Madras High Court
A.Pavunkumar vs The Member Secretary on 15 April, 2021
W.P.No.10467 of 2021 and etc.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 27.08.2021
Pronounced On 07.01.2022
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
W.P.No.10467 of 2021 &
W.P.Nos.14538 & 9834 of 2020
and
W.M.P.Nos.11954, 11955, 18032 & 18033 of 2020
and W.M.P.Nos.11067 & 11068 of 2021
(Through Video Conferencing)
1.A.Pavunkumar
2.P.Chandrasekar
3.P.Manojkumar
4.P.Ananthan ... Petitioners
in all W.Ps.
Vs.
1.The Member Secretary,
Tamil Nadu Uniformed Services
Recruitment Board (TNUSRB),
Old Commissioner of Police Office Campus,
Panthean Road, Egmore,
Chennai – 600 008.
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W.P.No.10467 of 2021 and etc.
2.The Director General of Police,
Tamil Nadu,
Dr.Radhakrishnan Salai,
Mylapore, Chennai – 600 004. ... Respondents
in all W.Ps.
Prayer in W.P.No.10467 of 2021 :- Writ Petition filed under Article 226
of the Constitution of India, for issuance of a Writ of Mandamus, to
forbear the respondents from proceeding with any further based on the
provisional selection list published by the first respondent dated
15.04.2021 for direct recruitment to the post of Sub Inspector of Police
without considering the petitioners under Persons Studied in Tamil
Medium (PSTM) category as per the ratio laid down in the orders passed
in W.P. (MD) No.19112 of 2020 etc., case dated 10.02.2021 by allowing
the petitioners to participate in every stage of selection.
Prayer in W.P.No.14538 of 2020 :- Writ Petition filed under Article 226
of the Constitution of India, for issuance of a Writ of Mandamus, to
direct the respondents to allow the petitioners to participate in the
Physical Measurement Test (PMT) conducted from 30.09.2020 to
12.10.2020 pursuant to the notification made in the paper advertisement
dated 29.09.2020.
Prayer in W.P.No.9834 of 2020 :- Writ Petition filed under Article 226 of
the Constitution of India, for issuance of a Writ of Mandamus, to direct
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the respondents to conduct selection to the post of Sub-Inspector of
Police in accordance with the provisions of 'Tamil Nadu Appointment on
Preferential Basis in the Services under the State of Person Studied in
Tamil Medium Act, 2010' (Tamil Nadu Act 40 of 2010) in 20%
vacancies in each category as per Rule of Reservation in every stage of
selection and consequently permit the petitioners to participate in the
next stage of selection after written examination, based on merit with
reference to the marks secured by the petitioners, in the reserved
category.
For Petitioners : Mr.G.Sankaran in all W.Ps.
For Respondents : Mr.L.S.M.Hasan Fizal
Government Advocate in all W.Ps.
COMMON ORDER
By this common order, all these three Writ Petitions are being
disposed.
2. All these Writ Petitions have been field by the same petitioners
at different stage of selection to the post of Sub Inspector of Police
pursuant to the Notification of the first respondent for direct recruitment
for the year 2019. There were about 969 vacancies as detailed under:-
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Name of Post Name of the No. of Vacancies Total
Service General / Women /
Men Transgender
Sub-Inspector of Tamil Nadu 462 198 660
Police (TK) Police 193 83 276
Sub-Inspector of Subordinate
Police (AR) Service
Sub-Inspector of Tamil Nadu 33 --- 33
Police (TSP) Special Police (Men)
Subordinate
Service
Total 688 281 969
3. The petitioners in these Writ Petitions scored as follows:-
Sl. Name Enroll No. Marks Community
No.
1 A.Pavunkumar 1610403 48 BC
2 P.Chandrasekar 0410647 46 MBC
3 P.Manojkumar 1310604 44 MBC
4 P.Ananthan 2415119 47 MBC
4. It is the grievance of the petitioners that all these petitioners
were entitled to be called for the next stage of selection after the written
examination as per the provisions of the Tamil Nadu Appointment on
Preferential Basis in the Services under State of Persons Studied in Tamil
Medium Act, 2010 (hereinafter referred to as PSTM Act, 2010 for
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brevity). The grievance of the petitioners is that the respondents have not
adhered to Clause 15(vi) of the Notification issued by the first respondent
in the year 2019 called for the application for various posts in the
uniformed service. Clause 15 of the said Notification reads as under:-
15. STAGES OF RECRUITMENT FOR OPEN
CANDIDATES:
A. WRITTEN EXAMINATION:
Written examination will consists of Part.A - General
Knowledge and Part.B - Logical Analysis, Numerical
Analysis, Psychology Test, Communication Skills, and
Information Handling Ability. A written examination
total mark is 70.
