Madras High Court
The State Of Tamil Nadu vs S.Mariappan on 25 February, 2004
Author: F.M.Ibrahim Kalifulla
Bench: P.K.Misra, F.M.Ibrahim Kalifulla
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25/02/2004
CORAM
THE HONOURABLE MR.JUSTICE P.K.MISRA
AND
THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA
WRIT PETITIONS NO.17639 of 2001
AND
WRIT PETITION NOS. 17640 TO 17660 OF 2001
17822 TO 17826, 17827 TO 17830 18349 TO 18356,
17899 TO 17903 OF 2003 32253 TO 32255, 32499,
33135, 33136 22344, 22015, 23063, 34275 OF 2004 AND
ORIGINAL APPLICATION NOS.10211 & 10324 OF 1998
1354, 4693, 6796 OF 1999, 955, 4212, 5668, 5669,
5671,6659, 8616 OF 2000, 2557 , 6301, 6746 OF 2001
1920, 2189 2286, 2424, 3073, 3633, 3745, 3751
3999, 4194, 5001, 5142, 5518, 5546, 5687
5688 6412, 6429, 6458, 6459 OF 2002,
18, 19, 128 129, 330, 388, 389, 796, 2130,
2579, 2715, 3864 3929, 3930, 4084 OF 2003,
26, 78, 207, 1625 AND 1626 OF 2004
W.P.NO.17639 OF 2001
1. The State of Tamil Nadu,
rep. by its Secretary,
Home (Police V) Department,
Fort St.George, Chennai-9.
2. The Chairman,
Tamil Nadu Uniformed Services Recruitment Board,
No.4, 9th Cross Street,
Indira Nagar,
Chennai-20. .. Petitioners
-Vs-
1. S.Mariappan
2. The Registrar,
Tamil Nadu Administrative Tribunal,
Chennai-104. .. Respondents
For Petitioners :: Mr.N.R.Chandran,
Advocate General
assisted by
Mr.P.P.Shanmughasundar,GA
For Respondents :: Mr.K.Chandru, SC for
M/s.P.Subbaraj & K.Prem Kumar
in W.P.Nos.17645 & 17651/2001,
17826/2003,17825, 17827, 17828,
17829, 17899, 17900, 17901,
17902, 18532, 18354, 18355,
17822 of 2003
Mr.G.Masilamani, SC for
Mr. S.K.Chandrakumar in W.P.Nos.17823 & 17902 of 2003 for R1
Mr. Venkatachalapathy, SC for Mr.M.Sriram in W.P.No.18349 and 18351 of 2003
for R1
Mr.V.Ramasubramanian for R1 in W.P.Nos.17643, 17644, 17647, 17650, 17652,
17653, 17655, 17657 and 17660 of 2001
Mr.A.Thirumurthy for R1 in W.P.No.17658 of 2001
Mr.K.Venkataramani for R1 in W.P.No.17640, 17642, 17646, 17659, 17 826
of 2003 and for petitioner in W.P.Nos.22015, 23003 and 22344 of 2004
Mr.V.Ravikumar for R1 in W.P.No.18356 of 2003
Mr.L.Chandrakumar for R1 in W.P.No.17639, 17654 of 2001
Mr.V.R. T.L.Rama Mohan, SC
Mr. A.V.Arun
Prayer:-
These Writ Petitions are filed under Article 226 of the Constitution
of India praying for the issuance of Writ of Certiorari, for the relief as
stated therein in the respective Writ Petitions.
:COMMON ORDER
F.M.IBRAHIM KALIFULLA, J.
The Writ Petitions in W.P.Nos.17639 to 17660 of 2001, 17822 to 178 26, 17827 to 17830 18349 to 18356 and 17899 to 17903 OF 2003 have been filed by the State of Tamil Nadu and the Chairman of the Tamil Nadu Uniformed Services Recruitment Board, challenging the order of the Tamil Nadu State Administrative Tribunal, wherein, the Tribunal directed that the applicants in the Original Applications before it, who appeared for selection as Sub-Inspectors of Police from open market should be selected and appointed as Sub-Inspectors of police if they fulfill the other requirements of satisfaction of antecedents etc., and in respect of certain other applicants who appeared for selection, while serving in the Department as Police Constables and Head Constables should be selected and appointed as Sub-Inspectors of Police in the same manner. As regards the applicant in O.A.No.10161 of 1998, the Tribunal held that the tests including Physical Efficiency Test should be conducted within a period of three months from the date of its order, namely, 19-7-2001 and if that applicant secures the cut off marks or above, he should also be appointed as Sub-Inspector of Police within three months thereafter.
2. In W.P.Nos.32253 to 32255, 32499, 33135, 33136 22344, 22015, 230 63, 34275 of 2004 etc., some unsuccessful candidates who participated in the selection of Sub-Inspectors of Police in the year 1997-1998, came forward with these Writ Petitions claiming very same relief which has been granted by the State Administrate Tribunal which are covered by the Writ Petitions Nos.17639 of 2001, etc. preferred by the State Government. That apart, the original applications which were pending on the file of the State Administrative Tribunal, in which, similar relief has been claimed by certain other unsuccessful candidates were transferred to the file of this Court inasmuch as the State Administrative Tribunal has not been posted with the Presiding Officer and since the claims are identical as that of the claims made in the earlier original applications.
3. Initially the Writ Petitions filed by the State Governmentpetitioners were taken up for hearing on 20-08-2004. After hearing the learned Advocate General for some time, and in view of the submissions made on behalf of the contesting respondents that certain malpractices had taken place in the matter of selection which had resulted in the selection of certain candidates who really did not qualify in the selection process and that certain other candidates failed to get selected because of certain alterations made in the marks originally sanctioned to them, we felt it appropriate to direct the writ petitioners-State Government to make a wide publication of the pendency of the Writ Petition in respect of District quarters by publishing notices in the different ranges in order to enable such of those successful candidates who intend to have their say in these proceedings.
4. Thereafter, when the Writ Petitions were posted for hearing on 2 9-10-2004, Mr.A.V.Arun, learned counsel represented that he is representing some of the successful candidates who got selected in 1997-199 8 selection and thus those selected candidates were also represented by counsel. Finally the Writ Petitions were heard on 3-12-2004, 17-12 -2004 and 9-2-2005.
5. While the learned Advocate General addressed arguments on behalf of the Writ Petitioners-State Government and the Chairman of the Tamil Nadu Uniformed Services Recruitment Board, M/s.G.Masilamani, K. Chandru, and M.Venkatachalapathy, learned senior counsel and M/s.V. Ramasubramaniam and K.Venkata Ramani, argued on behalf of the respective contesting respondents.
6. Mr.T.L.Ramamohan, learned senior counsel appeared on behalf of some of the selected candidates represented by Mr.A.V.Arun, learned counsel appearing for those impleaded respondents.
7. In order to appreciate the scope of controversy involved in these Writ Petitions as well as the Original Applications, a brief history of the case is required to be stated.
8. The recruitment of personnel of Police Force Service is governed by the Special Rules relating to Tamil Nadu Police Subordinate Service (in short, the Special Rules). The Tamil Nadu Uniformed Services Recruitment Board (in short, the Board) was constituted as per G. O.Ms.No.1806 Home Services (F) Department dated 29-11-1981 under proviso to Article 309 of the Constitution to select suitable personnel for recruitment of Sub Inspectors of Police (Men and Women), Police Constables (Men and Women), Sub Inspectors (Technical) (Men and Women) in the Police Department, Firemen in the Fire Service and Jail Wardens in the Prison Department. The Heads of Department of Police would intimate the estimated number of vacancies for the respective categories in September of every year for which recruitment would be conducted by the Board. Thereafter, the Board will release the Notification calling for applications from the eligible candidates in which, the mode of selection, pre-requisite conditions of age and educational qualifications would be mentioned. The applications in the prescribed format as prescribed by the Board would be collected along with the application fee, which will be processed by the Board and those who satisfy the age and educational qualifications alone would be called for test for which individual call letters would be sent by the Board to the candidates. The applications of the unqualified candidates would be rejected by the Board.
