Madras High Court
M.Jeyanthi Meenambigai vs ) The Government Of Tamil Nadu on 11 October, 2012
Author: S.Manikumar
Bench: S.Manikumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11/10/2012 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P(MD)No.8870 of 2010 M.Jeyanthi Meenambigai ... Petitioner Vs... 1) The Government of Tamil Nadu, Represented by its Director of Medical and Rural Health Services, Chennai-6. 2) The Director, Professional and Executive Employment Office, Santhome, Chennai-4. 3) The District Employment Officer, District Employment Office, Madurai. ... Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Mandamus, directing the respondents 1 and 2 to consider the appointment of the petitioner as Physiotherapist following the sub caste reservation in the recruitment of 15 Physiotherapists as per G.O.Ms.No.50, dated 29.04.2009 for the Tamil Nadu Arunthathiyars (Special Reservation of seats in Educational institutions including Private Educational Institutions and of appointments of posts in the services under the State within the Reservation for the Scheduled Castes) Act, 2009. !For Petitioner ... Mr.T.Lajapathi Roy ^For respondents... Mr.T.S.Mohamed Mohideen, Additional Government Pleader. :ORDER
The petitioner belonging to Hindu - Arunthathiyar (SC) Community has registered her educational qualifications in the employment exchange. It is her contention that the Government have issued G.O.Ms.No.50, Tamil Nadu Arunthathiyars (Special Reservation of seats in Educational institutions including Private Educational Institutions and of appointments of posts in the services under the State within the Reservation for the Scheduled Castes) Act, 2009, dated 29.04.2009 providing 3% special reservation, for Arunthathiyar within the reservation for SC community.
2. Recruitment of 15 posts of Physiotherapists was taken up by the first respondent. Out of 79 candidates nominated to the appointing authority, by the Director, Professional and Executive Employment Office, Chennai, the second respondent herein, there is no provision for 3% reservation for the members of SC Arunthathiyar community. As the recruitment process has been taken up, after the coming into force of the Act, the respondents ought to have provided for 3% special reservation and accordingly, nominated candidates belonging to SC Hindu Arunthathiyar community, who have registered their educational particulars, with the third respondent employment exchange.
3. Placing reliance on a decision of this Court in N.Sathya and others Vs.Chairman, Teachers Recruitment Board, Chennai and others, reported in (2010) 4 MLJ 995, Mr.T.Lajapathi Roy, learned counsel for the petitioner submitted that, as per the special enactment, the petitioner has a statutory right to be considered, for the post of Physiotherapist.
4. On the basis of rejoinder affidavit, learned counsel for the petitioner further submitted that on 11.06.2010, the Director, Professional and Executive Employment Office, Chennai, the second respondent herein, has fixed the cut off dates, as 20.07.2005 for SC (General Priority), 19.06.2008 for SC(General Non Priority) and 28.08.1998 for SC(Women Non Priority). As per the above cut off dates, totally, 79 candidates have been sponsored to the first respondent, in the ratio of 1:5 and that no cut off date was indicated for S.C.Arunthathiyar community.
5. According to the learned counsel for the petitioner, the petitioner has registered her educational qualification on 17.11.1999 and the cut off date for SC community (Women Non Priority) is 28.08.1998. He also submitted that out of the three posts allotted to 3 SC candidates, one post has to be provided for a candidate, belonging to SC Hindu Arunthathiyar community and consequently, five persons from the said community ought to have been sponsored from the employment exchange. He further submitted that had the respondents implemented the sub caste reservation, as provided for as per the enactment, the petitioner would have had the chances of being appointed to the post of Physiotherapist and hence prayed for the relief.
6. The District Employment Officer, Professional and Executive Employment Exchange Branch Office, Madurai, in his counter affidavit, has submitted that the petitioner has initially registered her name with the Director, Professional and Executive Employment Office, Chennai, the second respondent herein, on 17.11.1999 under Regn.No.1999/F/13488 with her Physiotherapist qualification. She has been classified as SC (Arunthanthiyar) in the Professional and Executive Employment Exchange Branch Office, Madurai, after the implementation of G.O.Ms.No.61, Adi Dravidar & Tribal Welfare Department, dated 29.05.2009. Her date of birth is 09.01.1978. Consequent to the formation of a New Branch Office for Professional courses, at Madurai, covering over 16 districts, the registration of the petitioner has been transferred to District Employment Officer, Professional and Executive Employment Exchange Branch Office, Madurai, the third respondent, with effect from 16.10.2008. Her registration was last renewed during November 2008 and that the same was valid upto 2011. The Director, Professional and Executive Employment Office, Chennai, the first respondent has notified 15 vacancies of Physiotherapist to the second respondent, under which, three posts have been earmarked for SC community (SC- Pry-1, SC-General-N.Pry-1, SC-Women-N.Pry-1). He further submitted that the second respondent is the centralised nominating authority for professional candidates and the cut off date of seniority of candidates has been fixed and published. As per the cut off details, communicated in letter No.2010F0050 and 2010GO167, dated 11.06.2010 of the second respondent, the cut off dates for the vacancies reserved for S.C.General priority was 20.07.2005, for Inter caste Marriage category and 31.05.2010 for widow category. The cut off for S.G.General Non Priority was 19.06.1998 and SC Women Non Priority was 28.08.1998.