i. Part.A. – 40 Marks (objective type). 80
Questions.
ii. Part.B. – 30 marks (objective type). 60
Questions.
iii. Each question carries ½ marks.
iv. Duration 2.30 hrs.
v. The candidates should get a minimum of 25
marks to qualify in the written examination.
vi. However, out of those who qualify in the
written examination, only five times of the
number of notified vacancies in each of the
category shall be permitted for next stage of
selection i.e. PMT, ET, PET and Original
Certificate Verification based on the merit.
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vii.Call letter for written examination: The
Call letters of the eligible candidates will be
uploaded in this Board’s website before
commencement of the written examination.
The candidate can login his/her account with
User ID and Password and download the Call
Letter for attending the Written Examination.
5. The learned counsel for the petitioners relied on the decision of
the Division Bench of the Madurai Bench of this Court in
M.Vigneshwaran and others Vs. The State of Tamil Nadu, rep. by its
Principal Secretary, Home Department and others, in W.P.(MD)
Nos.19112 of 2020 etc., dated 10.02.2021, wherein, in Paragraph Nos.11
to 16, it has been held as under:-
11.As stated, these provisions are not only in
consonance with each other, but with respect to the
roster point fixed. The State of Tamil Nadu has got its
own unique roster point system. This is with respect to
both horizontal and vertical reservation. In every
reserved category coming under vertical reservation.
In every reserved category coming under vertical
reservation, there is a horizontal reservation such as
Widow, Disable and PSTM. These are all the
disadvantaged class of persons forming a distinct
category among the vertically reserved categories. The
roster point has been fixed in the vertical category to
be filled with such horizontal category candidates. As
stated, this aspect has not been brought to the notice of
the Hon'ble Division Bench in the earlier cases. Even
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otherwise, the law laid down by the Division Bench,
though relied upon by the respondents, is not even
being followed.
12. In fact, the respondents are actually
following the rule of reservation, but at the final stage.
In other words, there is no question of two identical
persons being considered and the one with PSTM
being preferred among the vertically reserved
candidates. That has never been done even in this case.
Now what the respondents are doing is that, they take
the finally selected candidates in each category and
then trying to fix 20% for PSTM. Therefore, even the
respondents have understood the object of the Act, but
the mistake lies in its implementation. If 20% of the
vacancies will have to be filled up, as per the roster
point and in accordance with law, the starting point
would be at the initial selection, namely, the written
examination. When once the Act itself says that these
persons cannot be treated on par and categorized
along with the other candidates, who can be
considered as per the vertical reservation, this
approach of the respondents is obviously against the
very Act itself.
13.The aforesaid observation, we give, as in
future, no such anomalies should occur and as rightly
being followed by the other instrumentalities of the
State, namely, Tamil Nadu Public Service Commission
and Teachers Recruitment Board, and in view of the
fair submissions made by the learned Advocate
General and the learned Additional Advocate General.
14. The incidental question is with respect to the
relief to be given. We are in respect and agreement
with the learned Senior Counsel appearing for the
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petitioners that there is no question of estoppel, as
there is a fundamental error in following the law and
therefore, a mere notification cannot be put against the
Act. However, we are not dealing with a public interest
litigation. Now, much water has flown under the
bridge. We are at the final stage of viva-voce, which is
actually going on. Therefore, the learned Additional
Advocate General fairly submitted that the petitioners'
case can be considered, provided they come within the
cut off marks, if they are treated as a separate category
at every stage by following 20% reservation of PSTM
category. Therefore, they may not be treated on par
with the other candidates, who would otherwise come
under the reserved category or open category, as the
case may be.
15.In view of the above, the respondents are
directed to undertake such exercise, insofar as the
petitioners before us alone are concerned and if they
are otherwise eligible, by following the roster point for
PSTM category within the other general category or
reserved category, as the case may be, they should be
considered for the next stage of the recruitment
process. After undertaking the said exercise, if the
petitioners are entitled to, they should be given the
appointments accordingly.
16. The writ petitions are allowed in the above
terms. We place on record our appreciation for the fair
submission made by the learned counsel before us.
There shall be no order as to costs. Consequently,
connected miscellaneous petitions are closed.