9. As far as the recruitment of Sub-Inspectors of Police is concerned, the same is made on the basis of vacancies notified by the Deputy Inspector General and the recruitment to be made by direct recruitment of both men and women from the open market as well as from the inservice candidates. Some of the vacancies are also filled up from among the inservice candidates by way of promotions. In the selection, reservation policy is also duly complied with. The direct recruitment process consists of three stages, namely, Physical Efficiency Test, Written Test and Interview. Marks are allotted for these three stages in the range of 45, 40 and 15 respectively. If a candidate comes out successful in the above process, he would be sent for Medical Examination and simultaneously he will also be subjected to police verification to find out his antecedents. If a candidate comes out successful in the above said process, he would be selected and appointed. Thereafter, he will have to undergo training during the period of probation and on successful completion of training, his appointment will be regularized.
10. According to the petitioners-State Government, by G.O.Ms.No.1 036 dated 6-7-1995, the Government of Tamil Nadu ordered for recruitment of Police Constables Grade-II (Men and Women) in different police ranges and the selection of candidates by the Board to be made on range-wise. By G.O.Ms.No.1421, dated 24-9-1997 after reviewing the matter, the State Government decided that the recruitment for the vacancies arising in the category of Sub-Inspectors of Police (Men and Women) should be undertaken by range-wise basis in future.
11. By a communication dated 11-3-1998, the Deputy Inspector General of Police wrote to the second petitioner about the filling up of 100 0 posts of Sub-Inspectors of Police in the Tamil Nadu Police Service. The various categories under which those posts are to be filled up were stated as under:
Total Posts - 1000 Nos.
Men Women
Open Market 490 240
20% quota to Departmental
Candidates 140 060
10% Conversion from
Armed Reserve/Tamil Nadu
Special Police 070 -
_____________
Total: 700 300
_____________
12. Based on the above said communication, the State
Government issued G.O.Ms.No.1317 Home (Police-IX) Department, dated 8-9-1997 for recruitment of 1000 Sub-Inspectors of Police. Thereafter, the second petitioner-the Board issued a Notification dated 2-4-1998 calling for applications from Men and Women of Indian Citizens who satisfy the eligibility norms of Age, Physical measurements and Educational qualifications for the post of Sub-Inspectors of Police in respect of 490 posts along with 7 other backlog posts meant for STs for men and 240 posts for women. Clause-5 of the said Notification disclosed the number of posts that were existing in different ranges. The ranges were, Chennai Chingleput, Villupuram, Coimbatore, Vellore, Trichy, Madurai, Dindigul, Ramanathapuram, Tirunelveli and Thanjavur. While the Chennai range consisted of City of Chennai, the other ranges consisted of two and more districts. Under Clause-6 of the said Notification, General Instructions were given, in which, it was stated that examinations would be conducted range-wise in head quarters. Under Clause-6(f), it was provided that such of those candidates who qualified in Physical efficiency Test alone would be allowed to take written test. The specimen application of format was also published in the said Notification. The candidates were asked to forward their applications directly to the second petitioner-the Board either in person or through registered post on or before 5.45 p.m. on 27-4-1998. Inservice candidates both State and Central Government as well as Quasi Government Department personnel were directed to send their applications through their Departments. As far as inservice candidates were concerned, it was specifically announced in that Notification that in respect of posts reserved as per G.O.Ms.No.1054 Home (Pol.III) Department dated 13-7-19 95 for the Graduate Police Constables and Head Constables serving in the Police Department, the norms and the application format would be intimated separately through the Department. Thus, this selection process was in respect of 490 Men Sub-Inspectors of Police and 240 Women Sub-Inspectors of Police in the Open Market apart from 140 Men Sub-Inspectors and 60 Women Sub-Inspectors and conversion of candidates from Armed Reserved and Tamil Nadu Special Police to an extent of 70 vacancies which account for 10% of the total vacancies. In all, it was relating to 1000 posts. This was announced by the proceedings of Chief Office Rc.No.Rect.I/247211-A/97, dated 11-3-1998.
13. Subsequently revised orders came to be issued by the Government in Lr.1247/Home/Pol.III/Dept., dated 10-9-1998. According to which, different types of recruitment were directed to fill the posts as under:
Men Direct Open Market 490 + (10% conversion from AR/TSP ST Backlog 7 : 554 Women Direct : 240 Men (20% Dept quota) 140 + 3 State Backlog : 143 Women (20% Dept.quota) : 60 _____________ Total: 997 _____________
14. By proceedings dated 2-7-1998 in C.No.Rect.1/247211 A/97 of D. G.P., Six Committees were formed to conduct Physical Efficiency Test and Written Test in the following centres, viz., Chennai, Mount, Vellore, Trichy, Madurai and Tirunelveli.
15. Of the total applications of 33,473, actual number of candidates who became eligible to attend the interview was only 2546. From among the said candidates, those who were qualified for Medical Examination and Police verification, was only 918.
16. By G.O. Letter No.218/Secy/98, dated 21-11-1998, two Broad Based Committees were constituted to conduct viva-voce Test. The final list was drawn and sent to D.G.P., Chennai-4 for issuing appointment orders to the selected candidates by the second petitioner-the Board in its proceedings in C.No.D1/3901/97, dated 5-3-1999.
17. One other relevant factor to be stated is that by G.O.Ms.No.875 dated 6-7-1998, in exercise of powers conferred by the provisions of the Tamilnadu District Police Act, 1859 (Central Act XXIV 1859) and Chennai City Police Act, 1888 (Tamil Nadu Act III of 1888), read with proviso to Article 309 of the Constitution of India, an amendment to the Special Rules for the Tamilnadu Police Subordinate Service ( Section 34 in Volume-III) of the Tamil Nadu Services Manual, 1970 was notified, which amendment was deemed to have come into force on 13th July, 1995. The said amendment was to Annexure-I to the Special Rules which is relatable to Rule 3(a). In the said Annexure which is a table, under Clause I in Column (3) against the entry "Category-2 SubInspectors of Police in Column (1), the following addition was made.
"Provided further that the contesting candidates against 20% of vacancies of direct recruitment quota,
(i) Should not have completed 45 years of age as on 1st July, preceding the date of notification of selection;
(ii) should have 168 centimeters in height; and
(iii) Must have completed five years of service as on 1st July, preceding the date of Notification of selection."
18. By virtue of the said amendment, an inservice candidate contesting against 20% vacancies of direct recruitment quota, should have completed 45 years of age as on 1st July preceding the date of notification of selection. It also specified the minimum height as 168 centimeters apart from completion of five years of service as on 1st July, preceding the date of notification of selection.
19. The post of Sub-Inspector of Police comes under Category-II of Class I. Under Sub Rule 3(b), promotion to different posts including the post of Sub-Inspector of Police is provided and Sub Rule (ii)(b) of Special Rule 3(b) states that such promotion to the post of SubInspector should be made from a list of qualified candidates suitable for promotion prepared and finalized by the Range Promotion Board in respect of various Units detailed therein subject to approval of Deputy Inspector General of Police or Commissioner of Police, Madras as the case may be in respect of promotion from the posts of Head Constables to Reserve Sub-Inspectors and from the post of Head Constables to Sub-Inspectors. The said Sub Rule also gives a detailed description of different ranges which consists of different districts as Units.
20. Special Rule 11 stipulates that selection for appointment to all categories in the service by direct recruitment should be made by Tamil Nadu Uniform Service Recruitment Board. Special Rule 12 specifically deals with the selection and reservation of appointments of Reserved Sub-Inspectors. In the said Special Rule 12, apart from application of General Rule 22 of the Tamil Nadu State and Subordinate Service, as regards the rule of reservation of appointment, certain other provisions have been made in respect of filling up of vacancies by direct recruitment for the said post. Special Rule 13 mentions the general qualifications to be satisfied by a person in order to be eligible for appointment by direct recruitment. Sub Rule 13(A) specifically mentions that a candidate for appointment to a post in the service must be a citizen of India, or a subject of Sikkim, or a subject of Nepal, or a subject of Bhutan or a Tibetan refugee who came over to India before the 1st January 1962 with the intention of permanently settling in India, or a person of Indian origin who has migrated from Pakistan with the intention of permanently settling in India, or the persons falling under other categories other than citizen of India, should be a person in whose favour a certificate of eligibility has been given by the State Government.
