Madras High Court
M.Gurunathan vs The Government Of Tamil Nadu on 1 June, 2023
Author: J.Nisha Banu
Bench: J.Nisha Banu
W.P.Nos.28475 & 33352 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 03.04.2023
PRONOUNCED ON : 01.06.2023
CORAM :
THE HONOURABLE MRS. JUSTICE J.NISHA BANU
W.P.Nos.28475 & 33352 of 2013
and W.M.P.No.4152 of 2016, M.P.Nos.1 to 3 of 2013 & M.P.1 of 2013
M.Gurunathan ... Petitioner in
W.P.No.28475 of 2013
K.Radhakrishnan ... Petitioner in
W.P.No.33352 of 2013
Vs.
1. The Government of Tamil Nadu,
Rep. By its Chief Secretary,
Fort St.George,Chennai 600 009
2. The Government of Tamil Nadu,
Rep. By its Principal Secretary,
Home Department,
Fort St.George,Chennai 600 009
3. The Government of Tamil Nadu,
Rep. By its Principal Secretary,
Public Department, Fort St.George,Chennai 600 009
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W.P.Nos.28475 & 33352 of 2013
4. The Secretary,
Tamil Nadu Public Service Commission,
Frazer Bridge Road,
V.O.C.Nagar, Chennai 600 003 … RR 1 to 4 in
W.P.No.28475 of 2013
& R4 in W.P.No.33352 of 2013
PRAYER in W.P.No.28475 of 2013: Writ Petition filed under Article 226 of
Constitution of India, praying for issuance of Writ of Certiorarified Mandamus,
to call for the records pertaining to the impugned provisional selection list for
appointment of Assistant Public Prosecutor Grade II (2010-2011) through the
proceedings NIL dated 03.04.2013 issued by the fourth respondent and quash the
same and consequently direct the respondents to consider the petitioner
candidature and to appoint the petitioner in the post of Assistant Public
Prosecutor Grade II (2010-2011) in the Tamil Nadu General Service under
Physically Challenged Quota in view of the judgment of this Court reported in
(2013) 5 MLJ 438.
PRAYER in W.P.No.33352 of 2013: Writ Petition filed under Article 226 of
Constitution of India, praying for issuance of Writ of Mandamus, to direct the
respondent to select and appoint the petitioner (Reg No.02502242) to the post of
Assistant Public Prosecutor-Grade II under Physically Handicapped Quota based
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W.P.Nos.28475 & 33352 of 2013
on merit in selection in pursuant to Notification No.6/2012 dated 02.04.2012
issued by the respondent with all consequential and other attendant benefits
within a time frame to be fixed by this Court.
In both cases:
For Petitioner in :Mr.P.Vijendran
W.P.No.28475/2013
For Petitioner in :Mr.S.Nedunchezhiyan
W.P.No.33352/2013
For RR 1 to 3 in :Mr.U.M.Ravichandran
W.P.No.28475/2013 Special Government Pleader
For R4 in W.P.No.28475 : Mr.R.Bharanidharan,
of 2013 & sole respondent Standing Counsel
in W.P.No.33352/2013
COMMON ORDER
Aggrieved against the non-bearing of the petitioners' name in the provisional selection list for appointment of Assistant Public Prosecutor Grade II (2010-2011), issued vide proceedings NIL dated 03.04.2013 by the fourth respondent-TNPSC, the petitioners have preferred the present writ petitions. ______________ Page No.3 of 14 https://www.mhc.tn.gov.in/judis W.P.Nos.28475 & 33352 of 2013
2. Since the issue involved in both the writ petitions are one and the same, they are disposed of by this common order. Both the petitioners have made detailed submissions and it is necessary that the same is dealt with.
(i) The fourth respondent-TNPSC invited applications for the post of Assistant Public Prosecutor, Grade II (2010-2011) for a total number of 47 vacancies through Direct Recruitment vide Notification No.06/2012 dated 02.04.2012. The petitioners have applied for the same and got qualified in the written examination.
