Madras High Court
Dr.Olga George vs State Of Tamil Nadu on 5 September, 2014
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.09.2014 CORAM: THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN Writ Petition No.29825 of 2013 and M.P.No.1 of 2013 Dr.Olga George, M.D(Hom) ... Petitioner vs. 1.State of Tamil Nadu, Rep. by its Principal Secretary to Government, Health and Family Welfare Department, Secretariat, Fort St.George, Chennai - 600 009. 2.The Tamil Nadu Public Service Commission, Represented by its Secretary, Greams Road, Chennai. 3.The Commissioner, Directorate of Indian Medicine and Homeopathy, Arumbakkam, Chennai -106. 4.Dr.Senthil Kumaran ... Respondents Petition filed under Article 226 of the Constitution of India for the issuance of writ of Certiorarified mandamus, to quash the records of the first respondent in G.O.Ms.No.344 Health and Family Welfare (IM1-1) Department, dated 20.12.2011 insofar as it relates to the appointment of the 4th respondent herein in the post of Professor (Homeopathy) as stated in S.No.4 of its Annexure and to consequently direct the respondents 1 to 3 to appoint the petitioner as Professor (Homeopathy) against the post at point No.5 of the roster reserved for General (Women) category candidates as per G.O.Ms.No.55 (Personnel and Administration Reforms (S) Department, dated 08.04.2010. For Petitioner : Ms.N.Kavitha For Respondents : Mr.R.Ravichandran Addl.Govt.Pleader for R1 and R3 Ms.C.N.G.Niraimathi for R2 Mr.J.Saravanavel for R4 O R D E R
The Tamil Nadu Public Service Commission (TNPSC), the second respondent herein, has issued an advertisement in Advertisement No.208, dated 29.07.2009, inviting applications from eligible candidates for direct recruitment to various posts, including 10 posts of Professor (Homeopathy).
2. The petitioner applied for the post of Professor (Homeopathy). The 4th respondent is also one of the applicants. While the petitioner belongs to Other Community (Category), the 4th respondent belongs to Most Backward Community.
3. The selection is based on written test and oral test. Based on the marks obtained in the written test and oral test, rank list for the post of Professor (Homeopathy) in the Department of Indian Medicine and Homeopathy in Tamil Nadu Medical Service 2007-2008 was published. The said rank list contains the names of 23 candidates based on the marks obtained in the written examination and oral test. The petitioner has been ranked at Serial No.5 while the 4th respondent at Sl.No.17. Besides indicating the marks obtained in the written test and oral test, the rank list also indicates the community to which the candidate belongs.
4. The selection is made in the order of communal rotation specified in the Schedule as stated in Section 22(c) of the Tamil Nadu State and Subordinate Services Rules. Schedule III is nothing but 200 Point Roster providing selection based on communal reservation. The aforesaid facts are not in dispute by the parties. In this case, the first 10 Roster points are to be allotted based on the rank read with the communal reservation.
5.(i) The grievance of the petitioner is that Dr.J.Pooja Anbu, who is shown at Sl.No.9 in the rank list is allotted against Roster point 5, which is meant for General Turn (Women). It is the case of the petitioner that General Turn should be allotted to the person based on the marks secured in the selection irrespective of the community (category). Hence, according to the petitioner, she should have been allotted at Roster point 5 instead of Dr.J.Pooja Anbu.
(ii)According to the petitioner, Dr.J.Pooja Anbu, who belongs to MBC and who ranks at Serial No.9, would get allotment at Roster point 3, but at the Roster point 3, Dr.Jayam, who ranks at Sl.No.2 and belongs to Most Backward Community was allotted.
(iii) Hence, the petitioner has come up with this writ petition that she should be allotted in the Roster point 5 in the place of Dr.J.Pooja Anbu and in that event, Dr.Pooja Anbu, who belongs to MBC and who ranks at Sl.No.9 would get selected at the Roster Point No.7 meant for MBC (General). In that event, Dr.K.Senthil Kumaran, the 4th respondent herein, who belongs to MBC (General) and who ranks at Sl.No.17 would not get selected. Hence, the petitioner has made him as one of the party respondents, as her prayer would ultimately result in non-selection of the 4th respondent.