21. The special qualifications for a person to be eligible for appointment to the class and category are specified in Annexure II of the Special Rules under Rule 14. Under Special Rule 16, the period of probation required is specified. The period of training to be undergone by a probationer and the pay is provided under Special Rule 18. The completion of probation and declaration of the same is provided under Special Rule 19. Appointment of full member after approval of probation is provided under Special Rule 26. Special Rule 39 provides for relaxation of any of the Special Rules for reasons to be recorded in writing. Under Special Rule 42, it is specifically provided that the provisions of the General Rules in Part II of the Tamil Nadu State and Subordinate Services Rules would apply to the member of service except to the extent expressly provided in these rules. The said Special Rule 42 came to be inserted by G.O.Ms.No.182, Home (Pol VI) Department, dated 25-2-2003.
22. On a conspectus reading of the above said Special Rules, we find that while Sub Rule 3(a)(i) provides for the method of appointment to the several classes and categories mentioned in the Annexure which includes the post of Sub-Inspector of Police. Special Rule 3(b)(i) and (ii) deals with the promotion to be made in respect of the various posts right from Head Constables to the post of Sub-Inspectors. Significantly, when Special Rule 3(b)(ii)(b) stipulates that promotion to the post of Sub-Inspector both Reserve as well as Regular SubInspector from the post of Head Constables are to be made by the Range Promotion Board in respect of different Units and as many as 22 ranges have been provided in the table, under the said Special Rule, no such specific provision has been made for any appointment to the several classes and categories that are indicated in Annexure I. In Annexure I, the various posts, i.e. Classes I to IV which are covered by Special Rule (2), have been mentioned.
23. Though under Special Rule 11, it is stated that selection for appointment to all categories in the service by direct recruitment should be made by the Board, here again, no specific provision has been made to the effect that such selection for appointment can be made range-wise or zone-wise. Though under Special Rule 42, it is stated that the provision of the General Rules contained in part II of the Tamil Nadu State and Subordinate Service Rules would apply to the member of a service except to the extent expressly provided in these rules, Rule 10(A) of the Tamil Nadu State and Sub-ordinate Service Rules, which provides the manner of recruitment to the posts which are outside the purview of the Tamil Nadu Public Service Commission could not have been applied, inasmuch as, the said Special Rule 42 came to inserted only in the year 2003 by G.O.Ms.No.182, dated 25-2-2003.
24. In this context, though reliance is placed upon G.O.Ms.No.1421 dated 24-9-1997, in and by which, the State Government directed that in the recruitment for the vacancies arising in the category of SubInspectors of Police (Men and Women) selection of candidates by the Board should be made range-wise, it is relevant to point out that the same has not resulted in any specific provision to that extent provided for in the Special Rules as has been made available in respect of promotions to be made to the posts of Sub-Inspector of Police from the post of Head Constables under Special Rule 3(b)(ii)(b).
25. The issue involved in these Writ Petitions will have to be considered in the light of the above factual details and provisions contained in the Special Rules applicable to Tamil Nadu Police Subordinate Service.
26. Pursuant to the Notification dated 2-4-1998 which called for applications from the candidates from the Open Market, when the finalization of selection was to be announced, several candidates from the Open Market who applied for such direct recruitment approached the State Administrative Tribunal by filing Original Applications in O.A. Nos.9825 of 1998 etc. The challenge made in those Original Applications among other grounds, was mainly on the ground that the Notification did not provide for zone-wise selection which is also not contemplated under the Special Rules and therefore, any appointment based on zone-wise selection should not be allowed. Similarly such of those inservice candidates who were also aggrieved by the selection made, filed O.A.Nos. 6672 of 1999 etc., on the ground that such selection was also made based on zone-wise marks which was not permissible and also on the ground that certain other persons were selected who had not really performed well in the process of selection. The applicant in O.A.No.10168 of 1998 approached the State Administrative Tribunal on the ground that he was not allowed to participate in the selection on the sole ground that he crossed the age barrier.
27. The above Original Applications were resisted by the petitioners. As far as the challenge made by the Open Market directly recruited candidates was concerned, it was contended that G.O.Ms.No.1421 dated 24-9-1997 provided for range-wise selection, Rule 3(b)(ii)(b) of the Special Rules contemplates composition of the Police district for each range, that all the applicants were below the cut off marks in the respective ranges and that the reliance placed upon the Judgment of the Honble Supreme Court reported in "(1997)1 SCC 60 (RADHEY SHYAM SINGH AND OTHERS versus UNION OF INDIA AND OTHERS)" was not applicable to the selection made within a state.
28. As far as the challenge made by the inservice candidates was concerned, it was contended that the Special Rules provided for promotion from the rank of Head Constable to the Sub-Inspector of Police through the Range Promotion Board and inasmuch as the concerned applicants failed to reach the cut off marks, they were not rightly selected.
29. As far as the claims made by the applicant in O.A.No.10161 of 19 98, it was contended that even the Memorandum calling for applications dated 18-6-1998 in Rc.No.1257/98/Rect.I/98 which prescribed such age restriction, by virtue of G.O.Ms.No.875 dated 6-7-1998 prescribing 45 years of age limit as on 1st July of the year preceding the date of notification, the claim of the petitioners cannot be considered. According to the petitioners-State Government, the said applicant not having fulfilled the age qualification, his application was rightly rejected.
30. Based on the above pleadings, the State Administrative Tribunal framed two points for consideration, viz., "(i)Whether the selection of departmental candidates under 20% quota meant for them in direct recruitment for the post of Sub-Inspector of Police, for the year 1997-98 was made on zone-wise basis or statewide basis?
(ii) Whether the selection for the posts of Sub-Inspectors of police by direct recruitment from open market made on zone-wise is legal?"
31. On the first point, the Tribunal reached a finding that the selection of the departmental candidates for the posts of Sub-Inspector of Police for the year 1997-98 was not based on zone-wise selection.
32. On the second point, the Tribunal held that the direct recruitment to the post of Sub-Inspector of Police made by the petitioners for the year 1997-98 was bad as the same was conducted on zone-wise basis. However, the Tribunal was not inclined to set aside the selection as it felt that in the light of the fact that there were certain vacancies existing and since the number of applicants were limited, they could be accommodated by directing the petitioners-State Government to select the candidates if they fulfill the other requirement like Medical Examination, antecedents, successful completion of probation by undergoing training, etc.,
33. While reaching the above said conclusion, the Tribunal took note of the fact that in spite of repeated directions, the petitioners failed to produce the records relating to the selection, that in one of the original applications, the applicant pointed out that there were lot of mal-practices in the selection and the marks were corrected in the last stage to suite the convenience of the several individuals who paid heavy amount through their political mates and thereby the persons who secured higher marks on merit were denied appointment. The Tribunal, therefore, took the view that by virtue of Section 105 of the Indian Evidence Act, in the absence of the relevant records placed before it, there was every justification to conclude that the marks obtained by the applicants not having been considered on Statewide basis, they would have definitely secured better marks than such of those candidates whose cut off marks was lesser in certain other regions and thereby they were entitled to be selected.
34. As far as the applicant in O.A.No.10161 of 1998 was concerned, the Tribunal held that in the absence of specific amendment to the Rules, merely based on G.O.Ms.No.875 dated 6-7-1998, the age restriction imposed with retrospective effect from 1-7-1997 could not have been applied and therefore, the said applicant should be allowed to undergo the Physical efficiency Test within a period of three months from the date of order of the Tribunal without reference to his age limit and if he secures the cut off marks or above, he should be appointed as Sub-Inspector of Police within three months thereafter. In effect, the Tribunal having regard to the uncertainity of marks allotted in the interview and in the absence of relevant records having been placed before it, while deciding not to interfere with the selection already made, thought it fit to permit all the applicants except the applicant in O.A.No.10161 of 1998 to be treated as having been selected and directed the petitioners to allow them to undergo the other formalities of verification of their antecedents, Medical examination, etc.
35. The said order of the Tribunal dated 19-7-2001 was subsequently followed in several other Original Applications which has resulted in the filing of three sets of Writ Petitions, in W.P.Nos.17 639 to 17660 of 2001, 17822 to 17826 to 17830, 18349 to 18356 and 178 99 to 17903 of 2003. That apart, certain other aggrieved candidates filed several other Original Applications before the Tribunal which have been transferred to this Court for being considered since the issue involved is common even in those cases. Apart from the Original Applications filed by those candidates, certain other candidates have directly approached this Court by filing W.P.Nos. 32253 to 32255, 324 99, 33135, 33136, 22344, 22015, 23063 and 34275 of 2004 claiming similar relief granted by the State Administrative Tribunal.
