Madras High Court
R.Poonkundran vs State Represented By on 3 February, 2012
Author: V.Ramasubramanian
Bench: V.Ramasubramanian
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 03/02/2012 Coram : The Honourable Mr.Justice V.RAMASUBRAMANIAN WRIT PETITION Nos.695 and 7403 of 2011 And M.P.No. 2 of 2011 R.Poonkundran ..Petitioner in both WPs Vs 1.State represented by The Secretary, Tamil Nadu Public Service Commission (TNPSC), Commercial Tax Annexure Building, No.1, Greams Road, Chennai-600 006. 2.The Secretary, Personnel Administrative Reforms (S) Department, Fort St. George, Chennai-600 009. ..Respondents in both WPs W.P. No.695 of 2011: Writ Petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, calling for the records in respect of the selection process adopted by the first respondent in declaring the impugned results dated 19.11.2010 with respect to the post in Group-I Service vide Code No.001 and quash the same and consequently direct both the respondents to implement G.O.Ms.No.145 and dated 30.9.2010 (Providing Preferential Appointments in the Services under the State to persons who have obtained the education qualification prescribed for direct recruitment to Tamil Medium of instructions) so far as the petitioner is concerned and declare fresh results by revaluating the answer scripts of the petitioner (vide Regn. No.50094280) by applying G.O.Ms.No.145, dated 30.9.2010 in the interest of justice and equity. (Prayer amended as per Order dated 24.2.2011 in M.P.No.4 of 2011) WP No.7403/2011: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records of the first respondent pertaining to the selection process adopted by him in declaring the impugned results dated 11.1.2011 with respect to Group II Services Code No.004 and quash the same and consequently direct both the respondents to implement the Ordinance No.3 of 2010 (Providing Preferential Appointments in the Services under the State to persons who have obtained the educational qualification prescribed for direct recruitment through Tamil Medium of instructions) and declare fresh results so far as the petitioner is concerned vide Register No.50002208 in the interest of justice and equity. For Petitioner in both WPs : Mr.T.K.Kulasekaran For Respondent-1 in both WPs : Ms.C.N.G. Niraimathi, Standing Counsel for TNPSC. For Respondent-2 in both WPs : Mr.N.Srinivasan, Additional Government Pleader. C O M M O N O R D E R
The petitioner in both the writ petitions is one and the same person. He has come up with the first writ petition, challenging his non-selection to Group-I Services in the State of Tamil Nadu. In the second writ petition, he has challenged his non-selection to Group-II Services in the State of Tamil Nadu.
2. Heard Mr.T.K.Kulasekaran, learned counsel for the petitioner, Ms.C.N.G.Niraimathi, learned Standing Counsel for the first respondent-TNPSC and Mr.N.Srinivasan, learned Additional Government Pleader for the second respondent.
3. The Tamil Nadu Public Service Commission published a notification on 15.11.2009, calling for applications for direct recruitment to posts included in the Combined Subordinate Services Examination-I (Group-II). Within a few days, there was yet another notification published on 20.12.2009 for selection to Group-I Services. The petitioner applied in response to both the notifications. Unfortunately or fortunately he was not selected.
4. After the notifications were published, the Government of Tamil Nadu issued an Ordinance which is titled as Tamil Nadu Appointment on Preferential Basis in the Services under the State to Persons Studied in Tamil Medium Ordinance 2010. This Ordinance No.3 of 2010 received the assent of the Governor and was published in the Tamil Nadu Government Gazette Extraordinary bearing No.273 dated 7.9.2010. The said Ordinance provided under Section 3(1) that notwithstanding anything contained in any other law for the time being in force and subject to Section 5, 20% of all vacancies in the appointment in the services under the State which are to be filled up through direct recruitment shall be set apart on preferential basis to persons who studied in Tamil Medium.
5. In exercise of the powers conferred by Section 8(1) of the aforesaid Ordinance, the Government also issued a set of rules under G.O.Ms.No.145, P&AR Department, dated 30.9.2010. These rules were known as "Tamil Nadu Appointment on Preferential Basis in the Services under the State to Persons studied in Tamil Medium Rules 2010". The rules provided for the manner of selection under Rule 3 with an illustration thereunder containing the distribution of vacancies.
6. Taking advantage of the fact that the entire selection process had not been completed before 30.9.2010, the date on which the rules were issued, the petitioner has come up with the above writ petitions, seeking a direction to the respondents, to evaluate him by applying the reservation provided under the aforesaid Ordinance and Rules. The claim of the petitioner is that he studied B.A. Economics in Tamil Medium and that he is entitled to be considered against the 20% quota reserved for those who studied in Tamil Medium.
7. Before responding to the main contention of the writ petitioner, the following dates may have to be taken note of:-
(i) The date of notification for Group-II Services 15.11.2009.
(ii) The date of notification for Group-I Services - 20.12.2009.
