Madras High Court
T.Vivek vs The State Of Tamilnadu on 13 October, 2022
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
W.P(MD)No.21216 of 2022 and batch
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.10.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P(MD)Nos.21216, 21402, 21455, 21456, 21751, 21810, 22183,
22667, 23209, 23210, 23535, 23573 and 23607 of 2022
and
W.M.P.(MD)Nos.15416, 15562, 15611, 15612, 15918, 15974,
16361, 16819, 17613, 17642 and 17643 of 2022
W.P.(MD)No.21216 of 2022:-
T.Vivek ... Petitioner
Vs.
1.The State of Tamilnadu,
Represented by its Principal Secretary,
Home Department, Secretariat,
Chennai - 600 009.
2.The Chairman,
Tamilnadu Uniformed Services Recruitment Board,
Old Commissioner of Police Office Campus,
Egmore, Chennai -8.
3.The Member Secretary,
Tamilnadu Uniformed Services Recruitment Board,
Old Commissioner of Police Office Campus,
Egmore, Chennai -8.
4.The Director General of Police,
O/o the Director General of Police,
Tamilnadu, Chennai.
https://www.mhc.tn.gov.in/judis
1/12
W.P(MD)No.21216 of 2022 and batch
5.The Director,
Tamil Nadu Fire and Rescue Services,
Rukmani Lakshmipathy Road,
Egmore, Chennai - 600 008.
6.The Superintendent of Police,
O/o.The Superintendent of Police Office,
Thanjavur, Thanjavur District. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorarified Mandamus, calling for the
records relating to the impugned order passed by the 5th respondent in his
proceedings Na.Ka.No.10824/Aa1/2019 dated 24.08.2022 and quash the same
as illegal and consequentially to direct the respondents to consider the
petitioner for appointment to the post of Grade II - Police (Fire Man) in
pursuant to the notification No.1/2020 dated 17.09.2020 within the period that
may be stipulated by this Court.
For Petitioner : Mr.H.Mohammed Imran,
For M/s.Ajmal Associates.
For Respondents : Mr.Veerakathiravan,
Additional Advocate General,
Assisted by Mr.S.P.Maharajan,
Spl. Government Pleader.
https://www.mhc.tn.gov.in/judis
2/12
W.P(MD)No.21216 of 2022 and batch
COMMON ORDER
Heard the learned counsel for the writ petitioners and the learned Additional Advocate General assisted by the learned Special Government Pleader for the respondents.
2.TNUSRB Chennai issued notification dated 17.09.2020 calling for applications for the post of Grade-II Police Constable/Grade-II Jail Warden/Fireman. Common recruitment examination for the year 2020 was also conducted. The writ petitioners herein applied in response to the said notification and expressed their preference for being appointed as Fireman. The writ petitioners cleared the written test, physical endurance test and physical efficiency test. The names of all the writ petitioners herein find mention in the provisional selection list published by TNUSRB for the post of Fireman. The said list was sent to the Director of Fire Services for verification of character and antecedents. When the verification exercise was undertaken, it came to be known that the writ petitioners herein were involved in criminal cases. In the case of the petitioner in W.P.(MD)No.23607 of 2022, the criminal case came to be registered after the petitioner applied in response to the recruitment notification. Except in the case of the petitioners in https://www.mhc.tn.gov.in/judis 3/12 W.P(MD)No.21216 of 2022 and batch W.P.(MD)Nos.23209 and 23210 of 2022 namely, Karuppasamy and Karthikiyan in all other cases, the cases had ended in infavour of the writ petitioners. Either the criminal case had ended in acquittal or it had been quashed on merits or it has been quashed on the basis of compromise entered into between the parties. In some cases, the name had been deleted, when the final report was filed. Notwithstanding the said fact, the first respondent has passed the impugned orders by invoking the provision under Sub Rule 3 of Rule 5 B of the Special Rule for Tamil Nadu Fire Subordinate Service. Challenging the same, these writ petitions have been filed.
3.The learned counsel for the petitioners reiterated all the contentions set out in the respective affidavits filed in support of the writ petitions and submitted that the impugned orders will be to be set aside and writ petitions must be allowed and the first respondent must be directed to issue orders of appointment.