36. The learned Advocate General who appeared on behalf of the petitioners, namely, the State Government as well as the Board, contended that in the Notification dated 2-4-1998 itself, it was held that the test would be held range-wise at the respective ranges, that there were Six Committees formed to conduct Physical efficiency Test and Written Test in six centers by Memorandum dated 2-7-1998 as ordered by the first petitioner in G.O.Ms.No.1317, dated 8-9-1997 for the recruitment of Sub-Inspectors of Police, that even the Tribunal has, as a matter of fact, found that though the tests were held in six different centers for inservice direct recruitment candidates, the selection was not made Zone-wise, but State-wide basis and therefore, the same did not call for any interference.
37. As far as the Open Market recruitment is concerned, the learned Advocate General by relying upon G.O.Ms.No.1421 dated 24-9-1997, contended that when the said selection was made with the objective of providing equal opportunities to the candidates from the Backward areas and all the Districts, the said selection made on zone-wise basis cannot be faulted. As far as the Judgment of the Honble Supreme Court reported in "(1997)1 SCC 60" (cited supra), the learned Advocate General submitted that the said Judgment will not apply to the facts of this case as the Honble Supreme Court was concerned with a case of All India Selection and the principles laid down in the said Judgment cannot apply to a selection made at the State level. The learned Advocate General also attempted to point out that the arguments based on the criminal complaint as against the Selection Committee which was registered on 28-2-2002 cannot be a ground of attack in these proceedings inasmuch as that was not a point in issue before the Tribunal. The learned Advocate General was, however, fair enough to place before this Court the Final Report made by the Investigating Officer with the connected records which reveals a prima face offence made out against three of the Selection Committee Members along with one other staff working in the Board. The Report also reveals that there were corrections and interpolations made in respect of 197 candidates and by which process, 53 ineligible candidates got selected, while 10 eligible candidates lost their right of selection. The learned Advocate General, however, submitted that even if on account of the said allegation of correction of marks in the Interview, if selection on Statewide basis is to be made, in that process, of the whole lot of candidates who applied and who became eligible to attend the Interview, namely, 2546 in number, at best, only three out of the total number of candidates covered by these proceedings would become eligible for selection. The learned Advocate General also submitted that many of the claims of the applicants are liable to be rejected on the ground of delay and laches in making their claim while filing the Original Applications before the State Administrate Tribunal or while filing the Writ Petitions for the first time in this Court.
38. As against the above submissions, on behalf of the respondents-Applicants, Mr.K.Chandru, learned senior counsel appearing for some of the applicants, contended that since the allegation of malpractices was raised even before the Tribunal as referred to by the Tribunal in its order, the applicants were entitled to challenge the selection on that ground. The learned senior counsel by relying upon the subsequent Government Order in G.O.Ms.No.9, dated 2-1-2003, wherein, the State Government has directed that direct recruitment post of SubInspector (Men and Women) and Grade-II Police Constables (Men and Women) to be held on State-wide basis so as to ensure equality among the participating candidates, contended that the Zone-wise selection made earlier pursuant to the Notification dated 2-4-1998 was invalid and the order of the Tribunal should not be interfered with.
39. Mr.G.Masilamani, learned senior counsel appearing for the contesting respondents in W.P.No.17822 of 2003, contended that in the light of fraud now unearthed after the order of the Tribunal as admitted by the State Government, it only strengthens the order of the Tribunal and therefore, the same should not be interfered with. According to the learned senior counsel, the tribunal having followed and applied the principles laid down by the Honble Supreme Court in the Judgment reported in "(1997)1 SCC 60" (cited supra), the same does not call for any interference.
40. Mr.Venkatachalapathy, learned senior counsel appearing for some of the contesting respondents in W.P.Nos.17902 and 17823 of 2003, etc., submitted that in the light of the fraud brought out in the criminal complaints against the Selection Committee, 53 candidates who were stated to have been benefitted by such unlawful addition of marks, even while upholding the order of the Tribunal, the selection of the applicants should be given the benefit of seniority over those 53 persons.
41. Mr.Ramasubramaniam, learned counsel appearing for some of the contesting respondents in W.P.Nos.17643, 17644, 17647 of 2001 etc., contended that while the open market 'direct recruitment' was made pursuant to the Notification dated 2-4-1998, the recruitment of 20% for inservice candidates was made through the Circular of the Director General of Police dated 18-6-1998, that the selection process, such as, Physical efficiency Test, Written Test and oral Interviews were held in common on various dates, namely, 13-7-1998, 19-8-1998 and 30-11-1998 in different zones and therefore, the order of the Tribunal in granting the relief even to the inservice candidates should be upheld on the ground that even the said selection of inservice candidates was made only on zone-wise basis and not state-wide basis. The learned counsel pointed out that even in the affidavit filed in support of the Writ Petition No.17650 of 2003, in para 8, though the petitionerState Government stated that the selection was made on State-wide basis, if a reference is made to para 11 as compared to the details furnished by the petitioner-State Government in their common reply affidavit filed in O.A.No.1011 of 2000 etc., the cut of marks referred to by them as 56.75 for Backward Class community for rejecting the claim of the applicant in that case, namely Thiru K.Pitchandi who is sated to have obtained 47.93 marks, the cut off marks 56.75 was not Statewide cut off marks inasmuch as the State-wide cut off marks was far less in respect of Backward Class community candidate which was only 45.25. The learned counsel, therefore, contended that when one of the selected candidates, namely Mr.V.Ganesan whose Registration No.420190, who got selected in the Backward Class category with his marks at 45 .25, the contention of the State Government that the cut off mark of Backward Class community was 56.75 was an incorrect statement. The learned counsel also pointed out that the Tribunal granted the relief in respect of the applicants in O.A.No.3633 of 1999, 2103 of 1999 and 6368 of 1999, the petitioners implemented the order of the Tribunal in those cases by appointing the applicants and thereby in the matter of implementation of the order of the Tribunal, the first petitioner was adopting discriminatory treatment.
42. Mr.Venkat Ramani, learned counsel appearing for some of the contesting respondents, contended that even in the reply affidavit filed by the State Government in O.A.No.9825 of 1998 which related to the case of inservice candidates, the categoric stand of the State itself was that they adopted range-wise selection by virtue of Rule 3(d) of the Special Rules for Tamil Nadu State Police Subordinate Service. The learned counsel therefore, contended that it is too late in the day for the petitioners State Government to contend that in respect of the inservice candidates, they adopted State-wide selection. As regards belated filing of Original Applications and Writ Petitions, the learned counsel would contend that many of the applicants came to know about the fraud played in the matter of selection only when some of the applicants were summoned for enquiry after the year 2001 and therefore, immediately, thereafter, they approached the Tribunal and this Court seeking relief. It was therefore, contended that their claim should not be rejected on the ground of delay and laches.
43. Mr.T.L.Ram Mohan, learned Senior counsel for some of the selected candidates relied upon "(1989)3 AISLJ 61 (MOHINDER SINGH versus STATE OF HARYANA & OTHERS), "(1991) Suppl(2) SCC 421 (H.C.PUTTASWAMY AND OTHERS versus THE HONBLE CHIEF JUSTICE OF KARNATAKA HIGH COURT, BANGALORE & OTHERS), "(1992)1 SCC 28 ( ASHOK ALIAS SOMANNA GOWDA AND ANOTHER versus STATE OF KARNATAKA, BY ITS CHIEF SECRETARY & OTHERS), "(1995) Supp(2) SCC 235 (V.N.SUNANDA REDDY & OTHERS versus STATE OF A. P. & OTHERS), "(1996) 11 SCC 753 (S.JAFFAR SAHIB versus SECRETARY, APPSC & OTHERS), "(1996)11 SCC 563 (PRAKASH K. & ANOTHER versus STATE OF KARNATAKA & OTHERS) and "(2003)7 SCC 285 (UNION OF INDIA AND OTHERS versus RAJESH P.U., PUTHUVALNIKATHU AND ANOTHER)" to contend that merely because there were some discrepancies in the selection of some of the candidates, the whole lot of the selection should not be upset in the interest of justice.
