Madras High Court
M.Branesh vs The Deputy General Manager on 22 June, 2011
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22/06/2011 CORAM THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN W.P (MD) No.1158 of 2008 M.Branesh ... Petitioner Versus The Deputy General Manager, (Recruitment), Hindustan Aeronautics Limited (HAL), Corporate Office, 15/1, Cubbon Road, Bangalore - 560 001. ... Respondent PRAYER Writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus to direct the respondent to consider the petitioner's application under PWD category and furnish the status of the interview held on 10.12.2007. !For Petitioner ... Mr.R.Subramanian ^For Respondent ... Mr.R.Aravindan :ORDER
The petitioner is an Engineering graduate in Aeronautical Engineering. He passed B.E. Aeronautical Engineering in April 2007 with first class. The petitioner is a physically challenged person.
2. The respondent is a public sector under taking. It is fully owned by the Central Government and the Central Government is the appropriate Government under Section 2 (a) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. (In short herein after referred to as "the Act").
3. The respondent advertised in the English Daily, namely the Hindu on 10.10.2007, calling for applications to fill the post of Management Trainees and Design Trainees. We are not concerned with Design Trainees. In the advertisement it was notified that 400 posts of Management Trainees were to be filled up. The petitioner applied for the post of Management Trainee. The petitioner satisfied the eligibility criteria. His application was accepted and he was called upon to take Online written examination on 12.11.2007. The written test was for 70 marks. Since, he was successful in the written test, he was called to attend interview. They sent a interview letter, dated 05.12.2007, calling him to attend interview on 10.12.2007 at 08.00 a.m. Paragraph No.2 of the interview card is extracted hereunder:-
"2. You are required to produce following documents in original, along with one set of photocopies duly attested by a Gazetted Officer/School Headmaster/College principal, for verification, before commencement of the interview:
a) Marks sheets of all Semesters / Years;
b) Engineering Degree Certificate / Provisional Certificate;
c) Course completion Certificate with the date of completion and
d) Original Certificates in support of your
(i) Date of Birth,
(ii) Caste (SC/ST/OBC)
(iii) Sub Category (Persons with Disability / Ex-serviceman) and
(iv) Experience & NOC (wherever applicable)"
4. One of the documents that was required was the Disability Certificate. He produced the Disability Certificate and the same is enclosed at page No.9 of the typed-set of papers. The respondent does not dispute that the petitioner is a person with disability. According to the petitioner, he was not informed about the result of the interview. He has filed the present writ petition to direct the respondent to consider his application under PWD (Persons with Disability) category and furnish the status of the interview held on 10.12.2007.
5. The respondent has filed counter affidavit refuting the allegations.
6. Heard both sides.
7. The learned counsel for the respondent submits that before deciding the matter on merit, the issue as to maintainability has to be decided first. According to the respondent, this Court has no territorial jurisdiction as the respondent is situated at Bangalore.
8. But, on the other hand, the learned counsel for the petitioner submits that the respondent published the advertisement in the Hindu having wide circulation in Nagercoil, Kanyakumari District, Tamil Nadu. It is stated that online written test was taken by the petitioner in Kanyakumari District. It is further submitted that the respondent sent the interview card to the petitioner's residence at Kanyakumari District. Therefore part of cause of action arose within the jurisdiction of this Court. He relied on the decision of the Division Bench of this Court in Ex.Rect (MP) A.Madurai Veeran No.7779447K Vs. Union of India, rep. by its Secretary to Government, Ministry of Defence, New Delhi and others reported in 2006 (1) CTC 732, in this regard.
9. Admittedly, the petitioner took Online examination at Nagercoil in Kanyakumari District. The interview card was sent by the respondent to residence of petitioner in Kanyakumari District. In these circumstances, I am of the view atleast a part of cause of action arose within the jurisdiction of this Court and the judgment of this Court n Ex.Rect (MP) A.Madurai Veeran No.7779447K Vs. Union of India, rep. by its Secretary to Government, Ministry of Defence, New Delhi and others reported in 2006 (1) CTC 732 squarely applies to the facts of this case.