4.The respondents have filed a detailed counter affidavit. The learned Additional Advocate General took me through its contents. The core arguments of the respondents is that the employer is entitled to verify the character and antecedents and if found unsuitable, the employer can always decline to appoint https://www.mhc.tn.gov.in/judis 4/12 W.P(MD)No.21216 of 2022 and batch the candidate even if he had been provisionally selected for appointment. The learned Additional Advocate General relied on the un-amended rule in support of his contention. In the alternative, he pleaded that the introduction of Sub Rule 3 in Rule 5 B does not make any major departure. It does not restrict the field of competition. It only adds an extra filter which the employer is competent to do. In this regard, the learned Additional Advocate General placed heavy reliance on two decisions of the Hon'ble Supreme Court namely, reported in (2013) 4 SCC 540 (Tej Prakash Pathak and Others Vs. Rajasthan High Court and Others) and (2017) 1 SCC 322 (V.Lavanya and Others Vs. State of Tamil Nadu Rep. by its Principal Secretary and Others). He drew my attention to the relevant paragraphs set out in the two decisions. He would also point out that merely because a candidate has been included in the selection list, he does not acquire any vested right to be appointed. In this case, even before the conclusion of the verification process, Sub Rule 3 had been introduced in the statue book and therefore, the petitioners' case will have to tested only in the light of the amended provision. He would also add that in some of the cases, there has been a suppression of involvement in the criminal cases. He strongly contended that in a recent decision the Hon'ble Supreme Court had authoritatively held that an act of suppression will have to be viewed seriously and the nature and gravity of the case in which the candidate was involved and https://www.mhc.tn.gov.in/judis 5/12 W.P(MD)No.21216 of 2022 and batch which was suppressed is not relevant. He referred to the decision made in S.L.P.No.20860 of 2019 dated 26.09.2022 (Sathish Chandra Yadav Vs. Union of India and Others) and the decision reported in 2022 SCC Online SC 597 (State of Rajasthan and Others Vs. Chetan Jeff). He pressed for dismissal of the writ petitions.
5.I carefully considered the rival contentions and went through the materials on record. There is no doubt that the recruitment process commenced in the year 2020. When the recruitment process commenced, Rule 5 B of Special Rules for Tamil Nadu Fire Subordinate Service read as under:-
5 B. Verification of character and antecedents.._ (1) The list of candidates who are declared fit during the medical examination shall be sent by the Tamil Nadu Unformed Services Recruitment Board along with their temporary and permanent addresses to the Director General of Police, Tamil Nadu for verification of their character and antecedents. A police verification report in respect of each such candidate shall be sent to the Tamil Nadu Uniformed Services Recruitment Board, indicating therein the follows:-
(i) whether he has more than one wife living.
(ii) whether his character and antecedents are such as to qualify him for the service; and https://www.mhc.tn.gov.in/judis 6/12 W.P(MD)No.21216 of 2022 and batch
(iii) the details of criminal cases, if any, in which he is involved.
(2) A candidate who has more than one wife living or who has convicted in any criminal case or in respect of whom a charge sheet is pending in a Court of law or against whom a criminal case is pending investigation shall be liable for disqualification.”
6.A careful reading of the aforesaid rule indicates that conviction in a criminal case or pendency of a criminal case alone operated as disqualification. Vide G.O.(Ms) No.386, Home (Police-XVII) Department dated, 14.09.2021, the following Sub Rule was introduced:-
AMENDMENT.
In the said Special Rules, in rule 5B, after sub-rule (2), the following sub-rule shall be inserted, namely:-
(3) No person shall be eligible for appointment to the Service by direct recruitment unless he satisfies the appointing authority that he has not involved in any criminal case before police verification.
Explanation (1) .-- A person who is acquitted or discharged on the benefit of doubt or due to the fact that the complainant turned hostile shall be treated as a person involved in a criminal case.
https://www.mhc.tn.gov.in/judis 7/12 W.P(MD)No.21216 of 2022 and batch Explanation (2).-- A person involved in a criminal case at the time of police verification and the case is yet to be disposed of and subsequently ended in honourable acquittal or treated as mistake of fact shall be treated as not involved in a criminal case and he can claim right for appointment only by participating in the next recruitment”.