44. Before dealing with the rival contentions of the parties, we feel it appropriate to refer to the salient features of the Judgment of the Hon'ble Supreme Court reported in "(1997)1 SCC 60 (cited supra)" which was referred to by the Tribunal as well as before us on the question about the permissibility of holding zone-wise selection. In fact, in that judgment, a notification similar to that of the present one dated 2-4-1998 came up for consideration. In fact, similar to that of the second petitioner herein, the Government of India constituted a Subordinate Services Commission for the purpose of recruitment to Non-Technical Class-III posts in the Government of India Departments and in the Subordinate Offices. The notification constituting the said Sub-ordinate Service Commission itself mentioned among other things, ".... for ensuring that as far as possible the actual recruitment is made on a zonal basis so as to enable candidates from different regions to be absorbed in the vacancies arising within the respective regions, the examinations would be held as far as possible on different centres and successful candidates posted, to the extent possible to their home states/regions."
45. After the constitution of the said Commission, advertisements were made on different dates between 10-7-1993 and 16-7-1993 in the Employment News inviting the applications for different posts such as Preventive Officers, Examiners, Inspector of Central Excise, etc., As per the said advertisements also, the recruitment was made zone-wise on the basis of separate list drawn for each zone in respect of the candidates who appeared at the centres within the same zone. The appellants before the Hon'ble Supreme Court appeared to have raised objections to the process of zone-wise selection on the basis of separate merit list drawn for each zone. The said objections were not considered. Thereafter the appellants participated in the selection process. After the conclusion of the selection when the concerned appellants were not selected, they approached the State Administrative Tribunal which rejected their applications apparently on the ground that since they participated in the process of selection in the year 1993, the challenge made after the declaration of merit list in the year 1995 cannot be entertained. That is how the matter went before the Hon' ble Supreme Court. The Hon'ble Supreme Court ultimately formulated the question for consideration in para 7 "7. ...... The question therefore that arises for consideration whether such a selection based on zone basis would be permissible or it would be violative of the Constitutional guarantee enshrined in Article 14 and 16 of the Constitution of India."
46. Dealing with the above said issue, the Hon'ble Supreme Court highlighted the need for making a common selection instead of zonewise selection and observed as under in para 8.
"8. It is needless to emphasis that the purpose and object behind holding a recruitment examination is to select suitable and best candidates out of the lot and such an object can only be achieved by making a common select list of the successful candidates belonging to all the zones. On the other hand if zone-wise selection is made then various candidates who appeared in some of the zones and secured more marks than those who are selected from other zones would be deprived of their selection resulting into great injustice and consequent discrimination. Thus there can be said to exist no nexus between the aforesaid process of zone-wise selection and the object to be achieved, that is, the selection of the best candidates. That being so the process of selection as envisaged in paragraph 16 of the advertisement in question and reproduced in the earlier part of this judgment would lead to discriminatory results because by adopting the said process of zone-wise selection would result in the devaluation of merit at the selection examination by selecting a candidate having lesser marks over the meritorious candidate who has secured more marks and consequently the rule of equal chance for equal marks would be violated. Such a process would not only be against the principles enunciated n Article 14 and 16 of the Constitution but it would also result in heart burning and frustration amongst the young men of the country. The rule of equality of opportunity for every individual in the country is an inalienable part of our constitutional guarantee and that being so a candidate who secures more marks than another is definitely entitled to get preference for the job as the merit must be the test when selecting a candidate for recruitment for the posts which are advertised". (Emphasis added)
47. Going by the above observations of the Hon'ble Supreme Court, it is crystal clear that in the matter of selection for employment in the services of the State, while merit should be the basis for selection, zone-wise selection would result in less meritorious candidates being selected in one zone while more meritorious candidates might loose their chances in another zone. The Hon'ble Supreme Court has frowned upon such a process of selection inasmuch as that would be directly hit by Articles 14 and 16 of the Constitution in the matter of selection as between a meritorious candidate and non-meritorious candidate. When such is the legal position stated in no uncertain terms by the Hon'ble Suprme Court, the submission made by the learned Advocate General that the ratio of the said Judgment was stated in the case of the All India Selection and that the same will have no application to state-wide selection, in our opinion, is wholly unacceptable. We are unable to see any scope to hold that the services of the State will be of lessor value when compared to the services of the Government of India in order to hold that the principles set out by the Hon' ble Supreme Court in the case of service relating to the Government of India vis-a-vis Article 14 and 16 of the Constitution cannot be applied to the services of the State. We do not find any acceptable rationals in the said submission so made on behalf of the petitioners.
48. In the present day context, employment in the Government service either State or Central and the performance of such service being construed as public service, there is no scope to differentiate between a state service and centre service and that there can be a compromise on merit by resorting to zone-wise selection in the State service while such a concept which has been held to be not permissible by the Hon'ble Supreme Court. Merely because the services in the State is rendered within the territorial jurisdiction of the State, that by itself will not belittle the status of the government servant when it comes to the question of rendering service as a Public Servant which again depends wholly upon the merit which he holds. Therefore, it will have to be held that irrespective of the position whether it is state service or central service, the main criteria being merit which for us the basis for such selection, whatever said in respect of a selection of candidate for the central service will hold good mutatis mutandis even in respect of a state service as well. Therefore, we are unable to appreciate the said submission so made on behalf of the petitioners by the learned Advocate General.
49. Further even going by the prevailing rules, notifications and other proceedings, we are unable to hold that zone-wise selection was either contemplated or permissible. When we analyse the notification dated 2-4-1998 though Clause 5 of the said notification mentions the number of posts range wise and Clause 6 under the caption 'General Instructions' it is stated that examinations will be conducted rangewise at range head quarters, we do not find any other specific stipulation contained in the said notification that the selection will also be made on range-wise basis. Therefore, going by the notification, there is no scope to hold that the candidates were made to understand that the selection is going to be made zone-wise basis.
50. On behalf of the petitioners, reliance was placed upon G.O.Ms. No.1421 dated 24-9-1997 wherein, it is stated that the Government had decided that recruitment for vacancies arising in the category of Sub-Inspectors of Police (Men and Women) range-wise selection should be undertaken in future and that the second petitioner should make the selection for the said post range-wise. Even though such a direction was issued by the State Government in the above referred to G.O., it is required to be stated that such a course to be adopted as directed by the State Government should have the necessary provision in the rules. Admittedly, the post of Sub-Inspector of Police is governed by the Special Rules for Tamil Nadu Police Subordinate Service. As pointed out earlier, the method of appointment and promotion is governed by Rule 3. Under Rule 3(a)(i), it is stated that appointment to the several classes and categories shall be made as indicated in Annexure-I. Rule 3(a)(b)(i) of the Special rule is applicable to the promotion to be made to each post right from the post of Head Constable to the post of Sub-Inspectors. Under Rule 3(b)(ii) specific procedures have been prescribed to the effect that such promotions can be made range-wise by the Range Promotion Boards in different units and the units have also been specified by way of separate Table under the said Special Rule 3(b)(i) and
(ii). Significantly, there is no specific stipulation providing for range-wise promotion in the matter of direct recruitment either for 80% of the selection from the 'open market' or for 20% of the selection from 'inservice candidates'.
51. Therefore, in the first place, it will have to be stated that in the absence of any specific rule providing for zone-wise selection under Special Rule 3(a)(i) as well as in the Annexure-I referred in the said Rule 3(a), merely based on G.O.Ms.No.1421 dated 24-9-1997, provision for range-wise selection for 'direct recruitment' to be made cannot be read into the rules. In other words, in the absence of a specific rule in the Special Rules for Tamil Nadu Police Sub-ordinate Service, the action of the petitioners in having resorted to such a zone-wise selection can never be approved. It is not also possible to import the rule provided under 3(b)(i) and (ii) providing for zonewise selection for promotions to the case of a direct recruitment as the merits and demerits of candidates whose names are empanelled in the respective zones for their entry into service will have a different criteria and therefore, the said procedure adopted for zone-wise promotion cannot be followed in the matter of appointment by way of selection from the open market as well as from the department candidates. By making such a comparison, it should not be taken to mean that we have approved of such zone-wise promotion provided for under Rule 3(b) of the Special Rules, inasmuch as we are not concerned with the correctness of the said Rule. In fact, before the Tribunal, the petitioners sought reliance upon Special Rule 3(b) providing for zone-wise selection in order to sustain the impugned selection.