6. The learned counsel for the petitioners further relied on the
decision of the Division Bench of the Madurai Bench of this Court in
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Pravin Kumar Vs. The State of Tamil Nadu, rep. by its Principal
Secretary, Home Department and others, in W.A. (MD) No.457 of
2021, dated 27.07.2021, wherein, the earlier decision of the Division
Bench of the Madurai Bench of Madras High Court in M.Vigneshwaran
case cited supra was specifically referred and considered as to whether
the appellants therein could be treated on par with the case of the
candidates. The decision of the Division Bench of the Madurai Bench of
the Court in M.Vigneshwaran case cited supra was followed by another
Division Bench of the Madurai Bench of the Court in Pravin Kumar
case cited supra.
7. The learned Government Advocate for the respondents submits
that the petitioners approached this Court belatedly and were fence sitters
and had allowed recruitment to be proceeded and therefore as rightly
pointed out by the Division Bench of the Madurai Bench of this Court in
M.Vigneshwaran case cited supra, no relief can be granted to the
petitioners, even if it is considered the provisions of the Act 40 of 2010
(PSTM Act) and notification was not complied properly. It is therefore
submitted that having allowed the issue to get lapsed due to efflux of
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time in view of the completion of the recruitment process, the relief of the
petitioners cannot be granted.
8. Heard the learned counsel for the petitioner and the learned
Government Advocate for the respondents. I have perused the decision of
the Division Bench of the Madurai Bench of this Court in
M.Vigneshwaran case cited supra and in Pravin Kumar case cited
supra.
9. The first respondent, by a Notification of 2019, called for
applications to fill up the 969 vacancies of Sub-Inspector of Police (TK),
Sub-Inspector of Police (AR) and Sub-Inspector of Police (TSP) under
the Tamil Nadu Police Subordinate Service and Tamil Nadu Special
Police Subordinate Service.
10. The Notification itself stipulates that about 30% will be allotted
for Women and Transgender candidates. Women and Transgender
candidates were also be entitled to compete in the remaining 70% of the
vacancies along with Men candidates in the TK and AR vacancies.
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11. The Notification also states that if eligible Women and
Transgender candidates were not available for selection, their vacancy
will be filled up by the Men candidates of the same category during final
provisional selection.
12. Thus, 198 and 83 representing 30% of vacancies were reserved
for Women and Transgender candidates for Tamil Nadu Police
Subordinate Service and Tamil Nadu Special Police Subordinate Service
and balance could be filled up by Men only if adequate number of
Women and Transgender were not available. Similarly, Women and
Transgender were eligible to participate in the 70% of the vacancies for
Men in Tamil Nadu Police Subordinate Service and Tamil Nadu Special
Police Subordinate Service. The Notifications also presents 20% for
departmental quota and 10% for sports quota.
13. The notification also recognized that the communal reservation
will be followed as per existing rules and Government orders as detailed
below:-
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Open Competition 31%
Backward Class 26.5%
Backward Class (Muslim) 3.5%
Most Backward Class / Denotified 20%
Communities
Scheduled Caste 15%
Scheduled Caste (Arunthathiyar) 3%
Scheduled Tribe 1
14. As per Clause 11 of the Recruitment Notification, it was also
made clear that 20% of “all vacancies” shall be set apart on preferential
basis for the “open candidates” who studied the Bachelor's Degree
(qualifying degree) in Tamil Medium “during final provisional
selection”.
15. Clause 15(vi) of the Recruitment Notification stipulates the
stages of recruitment for open candidates. It reads as under:-
15 (vi). However, out of those who qualify in the
written examination, only five times of the number of
notified vacancies in each of the category shall be
permitted for next stage of selection i.e, PMT, ET, PET
and Original Certificate Verification based on the
merit.
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16. The minimum mark to be obtained is 25 marks in Written
Examination. In other words, to be considered to the next state of
selection, i.e. Physical Measurement Test (PMT), Endurance Test (ET),
Physical Efficiency Test (PET) and Original Certificate Verification
based on the merit, a candidate should have obtained a minimum mark of
25 out of 70, i.e. 35.71%.