(ii) The petitioner in W.P.No.28475 of 2013 was called for certificate verification and oral test on 01.04.2013 and 02.04.2013 and on scrutiny, TNPSC refused to accept the disability certificate produced by him and insisted him to obtain a certificate issued by a team comprising of 3 doctors. For the said procedure, he was granted a week's time. As required, the petitioner obtained the required Disability Certificate from a team of 3 doctors and sent the same ______________ Page No.4 of 14 https://www.mhc.tn.gov.in/judis W.P.Nos.28475 & 33352 of 2013 through courier on 05.04.2013.
(iii) The petitioner in W.P.No.33352 of 2013 was also called to attend the certificate verification on 05.08.2013, under PSTM. During the certificate verification, he was informed that the vacancy is under Physically Disabled Quota and was called upon to produce the medical certificate. Accordingly, he sent it through registered post on 05.08.2013.
(iv) The petitioners state that when TNPSC had granted a week's time, for the purpose of submitting the required disability certificate, the provisional list of selected candidates has been published in the official website of the TNPSC, containing the names of 40 persons, which did not contain the name of the petitioners.
(v) The petitioner in WP.28475/2013 belongs to Scheduled Caste (Adi Dravidar) community and he is also a differently-abled person with 55% of orthopedic disability, similarly, petitioner in WP.33352/2013 claim reservation ______________ Page No.5 of 14 https://www.mhc.tn.gov.in/judis W.P.Nos.28475 & 33352 of 2013 under PSTM and disability (ortho) category. It is submitted that the impugned provisional list published by the fourth respondent, is subject to reconsideration.
3. Per contra, 4th respondent filed counter affidavit and the learned Special Government Pleader appearing for the respondents reiterating the averments in the counter, would submit that TNPSC follows the Rule of Reservation that was prevailing in the State of Tamil Nadu in terms of Rule 22 (aa) of the Tamil Nadu State and Subordinate Service Rules, and Schedule-III-A, in the matter of recruitment. In the present recruitment of Assistant Public Prosecutor Grade II (2010-2011), according to the 200 point rotation on reservation by which 2 turns/vacancies were earmarked for Differently-abled persons, namely (1) MBC/DC (G) (DA) (Deaf) and (2) SC (G) (DA) (Deaf) only. That apart, the TNPSC cannot include Differently-Abled persons, having any other kind of disability, like that of the petitioners herein, since such category of vacancies for ______________ Page No.6 of 14 https://www.mhc.tn.gov.in/judis W.P.Nos.28475 & 33352 of 2013 the disabilities specifically earmarked reservation fell vacant, it would be carried forward and notified in the forthcoming recruitments, according to the 200 point rotation on reservation. The above position has been later included in Section 27
(b) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016.
4. The learned Special Government Pleader would submit that the petitioner in WP.28475 of 2013 belongs to Scheduled Caste (General) category and has claimed disability (ortho) category. Since there was no turn ear-marked for differently abled (Ortho) candidate, the representation of the petitioner could not be considered against physically handicapped reservation. As far as the Petitioner in WP.33352/2013, is concerned, he claims that he studied the Law course in Tamil Medium but in his letter dated 1.04.2013, it is stated that he had wrongly quoted the medium of instruction of his B.L. degree course as 'Tamil'. Therefore, in view of the fact that the medium of instruction of the petitioner in ______________ Page No.7 of 14 https://www.mhc.tn.gov.in/judis W.P.Nos.28475 & 33352 of 2013 WP.33352/2013 in his B.L. degree course was not Tamil, he could not be considered against the vacancies reserved for persons under PSTM.
5. It is submitted by the learned Special Government Pleader that the petitioner in WP.28475/2013 had claimed in his application that he belongs to differently-abled (D.A.) Ortho category, but, since he did not submit proper Disability Certificate, he was directed to produce the proper Disability Certificate to decide the physical fitness of the petitioner for the post. However, initially he was admitted to the oral test against SC (General) - PSTM vacancy and he was considered only under the SC (G) category. However, the last candidate admitted to the oral test under SC (General) category had secured 170.50 marks in the written examination, whereas the petitioner had secured only 165.00 marks in the written examination, the petitioner in WP.28475 of 2013 was ineligible for admission to the oral test. Hence, the petitioners' candidature was not considered ______________ Page No.8 of 14 https://www.mhc.tn.gov.in/judis W.P.Nos.28475 & 33352 of 2013 for further selection process.