10. Paragraph Nos.12 to 15 of the said judgment are extracted hereunder:-
"12.We find that almost under similar circumstances, a Division Bench of the Orissa High Court in a decision Janardan Vs. Union, 200 (2) Ori. LR 126, after referring to the decision of the Supreme Court in Oil and Natural Gas Commission Vs. Utpal Kumar Basu, 1994 (4) SCC 711 and the decision State of Rajasthan and others Vs. M/s. Swaika Properties and another, AIR 1985 SC 1289, came to the conclusion that the Court had territorial jurisdiction. In the said case, the writ petitioner, a permanent resident of Orrisa, had been appointed as a Constable in the Central Industrial Security Force and at the relevant time he was posted in the Central Industrial Security Force Unit at Ranchi within the State of Bihar. On the basis of the disciplinary proceedings held at Ranchi, he was removed from service. He had filed an appeal before the appellate authority, which was again outside the territory of Orissa. After removal from service, the petitioner had to come back to his permanent place within Orissa. The order of dismissal of the appeal by the appellate authority was communicated to the petitioner at his permanent residence within Orissa. Thereafter a writ application was filed before the Orissa High Court and the Division Bench of the High Court, over-ruling the preliminary objection raised by the counsel for CISF regarding territorial jurisdiction, held that Orissa High Court had also jurisdiction as the order of the appellate authority was received by him within the State of Orissa. The Division Bench observed that the two decisions of the Supreme Court referred to above did not lay down that as a general proposition service of notice can never be considered as part of the cause of action, but on the peculiar facts of the case held that the Courts lacked jurisdiction.
13.In our view, the observations made by the Orissa High Court are also equally applicable to the present case, where most of the correspondences relating to rejection of disability pension and subsequent rejection of representation had been made within the territorial jurisdiction of the Madras High Court.
14.In the present case, the petitioner is seeking payment of disability pension. It would be indeed impossible for him to go to Bangalore or New Delhi claiming the relief which now he is claiming if a hyper technical view of the matter is taken.
15.For the aforesaid reasons, we allow the appeal and hold that the Madras High Court (Madurai Bench) has territorial jurisdiction to deal with the matter. Since the writ petition was dismissed only on the ground of lack of territorial jurisdiction, the matter is now directed to be placed before the learned Single Judge to consider the writ petition on merit. It is needless to point out that we have not at all examined the merits of the contentions raised in the writ petition."
I therefore have no hesitation to hold that the writ petition is maintainable before this Court.
11. According to the petitioner, in the advertisement, there was no specific reference about 3% reservation as provided under the Act, 1995. Since the respondent is an establishment covered by Section 2 (a) r/w Section 33 of the Act, 1995, 3% reservation should be provided for PWD category by the respondent. It is stated in the advertisement that Further details regarding reservation of posts, Educational Qualifications, Age, Emoluments, Application Fee of Rs.200/- (Wherever applicable), Mode of applying, General conditions etc., (Selection Procedure, Service Bond, Training, Stipend & Absorption) can be had by visiting the HAL website WWW.hal-India.com.
12. If 3% reservation is provided as per Section 33 of the Act, 1995, then 12 persons in PWD category have to be selected among 400 Management Trainees. But the respondent has stated in paragraph No.5 of the counter affidavit and the same is extracted hereunder:-
"It is pertinent to note that there is no need for the respondent company to send the call letter under Persons with Disability (PWD) Category to any of the candidates applied for the above mentioned post."
That is, according to the respondent no separate reservation has to be provided to PWD Category, as is provided reservation to SC/ST and OBC Categories.
13. It is pertinent to note that the following statement at page No.3 of the typed set of the respondent shows the ear-marking of posts for each category, namely, SC/ST/OBC/GEN with respect to every discipline but there is no reservation provided for PWD Category.
Sl. Discipline Total No. Reservation Earmarked No Ratio of Posts SC ST OBC GEN PWD*
1. Aeronautical 3 1 0 1 1 1:4.33
2. Computer Science 20 3 2 5 10 1:4.25
3. Electronics 60 9 5 16 30 1:4.53
4. Electricals 45 7 4 12 22 1:4.75
5. Production 57 9 4 15 29 1:3.19
6. Mechanical 200 30 15 54 101 1:3.12
7. Metallurgy 15 2 1 4 8 1:5 Total 400 61 31 107 201 0 (1:3.7) * Reservation in PWD Category will be allocated depending upon the availability of candidates in various disciplines.
14. In my view, this does not satisfy the requirement of Section 33 of the Act, 1995. The Honourable Division Bench of this Court in Prof.I.Elangovan, Vellore Vs. Government of Tamil Nadu, rep. by its Chief Secretary, Chennai and Others reported in (2008) 3 MLJ 481, held that the reservation should be first provided to PWD categories and then only communal reservation should be provided.
15. Paragraph No.21 of the aforesaid judgment in Prof.I.Elangovan, Vellore Vs. Government of Tamil Nadu, rep. by its Chief Secretary, Chennai and Others reported in (2008) 3 MLJ 481 is extracted hereunder:-
"21.On behalf of the TNPSC, the charts showing the vacany positions, as per Section 33 read with Section 2 (K) of the Act, are filed on record. As per the charts 80 vacancies are liable to be reserved for the post of Typist and 8 vacancies for the post of Steno-Typist for persons with Disability under Notification/Advertisement No.135. As regards, Notification No.142, 99 vacancies are liable to be filled up from among the persons with disabilities. We are informed that the post of Typist and Steno-Typist, the TNPSC has received in all 2151 applications and for the post of Junior Assistants, Bill Collectors, etc. falling under Grade-IV service, 524 applications have been received in disabled category. Accordingly, we direct the TNPSC to fill up the said 187 vacancies exclusively by appointing eligible disabled candidates. The Writ petitions are disposed of accordingly. No costs. Consequently, connected miscellaneous petitions are closed."