17. In W.P.Nos.12833, 12835 & 4852 of 2021, an identical issue
arose for consideration. By an order dated 07.01.2022 (pronounced
today), the said Writ Petitions were disposed, wherein, the views
expressed by the Division Bench of the Madurai Bench of this Court in
M.Vigneshwaran case cited supra which were followed in Pravin
Kumar case cited supra were to be differed in the light of the decision of
the Hon’ble Supreme Court in Saurav Yadv and Others Vs. State of
Uttar Pradesh and Others, (2021) 4 SCC 542. The relevant portion of
the said order reads as under:-
37. Before referring the respective decision of
the Division Bench of the Madurai Bench of Madras
High Court, it will be useful to refer to the observation
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in W.A.(MD)No.457 of 2021 in its order dated
27.7.2021, which reads as under:-
“6. On 23.12.2020, an interim order was passed
in the said writ petitions* to the effect that PSTM
reservation should be followed from the inception
of the process of the recruitment and not in the
final stage and noting the legal position, the
Recruitment Board gave an undertaking that they
would follow the same in the subsequent
selections and the Court granted relief to those
three writ petitioners to be permitted to
participate in the viva voce. It is submitted that
the appellant herein is also a similarly placed
candidate as that of those three writ petitioners
and the appellant has secured 62 marks in the
MBC Category and the Recruitment Board has
fixed the cut off mark for MBC General as 64
marks and if the appellant is considered as a
PSTM candidate, he would definitely be eligible
to participate in the viva voce.”
(*W.P.(MD).Nos.19112, 191121, 19123 and
18668 of 2020 dated 10.02.2021)
38. The interim order dated 23.12.2020 in
W.P.(MD).Nos.19112, 19121, 19123 and 18668 of
2020 states that PSTM reservation should be followed
from the inception of the process of the recruitment and
not at the final stage and noting the legal position, the
Recruitment Board gave an undertaking that they
would follow the same in the subsequent selections and
the Court granted relief to those three writ petitioners to
be permitted to participate in the viva voice.
39. The final order in W.P.(MD).Nos.19112,
191121, 19123 and 18668 of 2020 dated 10.02.2021
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does not discuss how the preferential appointment in
the recruitment has to be made.
40. It is noticed that in W.P.(MD)Nos.19112,
19121, 19123 and 18668 of 2020 two concessions were
given by the then learned Additional Advocate General
in para Nos. 6 & 7 before the Madurai Bench of this
Court. Relevant portion from the common order dated
10.02.2021 are reproduced below:-
“6. Though the learned Advocate General and the
learned Additional Advocate General sought to
sustain the notification issued, followed by the
procedure followed, after pointing out the
anomaly involved and the very same judgments
relied upon are also not followed and in fact, they
can never be followed, as we are not dealing with
preference among the equals, but such of those
persons who are in disadvantageous position to
others, it is fairly submitted by them that
henceforth, the procedure as being adopted by
Tamil Nadu Public Service Commission and the
Teachers Recruitment Board would be followed.
7. The learned Advocate General also submitted
that there is an amendment and therefore, the
situation may be different in the future
recruitments. On the suggestion made by this
Court to consider the case of the petitioners,
provided they come within the cut-off marks, had
the procedure being followed by treating
W.P.(MD)Nos.19112 of 2020, etc., batch them as
a separate category as done by the Tamil Nadu
Public Service Commission and Teachers
Recruitment Board, it is agreed upon.”
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41. The Court ultimately in para 12 held as
under:-
12. In fact, the respondents are actually following
the rule of reservation, but at the final stage. In
other words, there is no question of two identical
persons being considered and the one with PSTM
being preferred among the vertically reserved
candidates. That has never been done even in this
case. Now what the respondents are doing is that,
they take the finally selected candidates in each
category and then trying to fix 20% for PSTM.
Therefore, even the respondents have understood
the object of the Act, but the mistake lies in its
implementation. If 20% of the vacancies will have
to be filled up, as per the roster point and in
accordance with law, the starting point would be
at the initial selection, namely, the written
examination. When once the Act itself says that
these persons cannot be treated on par and
categorized along with the other candidates, who
can be considered as per the vertical reservation,
this approach of the respondents is obviously
against the very Act itself.
13. The aforesaid observation, we give, as in
future, no such anomalies should occur and as
rightly being followed by the other
instrumentalities of the State, namely, Tamil Nadu
Public Service Commission and Teachers
Recruitment Board, and in view of the fair
submissions made by the learned Advocate
General and the learned Additional Advocate
General. 14. The incidental question is with
respect to the relief to be given. We are in respect
and agreement with the learned Senior Counsel
appearing for the petitioners that there is no
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question of estoppel, as there is a fundamental
error in following the law and therefore, a mere
notification cannot be put against the Act.
