Madras High Court
S.Subabalasundari vs Tamil Nadu Public Service Commission on 23 March, 2015
Bench: S.Tamilvanan, V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:23.03.2015 Coram THE HONOURABLE Dr.JUSTICE S.TAMILVANAN and THE HONOURABLE Mr.JUSTICE V.S.RAVI Writ Petition (MD)No.481 of 2015 and M.P.(MD)No.1 of 2015 S.Subabalasundari ... Petitioner vs. Tamil Nadu Public Service Commission, through its Secretary, Frazier Bridge Road, Chennai-600003. ... Respondent Writ petition filed under Article 226 of the Constitution of India, praying for issuance of an order in the nature of writ of mandamus, directing the respondent to consider the request of the petitioner, dated 08.01.2015, and to afford her an opportunity to participate in the Oral Test for the post of Assistant in the Madras High Court Service and pass such further or other orders as this Court may deem fit and proper, in the circumstances of the case. !For Petitioner : Mr.C.Arul Vadivel @ Sekar ^For Respondent : Mr.K.K.Senthil, Standing Counsel for TNPSC. :ORDER
(Order of the Court was made by S.TAMILVANAN,J) The writ petition has been filed invoking Article 226 of the Constitution of India, seeking an order in the nature of writ of mandamus, to direct the respondent to afford an opportunity to the petitioner to participate in the Oral Test for the post of Assistant in the Madras High Court Service, considering the petitioner's representation, dated 08.01.2015.
2. Heard the learned counsel appearing for the petitioner and the learned Standing Counsel appearing for the respondent, the Tamil Nadu Public Service Commission, Chennai.
3. It is not in dispute that the petitioner is a widow, since her husband died on 01.06.2013. She is holding Master's Degree in Tamil with M.Phil. In response to the Advertisement No.19/2013, published on 22.11.2013 by the respondent, inviting applications for Direct Recruitment to various posts, including 37 Assistant posts, in the Madras High Court Service, the petitioner made application through On-line for the post of Assistant, stating that she is a destitute widow of Backward class community. After scrutiny of the application, the petitioner was permitted to write the Written Examination held on 23.02.2014. The Registration Number allotted to the petitioner was 100105126 and the petitioner successfully passed in the written examination, which is not in dispute. As directed by the respondent, the petitioner sent all her certificates in support of her claim made in her On-line application and after verification of certificates, the register number of the petitioner was also published in the Provisional List of eligible candidates for admission to Oral Test to be held from 06.01.2015 to 08.01.2015. On 06.01.2015, the petitioner went to the respondent office to attend the interview, however, she was unreasonably not permitted to attend the interview on the ground that she possesses only 'B.C widow' certificate and not 'B.C Destitute widow' certificate, as stated in her application. Explaining the reasons, the petitioner made a representation, dated 08.01.2015, to the respondent, requesting to permit her to attend the interview on 08.01.2015. Since she was not permitted to attend the interview, the petitioner is before this Court with this writ petition.
4. According to the petitioner, she was denied opportunity by the respondent to participate in the oral test without any valid reason. It is her further contention that she was selected in the written test by the respondent, only after accepting the certificates sent by her and she was called for the oral interview, however, she was not permitted to attend the interview by the respondent, without any justifiable reason.
5. It is an admitted fact that the petitioner is a woman candidate, belongs to Backward Class Community and also a widow. In the counter the respondent has specifically stated that the petitioner had not produced certificate to show that she was a 'destitute widow' in support of her claim made in the application and hence she was not permitted to attend the interview. As per the Commission's Notification No.19/2013, dated 22.11.2013, there were 37 vacancies for the post of Assistant, including the Madras High Court Service. The respondent has also stated that considering the reservation quota, as per the notification, there were two vacancies for Backward Class ? Woman (BCW) and one vacancy for Backward Class ? Destitute Widow (BC DW). As contended by the learned counsel appearing for the petitioner, even in case of doubt to consider the petitioner as a 'B.C Destitute widow', there could have been opportunity given by the respondent, as it is not in dispute that the petitioner is a widow of Backward class (woman) eligible for the said category. She could have been permitted to attend the interview or oral test, subject to production of necessary certificate to show that she is a Destitute widow of BC (woman).
6. It is unfair on the part of the respondent, denying the legitimate right of the petitioner, a destitute widow of Backward Class, to participate in the interview and to get appointment. It is not known as to why opportunity was not given to the petitioner, though she has successfully come out in the written test. Learned counsel appearing for the respondent submitted that the petitioner was communicated by a Memo, in Memo No.3716, OTD-C3/2013, dated07.01.2015 by the respondent, for not considering her under the Backward Class Destitute Widow Quota. The said letter reads as follows:
"Though she has claimed in her application that she is a Destitute Widow, she has not submitted the Destitute Widow Certificate as prescribed in Para 4 of the Commission's Instructions to Candidates (Vide Note under the head Destitute Widow).