52. Having regard to our above reasoning, we hold that there being no special rule providing for zone-wise selection in respect of direct recruitment both from the open market as well as inservice candidates, the zone-wise selection resorted to by the petitioners cannot be approved.
53. In this context, it will also be relevant to refer to the submissions made by the learned counsel for the contesting respondents to G.O.Ms.No.9, dated 2-1-2003 wherein the State Government has ultimately directed that the direct recruitment to the post of Sub-Inspector (Men and Women) and Grade II Police Constables (Men and Women) to be held on State-wide basis so as to ensure equality among the participant candidates and the second petitioner was directed to take action accordingly. In paragraph 4 of the said G.O., the DIG of Chennai has been requested to send necessary proposals for amending Special Rules for the Tamil Nadu Subordinate Services and the Special Rules. Though such a direction came to be issued in the above referred to G.O. on 2-1-2003, on a perusal of the Special Rules for Tamil Nadu Police Subordinate Service furnished to this Court on behalf of the petitioners, we do not find any such provision even existing for direct recruitment to the post of Sub-Inspector of Police or to the post of Grade II Police Constables. It is not known whether the above referred to G.O. was issued by making a reference to the provision for zone-wise selection provided under Rule 3(b) which we find, is exclusively applicable only to the case of promotion for various categories from the post of Head Constables to the post of Inspector of Police. In any event, in the light of present direction to the State Government itself as stated in G.O.Ms.No.9 dated 2-1-2003, it will have to be held that even the petitioners have realised that in the matter of direct recruitment to the post of Sub-Inspector of Police both Men and Women, state wide selection alone would ensure equality amongst the candidates, meaning thereby, such a course would alone ensure the selection of meritorious candidates giving no scope for any ill-feeling amongst candidates who compete for such selection.
54. That apart even according to the petitioners in respect of 20% vacancies to be filled by the inservice candidates by resorting to direct recruitment, the selection was made on a State-wide basis. Before going into the correctness of the said stand taken on behalf of the petitioners, when we test the said stand in the anvil of the selection made in regard to the remaining 80% of direct recruitment made from the open market, we are unable to visualize any special reasons for the petitioners to have adopted such a course as between open market direct recruitment and appointment by way of selection from the inservice candidates. When the post is common and when according to the petitioners, a State-wide selection would be the best course when it comes to the question of such selection being made from inservice candidates, there is no reason why such a procedure will not hold good when it comes to the question of direct recruitment from the open market. In fact, there was no material placed before the Court or statement made either in the pleadings or in any of the documents to show that different method of selection was necessitated for filling up the very same post through two different sources. Excepting that 2 0% from and out of the total available posts was allotted for the inservice candidates, apparently to provide scope for the inservice candidates to avail the opportunity of getting selected to that post based on merits, in all other respects whatever applies to inservice candidates should apply in every respect even in respect of selection made from the open market. Therefore, even going by the stand of the petitioners, in the matter of direct recruitment when a state-wide selection was found to be more appropriate, in the absence of any acceptable valid grounds, we are unable to approve of the action of the petitioners in having resorted to zone-wise selection on the ground that that would provide scope for equal distribution in different districts. In fact, if that reasoning would hold good for a open market direct recruitment, the same should have been the position even in regard to the inservice candidates. Therefore, looked at from any angle, we do not find any logic or reasoning in the stand of the petitioners in resorting to two methods of selection for the very same posts, i. e. one from the open market and the other from inservice candidates.
55. Therefore, on this ground as well, it will have to be held that the zone-wise selection followed by the petitioners in respect of open market candidates to the post of Sub-Inspector was invalid and not inconsonance with the Special Rules relating to the Tamil Nadu Police Subordinate Service.
56. As far as the conclusion of the Tribunal that the petitioners followed state-wide selection in respect of the 20% quota meant for inservice candidates cannot also be said to be fully correct. As pointed out by Mr.V.Ramaasubramaniam, learned counsel appearing for the contesting respondents in W.P.No.16643 of 2003 etc., in respect of one of the contesting respondents, who filed O.A.No.1011 of 2000, who is an inservice candidate, who staked his claim in the 20% quota, the said applicant claimed that he received a reply memorandum from the Office of the second petitioner in June 1999 in Na.Ka.T2/849/99 dated 11-6-1999 to his representation dated 12-2-1999 wherein, the second petitioner took a categoric stand that the said applicant was not selected since the selection was held range-wise. In the common reply affidavit filed on behalf of the petitioners which reply was also related to O.A.No.1011 of 2000, it was contended that the said applicant in O.A.No.1011 of 2000 had secured 47.93 marks, while the cut off marks for BC community was 56.75 and therefore, he was not selected. Mr.V.Ramasubramaniam learned counsel pointed out to the cut off marks in respect of one other B.C.candidate who was selected, namely, Thiru V.Ganesan with Reg.No.420190, the marks obtained by him was only 45.25. In fact, the learned counsel contended that the said stand was specifically raised by the said contesting respondent in his counter affidavit in this Court, but there was no reply to the said averment by the petitioners. Even the copy of the selected list with the marks obtained by them in different categories filed before this Court on behalf of the contesting respondents was also not disputed on behalf of the petitioners. It is not known why the petitioners were not inclined to produce the cut off marks of different categories in respect of 20% department quota made by the petitioners.
57. In one of the statements produced by the learned Advocate General in respect of 20% department quota recruitment (Men), the cut of marks in respect of BC candidate has been mentioned as 56.75. Even in the written submissions filed on behalf of the petitioners, there is no reference to the contentions raised by Mr.V.Ramasubramaniam as regards the correctness of the cut off marks claimed by the petitioners in their common reply affidavit filed before the Tribunal vis-`-vis the statement placed before us containing the list of 140 SubInspectors of police who were selected and appointed under 20% quota where the last cut off marks of BC candidate, namely, Thiru V.Ganesan bearing Reg.No.420190 has been shown as 45.25. In such circumstances, we are unable to accept the stand of the petitioners that in respect of 20% selection of inservice candidates, there was a state wide selection in order to sustain the conclusion of the Tribunal that zonewise selection was not followed and that only State-wide selection was made.
58. We therefore conclude that the selection to the post of SubInspector of Police (Men and Women) by way of direct recruitment in the year 1997-98 for the Tamil Nadu Police Department pursuant to the Notification dated 2-4-1998 from the open market was invalid on the ground that such selection was made zone-wise without any provision in the statutory rules and also without prescribing such a procedure in the relevant Notification for making such selection.
59. As far as the selection of inservice candidates by way of direct recruitment under 20% quota, inasmuch as there is no definite material to conclude that such selection was also made zone-wise and in the absence of any challenge made to the order of the Tribunal on its conclusion that the said selection was made state-wide basis, we refrain from interfering with the said conclusion of the Tribunal.
60. Though we reached the above conclusion as regards the selection made pursuant to the Notification dated 2-4-1998, when it comes to the question of interfering with the ultimate selection made, we are of the view that it will not be appropriate to set aside the whole selection at this point of time. On this aspect, we wish to be guided by the various decisions of the Honble Supreme Court relied upon by Mr.T.L.Ram Mohan, learned senior counsel representing the counsel for some of the selected candidates.
61. In the Judgment reported in "(2003)7 SCC 285 (UNION OF INDIA AND OTHERS versus RAJESH P.U., PUTHUVALNIKATHU AND ANOTHER)", the Hon ble Supreme Court, more or less in an identical situation, was pleased to observe as under
in para 6.
