natarajan, learned counsel appearing for the petitioner, Mr.J.Gunaseelan Muthiah, learned Government Advocate appearing for the respondents 1, 2 & 4, Mr.G.R.Swaminathan, learned counsel appearing for the respondent University and Mr.M.Gnanagurunathan, learned counsel appearing for the fifth respondent, the candidate who has been selected for the said post and perused the materials available on record.
5. It is stated that the fifth respondent was already appointed and noticing the same, this Court by order dated 22.04.2010, while entertaining W.P.No.5537 of 2010, made it clear that the selection of the fifth respondent under the impugned selection process shall be subject to the final orders in the writ petition and there shall be an order of interim injunction against the respondents 2 & 3, if the fifth respondent has not joined the post. In view of the same, no right has been conferred on the fifth respondent by virtue of the selection and the same shall be subject to the final verdict in these writ petitions.
6. The petitioner has completed his Bachelor of Fisheries Sciences (B.F,Sc.,) and acquired his post graduate qualification in M.F.Sc., from the Central Institute of Fisheries Technology established by the Indian Council of Agricultural Research. The respondent University by public notification dated 29.11.2009, called for applications for appointment to 42 posts of Assistant Professors in various disciplines/department in the University. In these writ petitions, we are concerned with the discipline Fish Processing Technology, which was listed as serial No.24 of the notification dated 29.11.2009. The total number of posts in the said department was three and with regard to reservation, it was mentioned that General Turn Priority, SC -Arunthathiar on preferential basis-woman-Destitute Widow (priority), MBC/DC (priority). Thus, as per the notification one seat is earmarked for GTP category and one for SC Arunthathiyar on preferential basis Woman/Destitute Widow priority and the third one for Most Backward community/ De-notified Community (priority). The petitioner is a son of an Ex-Serviceman and he falls under the priority category for giving employment. The petitioner has placed reliance on the G.O.Ms.No.1161, Personnel and Administrative Reforms Department, dated 22.11.1984, by which the son or daughter or wife or dependants of Ex-Serviceman fall under the priority category. The fact that the petitioner is entitled to the benefit under the priority category is not in dispute. The petitioner applied for selection along with his credential and he was called to attend an interview on 12.03.2010.
7. The petitioner would further state that he was the only candidate who applied under the GTP category and answered all the questions, which were posed by the Interview Committee. However, the petitioner was not intimated the result of such selection process. Therefore, the petitioner applied under the Right to Information Act requesting for details about the list of candidates, who applied and selected under the GTP category. From the information furnished under the RTI Act, the petitioner came to know that the fifth respondent who is an non priority candidate has been selected on the ground that suitable and sufficient number of candidates were not available in the GTP category and therefore, a non priority candidate was considered. With the above facts, the petitioner has sought for quashing the intimation received by him from the third respondent, dated 08.04.2010, stating that the Selection Committee has not recommended him for the selection to the post of Assistant Professor in the said discipline.
8. The learned counsel appearing for the petitioner submitted that the reason for rejection as intimated to the petitioner in the communication dated 07.04.2010, is wholly unsustainable and illegal. That the fifth respondent is not a priority candidate and the petitioner is the only candidate under the GTP category and therefore, the comparison of the petitioner with that of the fifth respondent (non priority candidate) does not arise. By selecting the fifth respondent, the reservation/priority given to the children of Ex-Serviceman has been done away with and it has been defeated by the action of the respondent University. Further, the learned counsel submitted that G.O.Ms.No.541, relied on by the respondent University to non-suit the petitioner is not applicable to the impugned selection and even as per G.O.Ms.No.541, only in case suitable and sufficient number of candidates are not available in the priority candidates, candidates from the non priority category should be considered for the priority vacancy. Such contingency has not arisen, since the petitioner who was eligible and suitable candidate was available and he ought to have been selected.
9. Further, in the impugned proceedings, a reference has been made to G.O.Ms.No.762 and the same does not apply, since it pertains to providing employment to Ex-Serviceman and G.O.Ms.No.1161, alone is applicable, which relates to priority for the children of Ex-Servicemen. Further, it is contended that the respondent University has stated that all candidates, who applied both under the priority and non priority category were interviewed and assessed for all the three vacancies notified and the fifth respondent was selected. It is submitted that this is not the procedure to be followed, when the vacancy available is under the priority category. Further, the learned counsel submitted that recruitment solely based upon the interview marks has been held to be illegal and in this regard, reference was made to the decision of the Hon'ble Supreme Court in Ashok Kumar Yadav vs. State of Haryana, [AIR 1987 SC 454]. That apart, the petitioner made elaborate reference to the academic distinctions, the petitioner has obtained and various other credential, which he possess, which cannot be ignored by the respondent University and failure to select the petitioner is wholly illegal.