6. The second respondent/TNPSC as well as the 4th respondent have filed their counter affidavit.
7. The aforesaid facts have not been denied by the TNPSC in their counter affidavit. The following passage from the counter affidavit is extracted in this regard:-
The Roster applicable to the post is as follows:-
GT Dr.Rathamani BC Women candidate SC(A) Dr.Kalaivani MBC/DC Dr.Jeyam Women occupies a General Turn BC Dr.Kannan GT(W) Dr.Pooja Anbu.J Since one GT vacancy already filled with one BC candidate, the other GT vacancy has to be necessarily filled up with MBC candidate SC Dr.Karthikeyan MBC/DC(W) Dr.Senthil Kumaran Men for Women BC(W) Dr.Sumathy As per the aforesaid passage, Dr.J.Pooja Anbu is selected against the General Turn (W) roster point.
8. But in the counter affidavit filed by the 4th respondent, it is stated that Dr.C.Jeyam, who belongs to MBC and who ranks at Sl.No.2, should be selected against Roster Point No.5, which is General Turn (Woman). Within the 10 Roster points, the 1st roster point, the 5th roster point and the 9th roster point are allotted to General Turn candidates, as per the Schedule III. While the 1st roster point is meant for General Turn (General), 5th roster point is meant for General Turn (Woman). Therefore, according to the 4th respondent, the two General Turn Roster points should be allotted from the first two rank holders. Accordingly, the 1st roster point shall go to Dr.P.Rathamani, who ranks at Sl.No.1 and who belongs to BC Community. Dr.C.Jeyam, who belongs to MBC and who ranks at Sl.No.2 in the rank list, shall be allotted to the 5th roster point, which is meant for General Turn (Women). But the TNPSC erroneously allotted Dr.J.Pooja Anbu at roster point 5, which is meant for GT(Woman). According to him, Dr.Pooja shall be allotted at Roster point 3, which is meant for MBC (General). If Dr.Pooja Anbu is appointed at Roster point 3, the 4th respondent, who belongs to MBC community would get accommodated at the Roster point 7, which is meant for MBC Woman as there is no MBC Woman candidate available. Hence, the whole confusion is due to the wrong allotment of roster point and according to him, this would not affect ultimately the selection.
9. Heard both sides
10. The learned counsel for the petitioner has pointed out that if Dr.Pooja Anbu is alloted against Roster point No.5, which is meant for GT (Woman), the petitioner shall be placed at the roster point meant for GT (Woman), since she has secured more marks than Dr.Pooja Anbu.
11. The learned counsel for the 4th respondent has reiterated the aforesaid averments made in the counter affidavit.
12. The learned counsel for the TNPSC strenuously contended that Dr.Jeyam, who ranks at No.2 and who belongs to MBC was selected and initially allotted at roster point No.5 and Dr.Pooja Anbu was allotted at Roster point No.3, which is meant for MBC (General). Thereafter, the principle of migration was made by migrating Dr.Jeyam to Roster point 3 and thereby, bringing Dr.Pooja Anbu to Roster point 5, as both of them belong to same MBC community. According to the learned counsel, it was done to safeguard the seniority of Dr.Jeyam, since she secured more marks than Dr.Pooja Anbu, and hence, Dr.Jeyam was ultimately placed at Sl.No.3 at the Roster point, while Dr.Pooja Anbu was placed at Sl.No.5 at the Roster point meant for General Turn.
13. This Court earlier directed the respondents to produce the original records. Accordingly, R.Sivasubramanian, Under Secretary and M.Rajkumar, Assistant Section Officer are present today with original records. I have also considered the submissions made by the learned counsel on either side.
14. It is relevant to extract the roster points as per Schedule III under Rule 22-C of Tamil Nadu State and Subordinate Services Rules.