However, we are not dealing with a public
interest litigation. Now, much water has flown
under the bridge. We are at the final stage of viva-
voce, which is actually going on. Therefore, the
relief cannot be extended to all others. The
learned Advocate General and the learned
Additional Advocate General fairly submitted that
the petitioners' case can be considered, provided
they come within the cutoff marks, if they are
treated as a separate category at every stage by
following 20% reservation of PSTM category.
Therefore, they may not be treated on par with the
other candidates, who would otherwise come
under the reserved category or open category, as
the case may be.
15. In view of the above, the respondents are
directed to undertake such exercise, insofar as the
petitioners before us alone are concerned and if
they are otherwise eligible, by following the roster
point for PSTM category within the other general
category or reserved category, as the case maybe,
they should be considered for the next stage of the
recruitment process. After undertaking the said
exercise, if the petitioners are entitled to, they
should be given the appointments accordingly.
16. The writ petitions are allowed in the above
terms. We place on record our appreciation for
the fair submission made by the learned Counsel
before us. There shall be no order as to costs.
Consequently, connected miscellaneous petitions
are closed.”
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42. The Division Bench of the Madurai High
Court in W.P.(MD).Nos.19112, 191121, 19123 and
18668 of 2020 dated 10.02.2021 in para 12 merely
concluded that the respondents are actually following
the Rules of Reservation but at the final stage and that
there is no question of two identical persons being
considered and that one with PSTM category being
preferred among the vertically reserved candidates.
43. The Hon’ble Division Bench in its order
dated 10.02.2021 W.P.(MD).Nos.19912, 199121,
19123 and 18668 of 2020 has found fault with the
relegation of application of preferential treatment to the
final stage of selection. It has concluded that if 20 % of
the vacancy will have to be filled up, as per the roster
point and in accordance with law, the starting point
would be at the initial selection, namely the written
examination stage as in para 12 of the order of the
Division Bench of the Madurai Bench of Madras High
Court, in its order dated 10.02.2021 as extracted above.
44. W.P.(MD) No.3307 of 2021 was filed by one
Pravin Kumar to quash the recruitment in Recruitment
Notification No. 02/2019.
45. There, the learned Single Judge had earlier
dismissed W.P.No.(MD)No.3307 of 2021 filed by the
said Pravin Kumar vide order dated 10.02.2021. While
dismissing W.P.No.(MD)No.3307 of 2021 vide Order
dated 10.2.2021, the learned Single Judge followed the
views of the Madurai Bench of the Madras High Court
in W.P.(MD).Nos.19112 of 2020 and etc., batch with
the following observations:-
2. The case of the petitioner is that he had
undertaken his medium of instruction in Tamil
and the recruitment notification provides for 20%
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reservation for the persons, who had studied in
Tamil Medium (PSTM). Since the respondent
Board had applied 20% reservation under PSTM
category at the final stage and not at every stage
of selection, which is not permissible and
therefore, if 20% reservation for PSTM is applied
at every stage, he would come within the cut off
mark for being considered for selection. In
support of the same, the learned counsel relied
upon an interim order of the Hon'ble Division
Bench of this Court, dated 23.12.2020, passed in
W.P(MD) No.19112 of 2020 etc.,
3. The learned Additional Advocate General for
the respondents would however bring it to the
notice of this Court that pursuant to the interim
order of the Hon'ble Division Bench dated
23.12.2020, final orders came to be passed by the
Hon'ble Division Bench in the same batch of cases
on 10.02.2021, whereby the Hon'ble Division
Bench was of the view that 20% reservation under
PSTM category should be applied at every stage
of selection and not at the final stage. However,
by taking note of the fact that the selection
process was over, the benefit of 20% reservation
to PSTM candidates was extended to the
petitioners before the Hon'ble Division Bench
alone and the relief to the others was denied. The
relevant portion of the order reads thus:-
14. The incidental question is with respect to
the relief to be given. We are in respect and
agreement with the learned Senior Counsel
appearing for the petitioners that there is no
question of estoppel, as there is a fundamental
error in following the law and therefore, a
mere notification cannot be put against the Act.
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However, we are not dealing with a public
interest litigation. Now, much water has flown
under the bridge. We are at the final stage of
viva-voce, which is actually going on.