"6. In the light of the above and in the absence of any specific or categorical finding supported by any concrete and relevant material that widespread infirmities of an all-pervasive nature, which could be really said to have undermined the very process itself in its entirety or as a whole and it was impossible to weed out the beneficiaries of one or the other irregularities, or illegalities, if any, there was hardly any justification in law to deny appointment to the other selected candidates whose selections were not found to be, in any manner, vitiated for any one or the other reasons. Applying a unilaterally rigid and arbitrary standard to cancel the entirety of the selections despite the firm and positive information that except 31 of such selected candidates, no infirmity could be found with reference to others, is nothing but total disregard of relevancies and allowing to be carried away by irrelevancies, giving a complete go-by to contextual considerations throwing to the winds the principle of proportionality in going farther than what was strictly and reasonably to meet the situation. In short, the competent authority completely misdirected itself in taking such an extreme and unreasonable decision of cancelling the entire selections, wholly unwarranted and unnecessary even on the factual situation found too, and totally in excess of the nature and gravity of what was at stake, thereby virtually rendering such decision to be irrational.
62. In the Judgment reported in "(1995) Suppl(2) SCC 235 (V.N. SUNANDA REDDY AND OTHERS versus STATE OF A.P. AND OTHERS)", the Honble Supreme Court was pleased to hold as under in para 15:
"15. Before parting we may mention one submission on behalf of the Telugu medium students. It was submitted that if the weightage given to them in recruitment is to be found fault with, those Telugu medium candidates who have already been appointed may not be disturbed otherwise irreparable injury will be caused to them. It was also submitted that those Telugu medium students whose appointments could not be made on account of the pendency of these proceedings may be given one more chance to compete for future recruitment on such posts and for that purpose suitable age relaxation may be given to them as otherwise they will be out of the employment market. In our view this request is quite reasonable and deserves to be granted. We, therefore, direct that despite our finding that 5 per cent weightage given to the Telugu medium graduates in the present case is violative of Articles 14 and 16(1) of the Constitution, those Telugu medium graduates who have already been appointed on the strength of such weightage and who are working on their posts concerned should not be disturbed and their appointments will not be adversely affected by the present judgment. On the other hand, those Telugu medium graduates who have been selected on the strength of the weightage but to whom actual appointments have not been given on account of pendency of the present proceedings should be given a chance to compete for such posts as and when future recruitment to such posts is resorted to and for that purpose only once suitable age relaxation may be given to them in case they are otherwise found suitable on merits to be appointed in such future direct recruitment to such posts. In other words, only on account of the fact that they have become age barred, they should not be denied appointments on the strength of their meritorious performance. This will be by way of only one-time concession about age relaxation."
63. In the Judgment reported in "(1992)1 SCC 28 (ASHOK ALIAS SOMANNA GOWDA AND ANOTHER versus STATE OF KARNATAKA, BY ITS CHIEF SECRETARY AND OTHERS)", the Honble Supreme Court declined to interfere with the selection even though it found fault with the award of marks for viva-voce, the position has been set out as under in paragraphs 2 and 3:
"2. .. It is not necessary to examine the matter in detail inasmuch as 50 marks for interview out of 150 are clearly in violation of the judgment of this Court in Ashok Kumar Yadav v. State of Haryana1 and Mohinder Sain Garg v. State of Punjab2. On a direction given by this Court on September 4, 1991 the record of the Selection Committee was produced before this Court at the time of hearing. From a perusal of the marks awarded to the selected candidates it is clear that a large number of candidates have been selected though they had secured much lesser marks than the appellants in the qualifying examination but had secured very high marks in the viva voce out of 50 marks kept for this purpose. Thus it is an admitted position that if the marks for interview were kept even at 15 per cent of the total marks and merit list is prepared accordingly then both the appellants were bound to be selected and a large number of selected candidates would have gone much lower in the merit list than the appellants. In view of the fact that the result of the impugned selections was declared in 1987 and the selected candidates have already joined the posts, we do not consider it just and proper to quash the selections on the above ground"
3. We, therefore, allow the appeal and direct the respondents to give appointment to the appellant Ashok alias Somanna Gowda on the post of Assistant Engineer (Civil) and appellant Rajendra on the post of Assistant Engineer (Mech.) in Public Works Department within a period of two months of the communication of this order in case the appellants are found suitable in all other respects according to the Rules. Learned counsel appearing on behalf of the State of Karnataka pointed out that there are many other candidates who had secured much higher marks than the appellants in case the above criteria is applied for selection. In view of the fact that appointments under the impugned Rules were made as back as in 1987 and only the present appellants had approached the Tribunal for relief, the case of other candidates cannot be considered as they never approached for redress within reasonable time. We are thus inclined to grant relief only to the present appellants who were vigilant in making grievance and approaching the Tribunal in time. Learned counsel for the State also submitted that the State Government has already framed new rules, and as such we do not find it necessary to quash the Rules under which the present selections were made as they are no longer in existence. No order as to costs."
64. In Judgment reported in "(1989) 3 All India Service Laws Journal 61 (MOHINDER SINGH versus STATE OF HARYANA & OTHERS)" the Honble Supreme Court has held as under in para 11:
"11. Counsel appearing for the respondents did not attempt to contend that if the appellant had the requisite qualification when selection was being made and he had been kept out on the wrong premises that he did not have the qualification, he would be entitled to challenge the selection. The selected candidates were, however, not impleaded as respondents in the Writ Petition and attempt to implead them at this stage is bound to prejudice them. They have now been in service for more than eight years and respondent no.4 has even been holding a promotional post for some time. We do not think in such a situation there would be any justification to allow challenge to the recruitment of the respondents. At the same time the State had no justification to keep out the appellant from consideration. The Appellant was entitled to be considered for recruitment in 1980 and since his claim had been overlooked without justification, the State and the Haryana Public Service Commission are bound to consider his case now on the basis that he was entitled to recruitment in 1980."
65. A continued reading of the above referred to decisions of the Honble Supreme Court gives us a clear indication that in those circumstances, it will not be prudent to set aside the whole selection and there by create a situation which will not be condusive to the state administration. In the case on hand, the selection relates to the post of Sub-Inspector of Police (Men and Women). The said selection was notified in the year 1998 in respect of posts which were available in the year 1997-98. The finally selected candidates numbering 881 was pronounced by proceedings issued by the second petitioner on 5-3-1 999. By and large, the appointments were made by the year 1999-2000. It is true that the earliest O.A. challenging the manner of selection was filed before the State Administrative Tribunal on 27-11-1998 in O.A.No.9825 of 1998 wherein, it was specifically alleged that the zone-wise selection was bad. The Tribunal passed orders in a batch of O.As commencing with O.A.No.9825 of 1998 on 19-7-2001. In the said order also, the Tribunal held that it does not propose to set aside the whole selection simply because the selection was made zone-wise. In the said proceedings though the allegation of mal-practices in the process of selection was alleged, in the absence of any concrete proof, the Tribunal was not inclined to solely rely on the said allegation while granting the relief.
66. As of now the main submissions of the contesting respondents while attacking the selection was on the above two grounds, namely, zone-wise selection and mal-practices in the award of marks which facilitated certain candidates to get selected and thereby some of the contesting respondents failed to get selected. As far as zone-wise selection is concerned, we have found the same was impermissible and thereby such a method of selection being contrary to the rules ought not have been made. As regards alleged mal-practices, on a perusal of the final report by the Director of Vigilance and Anti-corruption Department, it has come out that 53 ineligible candidates were benefited and that 10 eligible candidates were deprived of selection. Though such a final report has been made, it will have to be said that the said report would always be subject to the final outcome of the criminal case registered against three members of the Selection Committee and one other past employee of the second petitioner.
67. One other relevant factor which is to be borne in mind is that while the Government ordered for recruitment of 1000 Sup-Inspectors of Police vide G.O.Ms.No.1317 Home (Pol-III) Department, dated 8-9-199 7, the ultimate selection was only to an extent of 918 candidates and the final order of appointment was issued only to 881 candidates in respect of the selection for the year 1997-98.
68. It is the admitted position that the marks awarded in different zones in respect of the selection made in the open market category as well as inservice candidates for both men and women varied. In some zones, the cut off marks of the last selected candidate was on the higher side while in some zones, it was on the lower side. Therefore, the non-selection of such of those candidates who have challenged the selection and whose cut off marks are equal or more than the lowest cut off marks in any of the zones is entitled for the relief. As far as the inservice candidates are concerned, having regard to our conclusions in para 57, we hold that the cut off marks mentioned in the list placed before us on behalf of the contesting respondents, in respect of 140 selected candidates to be valid.