16. If the same yardstick is followed, the first 12 seats should be ear- marked for PWD Categories, that could be filled from any of the disciplines namely either in Aeronautics, Computer Science, Electronics, Electricals, Production, Mechanical and Metallurgy and those posts could be adjusted in SC/ST/OBC/GEN Categories. But, no reservation was made for PWD Category, while there was ear-marking for SC/ST/OBC/GEN categories.
17. The petitioner belongs to Aeronautics Discipline. 11 persons including the petitioner were called to attend interview in the Aeronautical Discipline. That is, only 11 persons were in the zone of consideration. The details of marks obtained by those person in written test as well as in interview are provided by the respondent in the typed set.
18. The written test was for 70 marks and interview was for 30 marks. As stated already, since the petitioner was successful in written test, he was called for interview. In interview he obtained 13 marks out of 30 marks. According to the respondent, he was not selected as per paragraph No.2 of Note - 12 found in page No.10 of the typed set of the respondent, which is extracted hereunder:-
"2. Final Merit Lists of selected candidates are drawn up by consolidating the Marks scored in the Written Test and Interview, with 70 marks for Written Test and 30 marks for Interview. Candidates who have not secured minimum 50% of marks (for Gen/OBC) & 40% (for SC/ST) in the Interview have been disqualified."
19. That is, according to the respondent, since the petitioner belongs to OBC category, he should have secured 50% of 30 marks, i.e. 15 marks in the interview and since he secured only 13 marks, he was not selected. The petitioner was treated as OBC Category and not as PWD Category.
20. If paragraph No.3 of Note-12 is applied, the petitioner ought to have been selected. It is stated that the PWD Candidate should be treated on par with SC/ST Candidates by giving relaxation. SC/ST Candidates are required to secure only 40% of interview marks for selection. If the same yardstick is applied, the petitioner should have been selected.
21. Paragraph No.3 of Note-12 found in Page No.10 of the respondent typed set is extracted hereunder:-
"3. Keeping in view the guidelines issued by the Department of Personnel & Training, Government of India (extracts placed at Encl 9A/ that relaxed standards in the qualifying marks as applicable to candidates belonging to SC/ST Communities is to be applied mutatis mutandis to PWD also to make up the deficiency in the reserved quota, relaxation in the interview marks are extended to Disabled candidates at par with SC/ST candidates."
22. Had the respondent applied paragraph No.3 of their Note-12 that is found at Page No.10 of their typed set, the respondent should have selected the petitioner. Hence, I am of the view that the petitioner is entitled to be selected as Management Trainee.
23. The learned counsel for the respondent submits that the petitioner was not selected, since he did not secure 50% of 30 marks in interview. That is the only reason for his non-selection. As stated above, applying paragraph No.3 of Note-12 found at page No.10 of the respondent typed set, the petitioner ought to have been selected.
24. At this juncture, it is also relevant to refer paragraph No.4 of Note- 12 found at page No.10 of the respondent typed set. As per the said note, approval was accorded to ear-mark only 5 post for PWD Candidates. Thus, it is not in compliance with Section 33 of the Act, 1995. As stated above 12 posts should be ear-marked for PWD category. It is stated that out of 5 posts approved for PWD category, 3 PWD candidates alone were found suitable and the petitioner was not found suitable as he did not secure 50% of 30 marks in interview and he was not selected.
25. Paragraph No.4 of Note-12 found in Page No.10 of the typed set is extracted hereunder:-
"4. Approval was accorded vide Note-7 ante, to earmark 5 posts for PWD candidates. On extension of relaxation as proposed above, 3 PWD candidates are found suitable and accordingly the offers will be sent to them, on approval. Further, 7 posts earmarked for PWD could not be filled in the last selection for Design / Management Trainees. It is therefore proposed to carry forward these 9 posts earmarked for PWD for the future selections of Management / Design Trainees."
26. I have already held that it is sufficient for a PWD candidate to secure 40% of 30 marks in interview for getting selected. As the petitioner secured 13 marks in interview which amounts to 40% of 30 marks, the petitioner is entitled to be selected.
27. Hence, the respondent is directed to pass appropriate orders selecting and appointing the petitioner as a Management Trainee in Aeronautics Engineering within a period of eight weeks from the date of receipt of a copy of this order.
With the above direction, the writ petition is disposed of. No costs.
ps To The Deputy General Manager, (Recruitment), Hindustan Aeronautics Limited (HAL), Corporate Office, 15/1, Cubbon Road, Bangalore - 560 001.