(iii) The date of conduct of Preliminary Examination for Group-I Services 2.5.2010.
(iv) The date of conduct of the Main Examination (only Examination) for Group-II Services 11.4.2010.
(v) The date of publication of the Ordinance in the Government Gazette 7.9.2010.
(vi) The date of issue of the Rules under the Ordinance 30.9.2010.
(vii) The date of conduct of the Main Written Examination for Group-I Services was 22nd and 23rd January 2011 (However, the petitioner did not qualify in the Preliminary Examination to be shortlisted for the Main Written Examination for Group-I).
8. The dates and events listed above would show that the reservation provided by the Ordinance, came into effect only after the notification and after the Preliminary Examination in respect of Group-I and after the Main Examination in respect of Group-II. However, it is the contention of the petitioner that when such a reservation is provided, before the selection process is completed, the same should be made applicable from the date of the notification. In other words, the petitioner wants the benefit of the Ordinance and the Rules to take retrospective effect from November and December 2009, so as to cover the vacancies notified in the notifications dated 15.11.2009 and 20.12.2009.
9. The learned counsel for the petitioner relies upon two decisions, one of the Supreme Court and another of the Division Bench of the Allahabad High Court. The decision of the Supreme Court in UP Public Service Commission vs. Satya Narayan Sheohare {2009 (5) SCC 473}, arose out of the selection of Civil Judges (Junior Division) in the State of Uttar Pradesh. In that case, the notification for recruitment was issued on 4.3.2010. Before the Written Examinations could be conducted in August 2000, the State Government issued a notification on 7.7.2000, including certain Castes in the list of other Backward Classes (OBCs), by amending the First Schedule to UP Public Services (Reservation for Schedule Castes, Schedule Tribes and Other Backward Classes) Act, 1994. Therefore, the candidates who belonged to those Castes sought the benefit of the inclusion of their names under the category of other Backward Classes in the selection. The High Court granted relief in their favour and the Service Commission went on appeal to the Supreme Court.
10. The Supreme Court took into consideration the savings provision contained in Section 15 of the Act and the Explanation thereto. Section 15(1) of the enactment, under which the Castes were included in the list of Other Backward Classes, provided that the provisions of the Act will not apply to cases in which the selection process had been initiated before the commencement of the Act. But the Explanation to Section 15 made it clear that the selection process will be deemed to have been initiated, only on the date on which the written test started, in cases where written test or written test and interview, were prescribed as the modes of selection. In view of this specific provision under Section 15(1) of the Special Enactment and the Explanation thereunder, the Supreme Court held that the candidates whose Castes were included in the list of Other Backward Classes, were eligible to be considered as reserved category candidates.
11. But unfortunately for the petitioner, the above decision will not go to his rescue for the following reasons:-
(i) There is no provision here, which is similar to Section 15 (1) of the UP Public Services (Reservation for Schedule Castes, Schedule Tribes and Other Backward Classes) Act, 1994, under which the petitioner can claim a similar benefit.
(ii) In any case, the Ordinance as well as the Rules, clear the air of suspicion. Section 1(2) of the Ordinance makes it clear that it shall come into force at once. The expression "at once" signifies that the Ordinance came into effect on the date of its publication in the Gazette.
(iii) Section 8(1) of the Ordinance confers powers upon the Government to make Rules. Sub-section (2) of Section 8 is very significant and hence it is extracted as follows:-
"(2) All rules made under this Ordinance shall be published in the Tamil Nadu Government Gazette and unless they are expressed to come into force on a particular day shall come into force on the day on which they are so published."
The Rules issued in terms of Section 8(1) accordingly came into force on the date on which they were published viz., 30.9.2010. Therefore, in the light of the express provisions of the very Statute which created a reservation for persons who studied in Tamil Medium, the benefit had been extended only with prospective effect. Therefore, the recruitment in respect of which notifications had already been issued, cannot be taken to be covered by the Ordinance and the Rules, which have been specifically given only prospective effect.
12. In so far as the other judgment is concerned, it is the judgment of the Division Bench of the Allahabad High Court in P.K.Malik vs. State of U.P. {2005 (4) ESC 2404}. The said judgment relates to the benefits claimed by persons who were performing the duties of the Lecturers, for regular absorption. In other words, the persons, who were already in service, were claiming the benefit of equality with others. Therefore, the said case is not a comparison to the case on hand.
13. In view of the above, I find no reasons to grant relief to the petitioner. Hence both the writ petitions are dismissed. No costs. Consequently connected miscellaneous petition is also dismissed.
SVN To
1.The Secretary, Tamil Nadu Public Service Commission (TNPSC), Commercial Tax Annexure Building, No.1, Greams Road, Chennai-600 006.
2.The Secretary, Personnel Administrative Reforms (S) Department, Fort St. George, Chennai 600 009