10. As noticed above, W.P.No.5537 of 2010, came for admission before this Court on 22.04.2010 and notice of motion was ordered to the respondents and an interim direction was also given. During the pendency of the writ petition, the petitioner sought for information from the respondent University to know about the system of marking, which was followed by the Selection Committee in respect of candidates, who attended the interview. On coming to know about the manner in which the marks were awarded for the selection, the petitioner filed W.P.No.10775 of 2010, to declare the manner of awarding marks as illegal and to direct the respondents 1 to 4 to adopt pro-rata mark system and normalization method with regard to the petitioner. The petitioner would state that the manner in which marks were awarded, was not known earlier and only after the filing of W.P.No.5537 of 2010, he was able to secure information and therefore, the second writ petition was filed for a declaratory relief as stated supra.
11. It is submitted by the learned counsel for the petitioner that the total marks fixed is 100 and 40 marks have been fixed as eligibility mark. As per the key to the answer system 30 marks are fixed and interview 10 marks for UG degree and 20 marks for PG degree. For the academic marks the Overall Grade Point Average (OGPA) is fixed and marks are awarded for the same. It is submitted that as per the key to marks announced by the respondent University, the OGPA is assessed out of 10 marks, if a candidate has obtained a OGPA of 8.0 out of 10.00 no marks are awarded for selection. If a candidate has obtained 8.2 out of 10.00, he is awarded 4 marks. In the under graduate level, the total assessment is for 10 marks and if a candidate has obtained 7.0 out of 10.00, no mark is awarded and a candidate securing 7.4 out of 10.00 is awarded 2.00 marks. The petitioner would state that for the Post Graduate qualification possessed by him, his OGPA is 8.16 out of 10.00. This OGPA being above 8.0, the petitioner would contend that he was entitled to pro-rata mark, but the respondent University did not give any mark to the petitioner. The petitioner has pointed out the various instances in which pro-rata mark was awarded to other candidates, who have secured above 8.0 and below 8.2. Therefore, it is contended that if pro-rata mark has been given to the petitioner, he could not have been awarded nil mark and consequently, the manner in which the marking has been done is illegal. Further, it is contended that the normalization method to be adopted has not been followed and the petitioner's non-selection is illegal.
12. The learned counsel appearing for the respondent University sought to sustain the selection of the fifth respondent by filing a counter and typed set of papers containing G.O.Ms.No.541, key to marks, the scorecard of the petitioner and the fifth respondent. As stated in the impugned order, reliance has been placed on G.O.Ms.No.541, stating that there is no error in the selection process by interviewing both the priority and non-priority candidates as sufficient number of candidates were not available in the priority category. Sofar as assigning of pro-rata marks and awarding any mark to the petitioner, though he secured OGPA of 8.16, the respondent would state in their counter affidavit that the Selection Committee has not decided in awarding marks on pro- rata basis and the petitioner cannot demand to award marks on pro-rata as a matter of right and it is purely at the discretion of the Selection Committee, which decides the pattern of awarding the marks. Further, it is stated that the post of Assistant Professor comes under Group-B and there is no specific order of the Government for reserving a vacancy in the priority category as far as the candidates falling under Group-B. Therefore, it is contended that the non selection of the petitioner was proper.
13. The fifth respondent has not filed any counter affidavit, but in the course of arguments adopted the stand taken by the respondent University.
14. Two questions fall for consideration in this writ petition. Firstly, whether a post, which was earmarked for a GTP category could have been filled up by a non-priority category candidate. Secondly, whether the non awarding of marks on pro-rata basis for the Post Graduate qualification secured by the petitioner is illegal, violative of Articles 14 & 16 of the Constitution.
15. The notification issued by the respondent University makes it abundantly clear that in the concerned discipline, there were three posts, which were advertised. Out of three posts, one post was reserved for GTP category. Therefore, unless and until there are no candidates under the GTP category the said vacancy/post could have been filled up by a non-priority candidate. This situation does not factually exist in the case on hand, since the petitioner was a GTP category candidate. The reservation contemplated in the notification is sought to be diluted by the respondent University by relying upon the G.O.Ms.No.541. The said Government order was issued by the Personnel and Administrative Reforms Department relating to recruitment through employment exchange for appointment of candidates between priority and non-priority category revising the ratio. Therefore, the Government order in G.O.Ms.No.541 having not been extended to the impugned selection nor shown to have been adopted by the respondent University cannot be relied upon.