(She has submitted only the widow certificate issued by the Tahsildar, Nagapattinam Taluk)."
7. It is an admitted fact that after her selection in the written test, she was intimated for the oral test to be conducted on 06.01.2015 and 07.01.2015, however, she was not permitted to attend the interview on the intimated date 07.01.2015 and further, as per the postal receipt, it is seen that a memo was sent by Speed Post by the respondent only on 03.02.2015, after the filing of the writ petition on 12.01.2015. It is unfair and improper on the part of the respondent officials in intimating that she was not considered as 'B.C Destitute widow' on 03.02.2015. Had the memo was really prepared on 07.01.2015, it could have been posted on the very same date or at least on the next day and not after the filing of the writ petition, only in order to show that reasonable opportunity was given to the petitioner, to maintain principles of natural justice. It is seen that the memo was sent only on 03.02.2015 with the date 07.01.2015. Had there been any bonafide reason to reject her claim, the respondent could have informed the same at an earlier date so as to provide the petitioner an opportunity to produce certificate issued by Competent Authority, stating her as 'Destitute widow'.
8. Learned counsel appearing for the petitioner submits that the petitioner is a destitute widow of backward class community, for which proper certificate was obtained from the Revenue Divisional Officer, Aruppukkottai. The writ petitioner, being the sole candidate claiming appointment as B.C Destitute widow, having passed the written test, she should have been selected, subject to production of proof to show that she was a destitute, since she was admitted B.C widow, but that was not done by the respondent. It was further argued that the petitioner had applied only through on-line. The application was accepted and she was permitted to write the written examination and got through the examination, considering the fact that she is a widow of BC category. The respondent has not raised any issue that she is not a destitute widow of backward class earlier, hence, according to the counsel for the petitioner, the certificate could be obtained stating her a destitute, only on 20.03.2015 and produced.
9. Learned counsel appearing for the petitioner drew the attention of this Court to the decision of this Court in Secretary, TNPSC v. M.Chitra, reported in (2010) 2 MLJ 146, wherein a Division Bench of this Court has categorically decided that when there is an application for Service Commission Examination, a candidate need not send all his / her certificates and documents and there are certain basic documents such as certificates relating to educational qualification, etc., for which copies may be sent. Other certificates like community certificate, certificates relating to special consideration like sports certificate, NCC, NSS Certificates, etc., could be produced at the time of interview. It is well settled that the respondent cannot summarily reject any application in-limine without providing opportunity to substantiate the claim of the candidate. It cannot be denied that reservation in Government employment and educational institutions is based on the laudable object of uplifting the deserving people of Backward Class, Most Backward Class, Scheduled Caste and Scheduled Tribe, denotified communities, physically disabled and destitute widows. When a person is having the required educational and other qualifications and community certificate is not produced, subject to production of original community certificate at the time of interview, the candidate should be permitted otherwise it would adversely affect the rights of the eligible candidates to have their legitimate right.
10. A learned Single Judge of this Court in W.P.No.9336 of 2013, dated 04.09.2014 - S.Mahalakshmi vs. TNPSC, rep.by its Secretary, has held that when a person is claiming that she is a destitute widow, certificate to that effect could be produced even during the interview. It is argued on the side of the petitioner that in the instant case, the respondent officials unreasonably denied opportunity to an eligible candidate, without any justification, though she produced certificate showing her educational qualification and to prove that she is a B.C Woman (widow).
11.The defence raised by the respondent is that the petitioner had not produced the required documents to treat her as Backward Class Destitute Widow. The distribution of vacancies for the said post is stated in the counter as follows:.