7.In my view, introduction of Sub Rule 3 added an additional ground of disqualification. This rule was not in the rule book, when the writ petitioners applied in response to the recruitment notification. As rightly pointed out by the learned counsel for the writ petitioners, their rights will have to be governed by the rule position that prevailed when the selection process commenced. The Hon'ble Supreme Court in the decision reported in (2010) 13 SCC 467 (State of Bihar and Others Vs. Mithilesh Kumar) held that the norms or rules that existed on the date when the process of selection begun will control such selection and any alteration to such norms would not affect the continuing process, unless the same was given retrospective effect. A careful reading of G.O. (Ms) No.386, dated 14.09.2021 indicates that it was not meant to operative retrospectively but only prospectively. The learned Additional Advocate General placed heavy reliance on the decision reported Tej Prakash Pathak's case supra. Though the said decision is fairly supportive of the stand now taken by the respondents, the final paragraph indicates that no https://www.mhc.tn.gov.in/judis 8/12 W.P(MD)No.21216 of 2022 and batch authoritative pronouncement was made. The said decision concludes as follows “whether such a principle should be applied in the context of the “rules of the game” stipulating the procedure for selection more particularly when the change sought is to impose a more rigorous scrutiny for selection requires an authoritative pronouncement”. The matter was referred to a Larger Bench and the decision is still awaited. Therefore, I have to necessarily come to the conclusion that no definitive pronouncement was rendered in the said decision. The subsequent decision of the Hon'ble Apex Court reported in (2017) 1 SCC 322 (V.Lavanya and Others Vs. State of Tamil Nadu Rep. by its Principal Secretary and Others) proceeds on the premise that an authoritative pronouncement had been rendered in Tej Prakash Pathak's case which is actually not the case. I am, therefore, inclined to follow Mithilesh Kumar's case.
8.All the impugned orders are anchored only on the amended rule namely, Sub Rule 3 of Rule 5 B. I have held that since it adds one more category of disqualification and it was introduced only after the commencement of the recruitment process, the petitioners cannot be prejudiced by the same. On this ground, the impugned orders are set aside and the writ petitions are allowed. The first respondent is directed to issue orders of appointment to the https://www.mhc.tn.gov.in/judis 9/12 W.P(MD)No.21216 of 2022 and batch writ petitioners herein within a period of eight weeks from the date of receipt of a copy of this order.
9.Of course in some of the cases, it is alleged that there has been an act of suppression. Liberty is given to the first respondent to revisit the issue on merits and in accordance with law. No costs. Consequently, connected miscellaneous petitions are closed.
13.10.2022
Index : Yes / No
Internet : Yes/ No
ias
To:
1.The Principal Secretary,
Home Department, Secretariat,
Chennai - 600 009.
2.The Chairman,
Tamilnadu Uniformed Services Recruitment Board, Old Commissioner of Police Office Campus, Egmore, Chennai -8.
3.The Member Secretary, Tamilnadu Uniformed Services Recruitment Board, Old Commissioner of Police Office Campus, Egmore, Chennai -8.
4.The Director General of Police, O/o the Director General of Police, Tamilnadu, Chennai.
https://www.mhc.tn.gov.in/judis 10/12 W.P(MD)No.21216 of 2022 and batch
5.The Director, Tamil Nadu Fire and Rescue Services, Rukmani Lakshmipathy Road, Egmore, Chennai - 600 008.
6.The Superintendent of Police, O/o.The Superintendent of Police Office, Thanjavur, Thanjavur District.
https://www.mhc.tn.gov.in/judis 11/12 W.P(MD)No.21216 of 2022 and batch G.R.SWAMINATHAN, J.
ias W.P(MD)Nos.21216, 21402, 21455, 21456, 21751, 21810, 22183, 22667, 23209, 23210, 23535, 23573 and 23607 of 2022 13.10.2022 https://www.mhc.tn.gov.in/judis 12/12