7. It is the further submission of the District Employment Officer, Madurai that the Directorate requested the third respondent to nominate suitable eligible candidates from the live register of the branch office, Madurai, so as to consolidate and nominate the candidates, against the vacancies, as per the above cut off dates. Accordingly, the third respondent has nominated the candidates for the above vacancies, vide letter dated 08.06.2010. As the petitioner had registered her name only on 17.11.1999, her name was not considered for nomination along with SC General, for whom, the "cut off date for SC Non Priority (Women) 28.08.1998). For the abovesaid reasons, the third respondent has submitted that since the nomination of the petitioner was on 17.11.1999, her name could not be sponsored.
8. Record of proceedings shows that on 08.09.2010 in M.P.(MD)No.1 of 2010, a direction has been granted to the respondents to keep one post vacant in terms of the prayer made by the petitioner, pending disposal of the writ petition.
9. Learned counsel appearing for the parties submitted that the post is still vacant.
10. Even though, the petitioner has sought for a Mandamus, directing the respondents to consider her appointment to the post of Physiotherapist in terms of reservation as provided for in G.O.Ms.No.50, dated 29.04.2009 and further submitted that the respondents ought to have taken note of the same, while initiating recruitment process, for the post of Physiotherapist, the counter affidavit filed by the District Employment Officer, District Employment Office, Madurai, is silent, as regards the implementation of the G.O.Ms.No.50, dated 29.04.2009 which provides for special reservation. The counter affidavit proceeds only on the basis of cut off dates, fixed by the Director, Professional and Executive Employment Exchange Office, Chennai, and the nomination made by the District Employment Officer, Madurai, the third respondent herein.
11. In W.P(MD)No.12552 of 2009 etc. batch of writ petitions, this Court has considered the objects and reasons for earmarking 3% reservations for Schedule Caste Arunthathiars. Having the benefit of the Judgment of Justice K.Chandru, this Court deems it fit to reproduce paragraph Nos.5 to 10 from the order made in W.P.(MD)No.12552 of 2009 etc. batch dated 08.12.2009.
"5.The Statement of Objects and Reasons appended to the Act referred to the Report of the One Man Committee of Inquiry headed by Justice M.S.Janarthanam which had submitted its report on 22.11.2008. The Committee recorded that the Arunthathiyar Community in Tamil Nadu have a population of 18,61,457 from out of the total population of Scheduled Castes of 1,18,57,504 as per 2001 Census Report. The respective percentage of population of Arunthathiyars in the total population of Scheduled Castes worked out is 15.70%. Therefore, the Committee after finding that the representation of the Arunthathiars in the services under the State Government was also incredibly the lowest since the major portion of such job opportunities had been taken by the other sub castes within the Scheduled Castes, recommended a quota within the reservation limit made for the Scheduled Caste Community.
6. Accepting the report, the Act was enacted by the Tamil Nadu State Legislature. As per Section 1(3) of the Act, the Act was made to come into force on such date as the State Government may, by notification, appoint.
7. Section 4 of the Act reads as follows:-
"4.Reservation in appointments or posts in the services under the State:- Notwithstanding anything contained in the 1994 Act or the 2006 Act or in any other law for the time being in force or in any judgment, decree or order of any Court or other authority, having regard to the social and educational backwardness of Arunthathiyars included in the Scheduled Casts, sixteen per cent of the appointments or posts reserved for the Scheduled Castes shall be offered to Arunthathiyars, if available, in appointments or posts in the services under the State, on preferential basis amongst the Scheduled Castes, in such manner as may be prescribed.
Explanation-For the purposes of this Act, "service under the State" includes the services under -
i) the Government;
ii)the Legislature of the State;
iii)any local authority;
iv)any Corporation or Company owned or controlled by the Government; or
v) any other authority in respect of which the State Legislature has power to make laws." (Emphasis added)
8. Under Section 14, if any difficulty arises in giving effect to the provisions of this Act, the Government may, by an order, published in the Tamil Nadu Gazette, can make such provisions which are not inconsistent with the provisions of this Act as may appear to them to be necessary or expedient for removing the difficulty. Such a power to grant directions was however restricted to a two year period from the date of the enactment.