SCG SCW SCDW SCAG SCA DW MBW/DCG MBC/DCW MBC/DC DW BCG BCW BCDW GTC GTW GTDW GT-EX CTG-DRTHO BCMG TOTAL 4 1 1 1 1 6 1 1 6 2 1 6 2 1 1 1 1 37 As contended by the learned counsel for the petitioner, even in the counter, the respondent has stated under the Table showing 'Distribution of vacancies"
extracted above, in the 10th column that BCW - 2 vacancies and in the 11th column BCDW-1 vacancy. Learned counsel appearing for the petitioner drew the attention of this Court to Page No.1 of the Additional Typed Set of Papers, which is a xerox copy of the Notification of the Tamil Nadu Public Service Commission. As per the Notification issued by the respondent in their website, annexed at page No.1 of the Additional Typed Set of Papers filed by the petitioner, the details of the marks obtained by the candidates, both in the written examination held on 23.02.2014 and at the oral test held on 06.01.2015 and 07.01.2015, for appointment by direct recruitment to the post of Assistant, including for the Madras High Court Service, are available. From the said details it is clear that no candidate has been selected under Backward Class Widow quota or Backward Class Destitute Widow Quota, for the reasons best known to the respondent. It is not in dispute that the petitioner produced certificate showing that she is a Backward Class Woman Candidate and also a widow, to be considered for the quota under Backward Class Destitute Widow. However, she was not considered for the said quota. At least, she could have been considered for quota for B.C.Woman, however, that was also not considered.
12. Learned counsel appearing for the respondents in support of his contention produced the following decisions:
(i) Bedanga Talukdar v. Saifudullah Khan, AIR 2012 SC 1803
(ii) J.P.Saradha v. The Chairman, TNPSC and another, W.A.(MD).No.603 of 2008
13. In Bedanga Talukdar v. Saifudullah Khan, reported in AIR 2012 SC 1803, the Hon'ble Apex Court in paragraph 28 has held as follows:
"28...... Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant Statutory Rules."
14. In J.P.Saradha vs. The Chaimrna, TNPSC and another, rendered in W.A.(MD)No.603 of 2008, dated 22.10.2008, a Division Bench of this Court held that the appellant therein (candidate) could be non suited for consideration of her candidature for the quota allotted for destitute widows for appointment for the post of Village Administrative Officer, despite the fact that she has no such certificate at the time of the Notification issued by Tamil Nadu Public Service Commission, the respondent herein.
15. We are of the view that the aforesaid decisions are not applicable to the facts and circumstances of the case. Only after verifying the On-line application, the petitioner was permitted by the respondent to write the written examination and on her getting through the examination, she was asked to submit her certificates, thereafter, she was called for oral interview on 06.01.2015. The petitioner herein submitted all her supporting documents to show that she is a backward class woman candidate and also 'widow', as per the certificate issued by the Tahsildar, Nagappattinam Taluk, apart from the documents, which would show her educational qualification.
16. It is not in dispute that as per Instructions to Candidate, paragraph 13(f) for the said recruitment, candidates were not required to submit any certificate in support of their claims regarding Age, Educational Qualifications, Experience, Community Certificates and certificates regarding their physical disability, etc., along with their application and the same were to be submitted by the candidates when called for by the Tamil Nadu Public Service Commission. It is also relevant to refer the averments made in the counter filed by the respondent, wherein it is stated that as per paragraph 5(iv) of the Instructions etc. to candidates, the claims of the candidates with regard to the date of birth, Educational/Technical Qualifications and community are accepted only on the information furnished by them in their applications and therefore, their candidature is provisional, subject to the Commission satisfying itself about age, educational/Technical qualifications, Community etc., of the candidate and mere admission to the interview or inclusion of name in the list will not confer on the candidate any right for appointment and the candidature is therefore provisional at all the stages and the Commission reserves the right to reject any candidature at any stage, even after the selection being made. However, the respondent cannot summarily reject the claim and deny the right of any candidate without assigning proper reason.
17. In the instant case, though the petitioner has passed the written examination held on 23.02.2014, she was not given opportunity to attend the oral test (interview) either on 06.01.2015 or on 07.01.2015, which is not in dispute. Hence, she filed the writ petition on 12.01.2015 seeking an order in the nature of writ of mandamus to direct the respondents to consider her request, dated 08.01.2015, to afford her an opportunity to participate in the oral test for the post of Assistant. The Public Service Commission is entrusted with the important task of selecting proper candidates, by following reservation policy, communal rota etc., in a diligent manner, without violating the Constitutional mandate. In the instant case, though the petitioner has stated that she is Backward Woman Candidate and also a destitute widow, at least the respondent could have considered her for B.C. widow quota, since she has possessed the required qualification for consideration. It is not in dispute that she is a holder of M.A.Degree in Tamil and also M.Phil., as educational qualification for the appointment. Had there been any doubt for the respondent, to consider whether she is a destitute widow of Backward class or only a widow of Backward Class, she could have been given reasonable opportunity, to attend the interview, as the same was given for the other candidates having Regn.No.290105270 MBC/DC Female and Regn.No.320101284 MBC/DC Male, subject to production of certain documents etc., as shown in the Notification annexed in Page No.1 of the Additional Typed-set of papers filed by the petitioner. However, without providing similar opportunity to the petitioner, her right has been denied unreasonably and further, there is no reason as to why she was not considered, even for the quota available B.C.Woman.