"1.General Turn
2.Scheduled Castes (Arunthathiyars on preferential basis) (W)
3.Most Backward Classes and Denotified Communities (G)
4.Backward Classes (Other than Backward Class Muslims) (G)
5.General Turn (W)
6.Scheduled Castes (W)
7.Most Backward Classes and Denotified Communities (W)
8.Backward Classes (Other than Backward Class Muslims) (W)
9.General Turn (G)
10.Backward Classes (Other than Backwawrd Class Muslims)" (G)
15. It is relevant to extract herein below the rank list showing the names of the candidates, the community to which they belong and also the marks secured by them. The rank list is solely based on the marks secured in the selection process. Sl.No Name Register Number Community Mark 1 P.Rathamani 01002200 BC 261.00 2 C.Jeyam 00102004 MBC/DC 258.00 3 S.Saravanan 00102180 OTHERS 244.50 4 V.Kannan 00202006 BC 228.00 5 Olga George 00103059 OTHERS 228.00 6 R.Jeya Meera 01002160 BC 219.00 7 S.Sumathy 00202026 BC 213.00 8 A.Gopala Krishnan 01002143 BC 207.00 9 J.Pooja Anbu 00201151 MBC/DC 207.00 10 Suseela Rufus 00201227 BC 205.50 11 E.Rathnasabapathi 00201088 BC 205.50 12 P.Thiruvalluvan 00201220 BC 198.00 13 K.Radha 00201169 BC 196.50 14 K.Pandarinathan 01003056 BC 195.00 15 M.Rajakumar 00201226 BC 190.50 16 V.Baskar 00201086 BC 184.50 17 K.Senthil Kumaran 00201223 MBC/DC 180.00 18 N.Karthikeyan 00202018 SC 180.00 19 T.Saravanan 00201063 MBC/DC 177.00 20 K.Murugesan 01002231 BC 175.50 21 A.T.Senthil Kumar 00103061 BC 175.50 22 A.Esther Rani 01002141 BC 168.00 23 L.Kalaivani 00201167 SC 156.00
16. In my view, it is well settled that the GT vacancies shall be filled by the persons based on the rank, irrespective of the community (category) to which they belong to. Thereafter, each roster point shall be filled by the candidates belonging to the respective community, who has secured the highest rank (marks). By applying this well accepted principle, the following will be allotment of candidates against the roster points. Sl.No Roster Point Allotment of candidate Marks Rank as per the Rank List 1 General Turn Dr.P.Rathamani 261 1 2 Scheduled Castes (Arunthathiyars on preferential basis) Dr.L.Kalaivani 156 23 3 Most Backward Classes and Denotified Communities Dr.J.Pooja Anbu 207 9 4 Backward Classes (Other than Backward Class Muslims) Dr.V.Kannan 228 4 5 General Turn (Woman) Dr.C.Jeyam 258 2 6 Scheduled Castes (Woman) Dr.N.Karthikeyan (As no SC (Woman) candidate is available, SC (Man) was allotted) 180 18 7 Most Backward Classes and Denotified Communities (Woman) Dr.K.Senthil Kumaran 180 17 8 Backward Classes (Other than Backward Class Muslims) Dr.S.Sumathy 213 7 9 General Turn Dr.S.Saravanan 244.50 3 10 Backward Classes (other than Backward Class Muslims) Dr.Suseela Rufus 205.50 10
17. The emphasis of the submission of the learned counsel for TNPSC is that if Dr.Jeyam is placed at Roster point 5 and Dr.Pooja Anbu is placed at Roster point 3, that would seriously affect the seniority of Dr.Jeyam and therefore, the migration was made allotting Roster point 5 to Dr.Pooja Anbu and Roster point 3 to Dr.Jeyam, as they both belong to MBC.
18. In this connection, the learned counsel for the TNPSC has relied on Rule 35 and would submit that the aforesaid action is based on Rule 35(a) of the Tamil Nadu State and Subordinate Service Rules and the same is extracted hereunder:-
"35. a The seniority of a person in a service, class, category or grade shall, unless he has been reduced to a lower rank as a punishment, be determined by the rank obtained by him in the list of approved candidates drawn up by the Tamil Nadu Public Service Commission or other Appointing Authority, as the case may be, subject to the rule of reservation where it applies. The date of commencement of his probation shall be the date on which he joins duty irrespective of his seniority."
19. In my considered view, such a migration of candidates on the alleged ground to protect the seniority has no substance. The selection based on communal reservation is only to ensure selection of the respective communities as per the rules of reservation and it has nothing to do with seniority. The seniority will be determined based on the relevant Service Rules framed under Article 309 of the Constitution or by a separate law made in this behalf. In the absence of any such law, I am of the view that even if Rule 35(a) is applied, the reliance placed by the learned counsel for TNPSC on the following words " subject to the rule of reservation where it applies" cannot be understood that such a migration is permissible. The allotment of a candidate in a particular roster point against communal reservation, does not confer him any right relating to seniority.
20. For instance, in this case, the last rank holder namely Dr.L.Kalaivani, is allotted against Roster point 2, since she belongs to Scheduled Caste. She is allotted against SC Arunthathiyars (W), as no SC Arunthathiyar is available. But Dr.Kalaivani cannot be said to be senior to other candidates, who secured more marks as per the rank list. Dr.L.Kalaivani, though she secured 23rd rank, is able to secure selection and consequential appointment based on communal reservation provided under the Relevant Rules. That does not confer the benefit of seniority to Dr.Kalaivani. The same will apply to others who are appointed against the respective roster point based on the communal reservation. One cannot confuse with the communal reservation and the determination of seniority. The roster point based on communal reservation is only for the purpose of selection and the same has nothing to do with the seniority. The whole confusion has come due to the aforesaid migration of Dr.Jeyam and Dr.Pooja Anbu by the TNPSC. Though Dr.R.Jeya Meera and Dr.A.Gopalakrishnan ranks at 6 and 8 and got selected against BC vacancies, they gave up their claim for this post as they have been selected for some other post.