6. The learned Special Government Pleader would submit that in the present recruitment, only 2 turns/vacancies were earmarked and those were for MBC/DC (G) (DA) (Dead) & SC (G) (DA) (Deaf). Due to non-availability of candidates in the categories of MBC/DC (General) Differently Abled (Deaf) and SC (General) Differently Abled (Deaf), the said two vacancies could not be filled up. Hence, the said two vacancies have been carried forward to the next recruitment in terms of Section 36 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
7. In respect of petitioner in WP.33352 of 2013 is concerned, it is submitted by the learned Special Government Pleader that vacancies reserved for Persons studied in Tamil Medium (PSTM), selection in respect of 8 PSTM ______________ Page No.9 of 14 https://www.mhc.tn.gov.in/judis W.P.Nos.28475 & 33352 of 2013 vacancies have been finalized on 21.11.2013 and that only due to his wrong claim in his on-line application that he studied his B.L.degree course in Tamil Medium, he was called to attend certificate verification, otherwise, he could not have been admitted to the oral test on 05.08.2013. Since the petitioner is ineligible for admission to the oral test itself, he has nothing to do with the filling up or non filling up of the PSTM and other vacancies.
8. Heard both sides and perused the records carefully.
9. Admittedly, it is seen that the petitioner in WP.28475/2013 belongs to Scheduled Caste (General) category and also differently able ortho category and seeks consideration under the two vacancies apportioned to differently abled persons under the reservation viz., (1) MBC/DC(deaf) abd (2) SC(deaf). Likewise, petitioner in WP.33352/2013 who claims that he studied under PSTM ______________ Page No.10 of 14 https://www.mhc.tn.gov.in/judis W.P.Nos.28475 & 33352 of 2013 and disability (ortho) category, seeks consideration under the vacancy ear marked for the above said differently abled persons under the reservation. It is specifically pointed out in the counter affidavit filed by the 4th respondent that two vacancies have been apportioned to differently abled persons under the reservation viz., (i) MBC/DC(deaf) and (ii) SC(deaf) and that TNPSC has to necessarily follow the rule of reservation and recruit candidate as per the reservation prescribed under Rule 22 (aa) of the Tamil Nadu State and Subordiante Service Rules and that TNPSC cannot by itself automatically change the allocation of the reservation category from one to another. As no suitable persons were available for section in the MBC/DC(deaf) and SC (deaf) categores, the said two vacancies have been carried forward to the next recruitment and as such there is no violation of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. ______________ Page No.11 of 14 https://www.mhc.tn.gov.in/judis W.P.Nos.28475 & 33352 of 2013
10. In the light of the above, it is clear that Reservation is Government Policy. Without approval of the panel of TNPSC, reserved post could not be dereserved. Further, the process of selection has also been completed due to efflux of time. Therefore, the relief sought for by the petitioners cannot be entertained. Accordingly, the writ petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
01.06.2023
Index : Yes/No
Internet : Yes/No
Speaking Order : Yes/No
Neutral Citation : Yes/No
sts/nvsri
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W.P.Nos.28475 & 33352 of 2013
To:
1. The Chief Secretary,
Fort St.George,Chennai 600 009
2. The Principal Secretary,
Home Department,
Fort St.George,Chennai 600 009
3. Th Principal Secretary,
Public Department, Fort St.George,Chennai 600 009
4. The Secretary, Tamil Nadu Public Service Commission, Frazer Bridge Road, V.O.C.Nagar, Chennai 600 003 ______________ Page No.13 of 14 https://www.mhc.tn.gov.in/judis W.P.Nos.28475 & 33352 of 2013 J.NISHA BANU, J., sts/nvsri Common Order in W.P.Nos.28475 & 33352 of 2013 Dated:01.06.2023 ______________ Page No.14 of 14 https://www.mhc.tn.gov.in/judis