16. Furthermore, the Government order stated that if sufficient number of candidates are not available in the priority category, candidates from the non- priority category should be considered for appointment against those vacancies such contingency does not arise in the case on hand. Therefore, reliance was placed on G.O.Ms.No.541, is wholly misconceived.
17.Further, the respondent University placed reliance on G.O.Ms.No.762, issued by the Public (Ex-Serviceman) Department which deals with reservation of 5% of vacancies for Ex-Serviceman, Group-C posts in State Government service. Firstly, the said Government order relates to reservation of 10% vacancy in Tamil Nadu Basic Service for Ex-Serviceman and it has absolutely no application to the facts of the present case, which relates to recruitment to the post of Assistant Professor in the respondent University for a son of an Ex-Serviceman, which is admittedly a priority category as per the Government order in G.O.Ms.No.1161, dated 22.11.1984. Therefore, the impugned proceedings dated 07.04.2010, is out come of non-application of mind. Once we steer clear of this quasi legal and factual position, the only conclusion that could be arrived at is that the petitioner's candidature could not have been compared with that of the fifth respondent and the question of comparative analyzes does not arise, because the fifth respondent is a non-priority candidate. Therefore, the stand taken by the respondent is wholly illegal.
18. Next we come to the manner in which the marks were allotted. The following tabulated statement of the comparative assessment between the petitioner and the fifth respondent:-
Sl.No. Criteria Marks obtained by the petitioner Marks obtained by the 5th respondent
1. Qualification 6.0* 30.0**
2. ICAR/CSIR-SRF/JRF Fellowship 2.0
-
3.
Medals/Awards/NCC Sports
-
5.0
4. Publications 8.25 6.0
5. Conference/Seminar/Training participated 2.0 0.5
6. Papers/Abstracts presented in conference 2.0 1.0
7. Research
-
2.0
8. Experience 5.0 5.0
9. Viva-voce 13.0 15.0 Total 38.25 64.5 *Overall Grade Point Average obtained by the petitioner in UG is 8.3 out of 10, he was awarded 6 marks. In PG he obtained 8.16 out of 10 and he is not eligible for any marks.
**Overall Grade Point Average obtained by the 5th respondent in UG is 9.1 out of 10, she was awarded 10. In PG she obtained 9.6 out of 10 and she is awarded 20 marks.
19. From the above tabulation, it is seen that the petitioner has scored higher marks than the fifth respondent in sofar as ICAR/CSIR-SRF/JRF Fellowship, publications, conference/seminar/training participated and papers presented in conference. The fifth respondent has got more marks under the category awards research and Viva voce. Sofar as experience both the petitioner and the fifth respondent have secured same marks. The only with regard to qualification, the petitioner has been awarded only 6 marks, whereas the fifth respondent has awarded 30 marks, though in the preceding paragraphs, this Court has held that there cannot be any comparison between the petitioner and the fifth respondent on account of the fact that the fifth respondent is an non-priority candidate, yet when the petitioner has challenged the manner in which marks were awarded, this Court has embarked upon such exercise. It is stated that the petitioner obtained OGPA in UG degree as 8.3 out of 10 marks and therefore, he was awarded 6 marks as per the key to marks and in PG degree, he obtained OGPA of 8.16 out of 10 and it is stated that he is not eligible for any mark and the fifth respondent having secured 9.6 OGPA for PG degree, she was awarded 20 marks and 10 marks for UG degree and in all 30 marks. It has to be now seen as to whether even though the petitioner secured 8.16 whether he can be awarded nil mark, when cut off limit is 8.0.