21. A person, who has got selected against a particular roster point because of his communal reservation, cannot seek to determine seniority, based on the roster points. While the seniority is normally based on the rank list, the selection is based on communal reservation. Hence, TNPSC is not justified in migrating Dr.Jayam and Dr.Pooa Anbu under the guise of protecting the seniority.
22. In fact, the judgment relied on by the learned counsel for TNPSC in W.P.No.17647 of 2004 dated 28.01.2011 [P.Kuppusamy v. The State of Tamil Nadu] does not support her case. In that case, the petitioner who belongs to BC community secured higher marks, but allotted against General Turn. The General Turn in that case was 20th roster point. The petitioner was ranked at No.5 but was allotted against 20th roster point meant for General Turn. Two other persons belonging to same BC community secured less marks and ranked below to him, were allotted against Roster points 7 and 16. The petitioner therein was treated as junior.
23. When the said question came up for consideration, the learned Judge framed two points for decision in that case,which are as follows:-
"(i) Whether fixation of seniority of the petitioner in Sl.No.20 in the selection is arbitrary, unjust and illegal?
(ii) Whether the case of BIMLESH TANWAR VS. STATE OF HARYANA ((2003) 5 SCC 604) could be made applicable to the petitioner or whether the said judgment has only prospective overruling?"
24. As far as Point no.1 is concerned, the learned Judge has categorically held that the fixation of seniority of the petitioner at Sl.No.20 is arbitrary, unjust and illegal. The learned Judge has also held that the petitioner shall be assigned the seniority at Sl.No.5 based on the rank list. While coming to the aforesaid conclusion, the learned Judge has followed the judgment of the Apex Court in Bimlesh Tanwar v. State of Haryana ((2003) 5 SCC 604).
25. In a judgment by a Coram of Two Hon'ble Judges of the Hon'ble Apex Court in P.S.Ghalaut vs. State of Haryana reported in AIR 1996 SC 351, a contrary view had been taken. But the said judgment was overruled by a Larger Bench of Three Hon'ble Judges of the Hon'ble Supreme Court in Bimlesh Tanwar v. State of Haryana.
26. In W.P.No.17647 of 2004, the selection took place before 2003 and that therefore, an argument was sought to be advanced that the said judgment in Bimlesh Tanwar's case (supra) would have prospective effect. The learned Judge rejected the contention holding that the law declared by the Supreme Court will have application unless it is stated by the Supreme Court that it will have prospective effect. In this case, there is no such difficulty since the selection took place subsequent to 2003. Hence, the learned Judge has framed the issue whether Bimlesh Tanwar's case (supra) would have prospective operation.
27. At this juncture, it is relevant to extract paragraph 13 of the judgment dated 28.01.2011, in W.P.No.17647 of 2004, which in turn extracted paragraph 40 of the judgment in Bimlesh Tanwar's case (supra) "13. The contention of Writ Petitioner is that the ratio of the subsequent decision in Bimlesh Tanwar's case has to be applied and that the reservation does not speak of fixation of seniority and that seniority is not to be fixed in terms of roster points. In Bimlesh Tanwar's case ((2003) 5 SCC 604, (Date of Judgment - 10.03.2003), the Supreme Court holding that seniority cannot be fixed in terms of roster points has held as under:
"40. An affirmative action in terms of Article 16(4) of the Constitution is meant for providing a representation of a class of citizenry who are socially or economically backward. Article 16 of the Constitution of India is applicable in the case of an appointment. It does not speak of fixation of seniority. Seniority is, thus, not to be fixed in terms of the roster points. If that is done, the rule of affirmative action would be extended which would strictly not be in consonance of the constitutional schemes. We are of the opinion that the decision in P.S. Ghalaut does not lay down a good law."
28. Therefore, it is made clear in the judgment in Bimlesh Tanwar's case (cited supra) that the selection made based on the roster point does not determine the seniority and therefore, there is no reason for the TNPSC to allot Dr.C.Jeyam to roster point 3 and to Dr.J.Pooja Anbu at roster point 5. In fact, Dr.Pooja Anbu cannot be allotted to roster point 5, which is meant for General Turn candidates, since the petitioner would have preference to roster point No.5 over Dr.Pooja Anbu as the petitioner secured more marks than Dr.Pooja Anbu and the petitioner has ranked above Dr.Pooja Anbu. Dr.Pooja Anbu does not compete with General Turn candidates as she ranks at Sl.No.9, while there are only 3 GT vacancies within the 10 roster points.. Those points are to be allotted to the first three rank holders, irrespective of their communities.