69. Apart from the above details, we are also of the view that all the candidates who approached the Tribunal cannot be granted the relief. When we referred to the decisions of the Hon'ble Supreme Court, we noted that the Honble Supreme Court was of the view that even if the selection was found to be bad for violation of any mandatory provision, yet on that sole ground, the concerned applicant cannot be straight away granted the relief and that the grant of relief also depends as to whether such applicant approached the Judicial Forum at the earliest point of time. Keeping that in mind, when we consider the various applicants who approached the Tribunal, we find that the contesting respondents in W.P.Nos.17639 to 17660 of 2001 were all the persons who approached between 1998 and latest by 2001. All those applications were disposed of by the State Administrate Tribunal by a common order dated 19-7-2001 in O.A.Nos.9825 of 1998 etc.. The said order was followed by the Tribunal itself in another batch of Original Applications commencing from O.A.Nos.6449 of 2000, etc., and were granted the very same relief by a common order dated 3-7-2002. This order is under challenge in W.P.No.17822 to 17826 of 2001 and 17899 and 17903 of 2003. There is yet another batch in W.P.Nos.18349 to 18356 of 2003 wherein, another common order of the Tribunal passed in O.A.Nos.5744 of 2001 dated 12-7-2002 etc., has been challenged. The said order was also passed by the Tribunal following its earlier common order dated 19-7-2001 in O.A.Nos.9825 of 1998 etc. All these Writ Petitions cover the case of 42 candidates who appeared for the selection and who were denied such selection. Out of these 42, 27 would come under 80% open direct recruitment category and 15 would come under department quota recruitment.
70. That apart there are certain other Original Applications which were filed in the years 1998, 1999, 2000, 2001, 2002, 2003 and 2004 which were not disposed of by the Tribunal so far. Since there is no Presiding Officer posted to the Tribunal and as there was no indication of any Presiding Officer being posted to the Tribunal and further, as the issue involved in those pending Original Applications are similar in every respect, by our order dated 28-8-2004 in W.P.Nos.17639 of 2001 etc., we directed the Registrar of the Tamil Nadu State Administrative Tribunal to transfer all the 55 pending Original Applications commencing from O.A.Nos.10211 of 1998 etc. to this Court for being dealt with along with these Writ Petitions. Accordingly, those Original Applications got transferred to this Court.
71. Out of the said pending Original Applications, in our considered opinion, such of those applicants who filed the Original Applications before the passing of such common order dated 12-7-2002 in O.A.No.5744 of 2001 and within a reasonable time thereafter, i.e., within one year from the date of passing of the last common order of the Tribunal dated 12-7-2002, can be granted the very same relief that is granted to the contesting respondents in W.P.Nos.17639 of 2001 etc. In our view those applicants should be held to be vigilant in agitating their rights by approaching the Judicial Forum at the earliest point of time or at least within the reasonable time after the pronouncement of the last order of the Tribunal dated 12-7-2002.
72. Apart from the above said aspect as regards the relief that could be restricted to such of those applicants who approached the Judicial Forum at the earliest point of time, as regards the selected candidates namely, 53 in number, with reference to whom, there is a final report by the Directorate of Vigilance and Anti Corruption Department in stating that their selection was not genuine, we are of the view that even if such selection cannot be upset at the present moment, inasmuch as there is no final verdict by any judicial forum confirming the above referred to final report, it will have to be held that their continuation in service will depend upon the ultimate outcome of the criminal proceedings pending as against the three members of the erstwhile Selection Committee and the past employee of the second petitioner. It is for this reason, during the pendency of these Writ Petitions, we directed the petitioners to widely publish about the hearing of these Writ Petitions and also by displaying appropriate notices in the different ranges to enable such of those selected candidates who were interested in defending their stand, could appear and make their say. Thereafter, when the Writ Petitions were taken up on 29-10-2004, M/s.N.Balamuralikrishna, Mr.A.V.Arun, Mr.S.Wilson, Mr.I.C. Vasudevan, Mr.C.P.Sivamohan and Mr.E.M.K.Yaswari Rao, learned counsel representing some of those selected candidates undertook to enter appearance on their behalf who were working in Virudunagar, Namakkal, Dindigul, Trichy, Tanjore, Coimbatore and Vellore District. The Special Government Pleader was directed to furnish all relevant copies on the concerned counsel. In fact, Mr.T.L.Ram Mohan learned senior counsel representing Mr.A.V.Arun made his submissions on their behalf and relied upon the various decisions of the Honble Supreme Court to contend that their selection should not be upset even if the order of the Tribunal and the conclusions were to be upheld.
73. In such circumstances, we pass the following order:
i) The Selection of both of Sub-Inspectors of Police (Men and Women) pursuant to the selection made for the vacancies notified for the year 1997-98 by resorting to zone-wise selection was invalid inasmuch as such zone-wise selection was impermissible under Special Rules governed for Tamil Nadu Police Sub-ordinate Service.
ii) Having regard to the fact that such selection and appointment came to be made as early as far back as in the year 1999, at this distant point of time, applying the ratio of the Honble Supreme Court referred to in earlier paragraphs (i.e.para 61 to 64), we are not inclined to set aside the said selection.
iii) Even as regards the 53 candidates with reference to whom the Directorate of Vigilance and Anti-corruption has submitted its final report holding that their selection was tainted with mal-practices, we hold that while their appointments cannot be set aside at the present juncture, their continuation in service will depend upon the final outcome of the criminal proceedings pursuant to the final report dated 18-6-2004.
iv) The concerned 53 persons should be informed about our orders relating to them by a specific notice to be issued to them.
v) While modifying the order of the Tribunal, we hold that from amongst the applicants who are the contesting respondents both Men and Women covered by W.P.Nos.17639 to 17660 of 2001, 17822 to 17827, 17830, 17899 to 17903 and 18349 to 18356 of 2003, such of those contesting respondents who have secured the lowest cut off marks in the category, namely, OC, BC, MBC, SC and ST after the interview, should be directed to undergo medical test and after following the usual formality of police verification about their antecedents, and in the event of those contesting respondents ultimately, coming out successful, should be placed on probation and sent for police training which should be followed by their appointment and regularization as per the prescribed regulations.
vi) Such of the contesting respondents who were not called for interview, shall be called for interview and after coming out successful in the interview, if their cut off marks is more than the last cut off marks in the respective category, they shall be directed to undergo medical test and after following the usual formality of police verification about their antecedents, and in the event of those contesting respondents ultimately, coming out successful, should be placed on probation and sent for police training which should be followed by their appointment and regularization as per the prescribed regulations.
vii) The above said direction will also hold good in respect of the applicants who have filed O.A.Nos.10211 and 10324 of 1998, 1354, 4693 and 6796 of 1999, 955, 4212, 5668, 5669, 5671, 6659 and 8616 of 200 0, 2557, 6301 and 6746 of 2001, 1920, 2189, 2286, 2424, 3073, 3633, 3 745, 3751, 3999, 4194, 5001, 5142, 5518, 5546, 5687, 5688, 6412, 6429 , 6458 and 6459 of 2002 and 18, 19, 129,330, 388, 389, 796, 2130 of 2 003.
viii) The other Original Applications, namely, O.A.Nos. 2579, 2715, 3 864, 3929, 3930, 4084 of 2003 and 26, 78, 207, 1625 and 1626 of 2004 as well as W.P.Nos.32253, 32255, 32499, 33155, 33136, 22344, 22015, 2 3063 and 34275 of 2004 are dismissed on the ground of delay and laches.
ix) The petitioners-State Government are directed to take steps against the concerned Officers in accordance with the Tamil Nadu Pension Rules, based on the outcome of the criminal proceedings.
x) We direct the petitioners to follow the above said directions and complete the above said exercise and issue appropriate orders as regards the final outcome within four weeks from the date of receipt of copy of this order.
The Writ Petitions as well as the Original Applications are disposed of with the above directions. No costs. Consequently, all connected W.P.M.Ps. are closed.
Index: Yes Internet: Yes suk To
1. The Secretary, The State of Tamil Nadu, Home (Police V) Department, Fort St.George, Chennai-9.
2. The Chairman, Tamil Nadu Uniformed Services Recruitment Board, No.4, 9th Cross Street, Indira Nagar, Chennai-20.
3. The Registrar, Tamil Nadu Administrative Tribunal, Chennai-104.