9. The State Government by its order in G.O.Ms.No.50, Adi Dravidar and Tribal Welfare Department dated 29.04.2009 has notified the date of coming into force of the Act as 29.04.2009. Paragraph 3 of Notification II, reads as follows:-
3.Reservation of seats for Arunthathiyars:- In the sixteen per cent of seats offered to Arunthathiyars within the seats reserved for Scheduled Castes for admission in Educational Institutions including Private Educational Institutions and of appointments or posts in the services under the State, the first seat shall be offered to Arunthathiyars as illustrated below:- "The seats to Arunthathiyars shall be offered in the rotation 2,32 and 66";, the following expression shall be substituted, namely:- "The seats to be allotted to Arunthathiyars on preferential basis shall be offered in the horizontal rotation such as 2,32 and 66. The preferential seats if filled up, it does not mean that the other qualified Arunthathiyars shall not compete with the rest of the Scheduled Castes members on inter-se merit basis; vice versa, if no qualified Arunthathiyars are available to fill up the preferential seats, it does not mean that the vacancies so arising shall not be filled up by the Scheduled Castes members on merit basis";.
10. Subsequent to the notification, the State Government also issued G.O(Ms)No.61 Adi Dravidar and Tribal Welfare (TD2) Department dated 29.05.2009 by amending the earlier Rules. The amendment reads as follows:- In the said Rules, in rule 3 in the illustration for the expression "The seats to Arunthathiyars shall be offered in the rotation 2,32 and 66";, the following expression shall be substituted, namely:- "The seats to be allotted to Arunthathiyars on preferential basis shall be offered in the horizontal rotation such as 2,32 and 66. The preferential seats if filled up, it does not mean that the other qualified Arunthathiyars shall not compete with the rest of the Scheduled Castes members on inter-se merit basis; vice versa, if no qualified Arunthathiyars are available to fill up the preferential seats, it does not mean that the vacancies so arising shall not be filled up by the Scheduled Castes members on merit basis"
12. In Sathya v. Chairman, Teachers Recruitment Board reported in 2010 (4) MLJ 995, a similar issue, have come up for consideration, wherein, the petitioners therein have sought for a mandamus to implement the Government Order in G.O.Ms.No.50, Adi Dravidar and Tribal Welfare (TD-2) Department, dated 29.04.2009. In the said writ petitions, the recruitment process was not over. Taking note of the subsequent clarifications issued by the Government in the matter of prescribing the roster in G.O.Ms.No.65, Personnel and Administrative Reforms Department, dated 27.05.2009 and the decisions of the Hon'ble Supreme Court, this Court has issued directions to the Electricity Board to work out the number of posts available for Schedule Caste Arunthathiar candidates and issue further directions that if the petitioners therein in W.P(MD)No.17454 of 2009 comes within the preferential quota, then her case should be considered for appointment.
13. On the aspect as to whether any other Schedule Caste Arunthathiar has registered in the Professional and Executive Employment Exchange, Chennai or at the Branch Office at Madurai, Mr.T.S.Mohamed Mohideen, learned Additional Government Pleader was directed to get instructions from the respondents.
14. On instructions, learned Additional Government Pleader submitted that there are 25 non priority SC Arunthathiar candidates with suitable educational qualifications for the post of Physiotherapist and they have registered with District Employment Office and Professional and Executive Employment Branch office, Madurai and in the list, the petitioner stands at the second position, in seniority.
15. Admittedly, Professional and Executive Employment Exchange Office, Madurai has not sponsored any Schedule Caste Arunthathiar candidates for the post of Physiotherapist. When the Government have made a special reservation of seats in educational institutions, including Private Educational Institutions and appointments of posts in the services, within the reservation, by Act 2009, providing 3% of reservation for Scheduled Caste Arunthathiar candidates, the respondents ought to have taken note of the same, when notifying the vacancies in the year 2010. The abovesaid Act came into effect from the year 2009 onwards. The recruitment has started only in the year 2010.
16. In the above said circumstances, the decisions relied on by the learned counsel for the petitioner particularly, in N.Sathya's case, reported in 2010 (4) MLJ 995 stated supra, is squarely applicable to the facts of the present case. As one post was directed to be kept vacant, the respondents are directed to take steps for sponsoring 5 candidates, who have satisfied the educational qualifications prescribed for the post of Physiotherapist, in the order of seniority from the Professional and Executive Employment Exchanges and consider the case of the petitioner along with other eligible candidates, for filling up the post, directed to be kept vacant. As the statutory reservation has not been implemented, considering the object and pendency of this writ petition for two years, it is desirable that the orders of this Court be implemented, as expeditiously as possible, preferably, within a period of two months from the date of receipt of a copy of this order.
17. The Writ petition is disposed of accordingly. No costs. Consequently, connected Miscellaneous Petitions are closed.
sms/rj2 To
1.The Government of Tamil Nadu, represented by its Director of Medical and Rural Health Services, Chennai-6.
2.The Director, Professional and Executive Employment Office, Santhome, Chennai-4.
3.The District Employment Officer, District Employment Office, Madurai.