29. The learned counsel for the 4th respondent has also brought to my notice the judgment of learned judge of this Court in K.R.Shanthi v. Secretary to Government, Education Department reported in (2012) 7 MLJ 241, wherein, the following steps were laid for selection as per the roster points after considering the judgments of the Apex Court in this regard. Paragraph 14 of the judgment reads as follows:-
"14. A perusal of the above judgments would keep at least two things beyond any pale of doubt. Firstly, the roaster is not vacancy based, but the same is only post based. It identifies the number of posts earmarked for various categories under the vertical reservations and posts left behind for open quota as well as special reservations. Secondly, after so identifying the posts, it should be calculated as to how many vacancies are to be filled up under various categories in the current selection. If once the number of vacancies earmarked for each category in the current selection is identified by using the Roster, thereafter the Roster will have no further role to play in the matter of selection. After identifying the number of vacancies earmarked for various categories, the selection for each category has to be made purely based on merit following the method detailed below:
First Step:
(i) As against the number of vacancies identified for open quota, irrespective of caste, sex, physically challenged, etc., everyone should be allowed to compete based on merits.
(ii) The meritorious candidates should be first selected as against the above vacancies under open quota.
Second Step:
(iii) After completing the first step, moving on to the vertical reservation categories, selection has to be made for each category from amongst the remaining candidates belonging to the particular reserved category (vertical) based on merits. Third Step:
(iv) After completing the second step, horizontal reservation which cuts across the vertical reservation has to be verified as to whether the required number of candidates who are otherwise entitled to be appointed under the horizontal reservation have been selected under the vertical reservation.
(v) On such verification, if it is found that sufficient number of candidates to satisfy the special reservation (horizontal reservation) have not been selected, then required corresponding number of special reservation candidates shall have to be taken and adjusted/accommodated as against social reservation categories by deleting the corresponding number of candidates therefrom.
(vi) Even while filling up the vacancies in the vertical reservation, if, sufficient number of candidates falling under the horizontal reservation have been appointed, then, there will be no more appointment exclusively under the horizontal reservation. Caution:
(vii) At any rate, the candidates who were selected as against a post under open quota shall not be adjusted against the reserved quota under vertical reservations.
30. I find some force in the submission made by the learned counsel for the petitioner, relating to the erroneous allocation of roster point by allotting Dr.Pooja Anbu at the General Turn, who secured less mark than the petitioner, forcing her to approach this Court. Had Dr.Pooja Anbu been allotted against roster point 3, she would not have chosen to question the selection and would not have wasted her time and money, according to the learned counsel for the petitioner.
31. However, in my considered opinion, TNPSC did not commit this mistake deliberately and they were under the wrong impression due to the judgment in P.S.Ghalaut's case (cited supra) and the same was overruled subsequently. The law is settled thereafter by the two judgments of this Court. There is no infirmity in the selection of candidates and the only infirmity is in allocation of candidates against particular roster points.
32. Hence, I make it very clear that the allocation of Dr.Jeyam at roster point 3 and allocation of Dr.Pooja Anbu at roster point 5 is totally illegal. However, the aforesaid infirmity does not affect the ultimate selection. The TNPSC has not committed error in selecting candidates, but interchanging the candidates from one roster point to other point, if they belong to same community, is not warranted. However, I am concerned only about the selection and I am not dealing with the fixation of seniority. I make it clear that the selection based on communal reservation has nothing to do with fixation of seniority, as has been clearly declared by the Apex Court in Bhimlesh Tanwar's case (supra).
33. For the aforesaid reasons, the writ petition fails and the same is dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
05.09.2014 Index:Yes/No Internet:Yes/No Note: Issue the order copy on 16.09.2014 svki To
1.State of Tamil Nadu, Rep. by its Principal Secretary to Government, Health and Family Welfare Department, Secretariat, Fort St.George, Chennai - 600 009.
2.The Tamil Nadu Public Service Commission, Represented by its Secretary, Greams Road, Chennai.
3.The Commissioner, Directorate of Indian Medicine and Homeopathy, Arumbakkam, Chennai -106.
D.HARIPARANTHAMAN, J.
svki W.P.No.29825 of 2013 05.09.2014