20. Thus, by virtue of awarding nil mark, the acquisition of Post Graduate qualification by the writ petitioner has appeared to have been rendered redundant. The manner in which the marking has been awarded is illogical. If as per key to marks published by the respondent University nil mark is awarded for a person secured 8.0 OGPA and four marks are awarded for a person securing 8.2 OGPA, a candidate who securing mark over 8.0 and below 8.2 cannot be left without awarding any mark, rather key to marks does not contain any such restriction stating that no mark will be awarded for a person, who has secured OGPA above 8.0 and below 8.2 marks. Even assuming there was such a procedure followed by the respondent University, it has to be termed to be wholly illegal. The petitioner is entitled to pro-rata mark in the OGPA secured by him namely 8.16. The petitioner sought for information under the RTI Act as to whether proportionate marks were awarded by the respondent University in respect of selection under the same recruitment notification and from the reply dated 22.11.2010, and 14.12.2010, it is seen that the following candidates, who have secured 8.3 out of 10 in the UG qualification have been awarded marks, namely A.Karthiayani, Agri and Food Process Engineering Discipline, G.Arul Oli Fisheries Extension Discipline. In the OGPA for P.G., qualification, the following candidates have been awarded marks for having secured marks such as 8.15, 8.197 & 8.259 and the names of the candidates are G.Srinivasan (DCAPS), R.Ramesh (Surgery) and S.Bagyaraj (PSc). Therefore, there is no justifiable reason given by the respondent, not to award marks to the petitioner, who has secured 8.16 out of 10.00 OGPA for his P.G. degree. Therefore, the petitioner ought to have been awarded 3.6 marks for his post graduate qualification and if the same is awarded, the petitioner secures total marks of 41.85 (38.25 + 3.6) and he is above the cut off and therefore, he ought to have been selected under the GTP category. Though the petitioner is entitled to succeed on these grounds, this Court has to point out that in the impugned selection, 30 marks have been fixed for viva voce is not proper.
21. The Hon'ble Supreme Court in the case of Ashok Kumar Yadav, referred supra, while observing that there cannot be any hard and fast rule regarding the precise weight to be given to the viva voce test as against the written examination. It must vary from service to service according to the requirement of the service, the minimum qualification prescribed, the age group from which the selection is to be made, the body to which the task of holding the viva voce test is proposed to be entrusted and a host of other factors. It is essentially a matter for determination by experts, held that fixing of 33.3% for viva voce for Ex-service officers and 22.2% for general category was unduly high and suffered from the vice of arbitrariness as the same would tend to become a determining factor in the process of selection, tilting the scales based on the marks awarded in the viva voce test and a direction was issued to the Haryana Public Service Commission directing that the marks allocated for the viva voce shall not exceed 12.2% in case of candidates belonging to general category and 25% in the case of Ex-serviceman officer. By applying the decision of the Hon'ble Supreme Court in the case on hand, the allocation for 35% for viva voce in the impugned selection was not proper. However, this Court does not propose to go into that aspect, as it is fully convinced that the non-selection of the petitioner was unreasonable, arbitrariness and wholly illegal.
22. In the result, W.P.No.5537 of 2010 is allowed and the proceedings of the third respondent in letter No.7150/R3/2010, dated 08.04.2010, insofar as it relates to appointment of the fifth respondent is quashed, consequently the reason assigned by the third respondent in his letter No.10598/R3/2007, dated 07.04.2010, is held to be illegal and the respondents 2 to 4 are directed to consider and appoint the petitioner in the post of Assistant Professor in the Fish Processing Technology discipline of the third respondent University within a period of three weeks from the date of receipt of a copy of this order. Since the selection and appointment of the fifth respondent was subject to the result in this writ petition, the fifth respondent shall have no right to hold the said post. Insofar as the relief sought for in W.P.No.10775 of 2010, the same is disposed of in view of the observations made in this order holding that the respondents 2 to 4 are bound to award pro-rata mark for the petitioner while calculating the OGPA.
23. In the result, W.P.No.5537 of 2010 is allowed and W.P.No.10775 of 2010, is disposed of accordingly. No costs. Consequently, connected miscellaneous petitions are closed.
pbn Copy to:-
1.Government of Tamil Nadu, Rep. by its Secretary, Personnel and Administrative Reforms Dept., Fort St. George, Chennai -600 005.
2.The Vice Chancellor, Tamil Nadu Veterinary and Animal Sciences University, Madhavaram Milk Colony, Chennai - 600 051.
3.The Registrar, Tamil Nadu Veterinary and Animal Sciences University, Madhavaram Milk Colony, Chennai - 600 051. .
4.The Selection Committee, For recruitment of Asst. Professors Fish Processing Technology, Rep. by its Chairman, Tamil Nadu Veterinary and Animal Sciences University, Madhavaram Milk Colony, Chennai - 600 051.
5.The Dean (Chairman, Selection Committee), Fisheries College & Research Institute, Tuticorin - 628 008.