18. Another legal aspect pointed out by the learned counsel appearing for the petitioner is that after the filing of the writ petition, the respondent Office, in order to create documents, sent a communication to the petitioner, bearing the date as 07.01.2015. However, the said communication was admittedly sent by post, only on 03.02.2015, after filing of the writ petition on 12.01.2015. It is unfortunate for the responsible officers to sent a communication dated 07.01.2015 on 03.02.2015, without any justification, though the writ petition itself was filed on 12.01.2015 itself. As contended by the learned counsel appearing for the petitioner, even the communication could have been sent with an anti-date to circumvent or justify the unreasonable non-selection of the petitioner for the quota, for which she was eligible. It is seen that the petitioner, a qualified candidate has got through the written examination conducted by Tamil Nadu Public Service Commission, the respondent herein. She has claimed that she is a Backward Class Destitute Widow, for consideration, however, she was denied opportunity unreasonably by the respondent for the interview, without considering her, either under the quota for B.C.Woman or BC DW. In order to justify the improper attitude of the officers of the respondent, they have produced a document, as if the petitioner was informed on 07.01.2015 by a registered letter, however, it is seen that the communication was posted only on 03.02.2015, after the filing of the writ petition.
19. It is not in dispute that the written test was held on 23.02.2014 and the petitioner passed the written examination. The certificates were submitted by the petitioner as requested by the respondent, hence, the respondents should have intimated the petitioner immediately that she could be considered only under the Backward Class Widow quota and not under Destitute Widow quota, as the certificate produced by her would show that she was B.C Widow. The respondent should have permitted the petitioner to attend the interview. The claim of the petitioner is that she is a candidate to be considered as B.C Destitute Widow. Learned counsel for the petitioner submits that the respondent is not diligent in providing opportunity to her under B.C. Destitute Widow quota, subject to production of certificate, for claiming her as destitute widow, but prompt in sending a letter on 03.02.2015 with an early date 07.01.2015, for rejecting her claim, in view of this writ petition, which is against law.
20. It is not in dispute that the petitioner is educationally qualified for the post, for which she had applied for and she is a widow of Backward class community, claiming as B.C. Destitute Widow. Had there been any genuine doubt, whether the petitioner is a B.C Widow or B.C. Destitute Widow, as the word "destitute" was not incorporated in the certificate issued by the Competent Authority, to meet the ends of justice, she could have been given an opportunity to attend the interview, to establish her claim as B.C Destitute widow, as there was one vacancy for B.C. Destitute widow and there was no other candidate claiming for the vacancy, except the petitioner herein. However, without providing opportunity, she was not permitted to attend the interview on the ground that she was not a B.C. Destitute widow. Officers, holding such higher responsibility should have realised the pathetic situation of a qualified candidate, especially a destitute widow, in seeking appointment for her livelihood. It is not disputed by the respondent, that even for the quota for Backward Class woman, she was not considered, though she had established that she was a Backward class woman candidate and also a widow, claiming as Destitute widow. Therefore, this Court is of the view that the denial of her legitimate right by the officers of the respondent is highly improper. It is also relevant that the petitioner has produced supporting document, a certificate issued by Revenue Divisional Officer, Aruppukkottai as B.C Destitute widow. Therefore, it is crystal clear that the petitioner is educationally a qualified candidate, a widow of Backward class, for which she had already produced supporting documents to the respondent and she claimed that she is a B.C. Destitute widow. There was no other candidate for the quota of Backward Class of Destitute Widow. The respondent should have selected her under the quota of Destitute Widow of Backward Class, subject to the production of the certificate, stating her as destitute. However, the legitimate right of a destitute widow has been denied by the respondent, without any justification. Hence, we find it just and reasonable to allow the writ petition, to meet the ends of justice.
21. In the result, writ petition is allowed. Having considered the facts and circumstances and the injustice done to the petitioner, we are of the considered view that there is no need for conducting another oral test for the petitioner, as she is the sole eligible candidate passed in the written examination, to be considered for the Backward Class Destitute widow, having the required other qualification. Therefore, to meet the ends of justice, we direct the respondent to pass appropriate orders, to provide immediate appointment to the petitioner in the cadre of Assistant, within a period of six weeks from the date of receipt of a copy of this order. No order as to costs. Consequently, connected miscellaneous petition is closed.
To:
The Secretary, Tamil Nadu Public Service Commission, Frazier Bridge Road, Chennai-600003.