Therefore, the relief cannot be extended to all
others. The learned Advocate General and the
learned Additional Advocate General fairly
submitted that the petitioners' case can be
considered, provided they come within the
cutoff marks, if they are treated as a separate
category at every stage by following 20%
reservation of PSTM category. Therefore, they
may not be treated on par with the other
candidates, who would otherwise come under
the reserved category or open category, as the
case may be
15. In view of the above, the respondents are
directed to undertake such exercise, insofar as
the petitioners before us alone are concerned
and if they are otherwise eligible, by following
the roster point for PSTM category within the
other general category or reserved category, as
the case maybe, they should be considered for
the next stage of the recruitment process. After
undertaking the said exercise, if the petitioners
are entitled to, they should be given the
appointments accordingly.
16. The writ petitions are allowed in the above
terms. We place on record our appreciation for
the fair submission made by the learned
Counsel before us. There shall be no order as
to costs. Consequently, connected
miscellaneous petitions are closed.
4. The aforesaid order is self explanatory and
therefore, the petitioner may not be in a position
to claim the benefits under the order of the
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Hon'ble Division Bench of this Court, since the
order restricts the relief only to the petitioners
before the Hon'ble Division Bench. In view of the
decision of the Hon'ble Division Bench, this court
is unable to consider the ground raised by the
petitioner in the present writ petition, seeking for
20% reservation under PSTM category.”
46. Aggrieved by the same, the petitioner Pravin
Kumar filed W.A.(MD) No.457 of 2021. While
allowing the appeal in W.A.(MD) No.457 of 2021 vide
vide order dated 27.07.2021, the Division Bench
followed the views of the Division Bench in
W.P.(MD).Nos.19912 of 2020 and etc., batch dated
10.02.2021, and noted that since W.P.No.(MD)No.3307
of 2021 was dismissed at the admission stage and
immediately and thereafter the writ petitioner-appellant
(Pravin Kumar) had filed W.A.(MD) No.457 of 2021
and secured an interim order dated 27.07.2021, thereby
reserved a seat and therefore relief must be given to the
said writ petitioner-appellant. In paragraph Nos.14
and 15 of the said order it was observed as under:-
“14. Considering the facts and circumstances of
the case, more particularly that one seat was
reserved for the appellant and the appellant was
permitted to attend the viva voce subject to the
outcome of the writ appeal and he has
successfully cleared the viva voce and his name
finds place in the provisional select list published
on 15.03.2021, we are of the view that the benefit
of the decision of the Honourable Division Bench
in W.P.(MD) No. 19112 of 2020 etc. batch, dated
10.02.2021 should enure in favour of the
appellant as well. We say so, because of the facts
and circumstances of the case and the appellant
had been vigilant in approaching the Court at the
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W.P.No.10467 of 2021 and etc.
earliest point of time and after the dismissal of the
writ petition, he had immediately filed the writ
appeal, in which an interim direction was granted
to reserve one seat. Therefore, the appellant
having participated in the selection process,
though subject to the outcome of the writ appeal,
we are of the view that if the benefit of the order,
dated 10.02.2021 in W.P.(MD) Nos.19112 of 2020
etc. batch is not extended to the appellant, it will
be inequitable. Admittedly, the selection process
is yet to be completed and on account of the
appellant being permitted to undergo the medical
test, it will in no manner hamper the selection
process, which has been completed upto the stage
of viva voce and provisional select list has been
issued. Therefore, we are of the view that the case
of the appellant is quite distinct and different from
the other cases, where much after the completion
of the selection process, the candidate would
approach the Court.
15. For the above reasons, the writ appeal is
allowed and the order, dated 19.02.2021, passed
in W.P.(MD) No.3307 of 2021 is set aside and
consequently, the writ petition is allowed. We
direct the respondents to permit the appellant to
undergo the medical test and if he is found fit,
appoint him in the post of Sub Inspector of Police
by treating him under the PSTM Category. No
costs. Consequently, connected miscellaneous
petitions are closed.”
47. However ilar view was taken in
W.A.(MD)No.720 of 2021 vide order dated
27.07.2021, the same Division Bench, was dismissed
the writ appeal filed by the writ petitioner, Manimaran
with the following observations:-
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“8. We need to examine as to whether the
learned Writ Court was right in doing so.
Admittedly, the writ petition was filed only on
15.03.2021 and listed for admission on
17.03.2021. As on 15.03.2021, the viva voce had
been completed. Therefore, the selection process
cannot be interdicted at that stage of the matter as
the provisional select list had already been
published and the only thing that remains to be
done is to subject the provisionally selected
candidates for medical test, which would be
followed by issuance of appointment orders to the
provisionally selected candidates, who are found
to be medically fit. Therefore, the recruitment
process having attained finality, the appellant
cannot be directed to be permitted to participate
in the viva voce i.e., the next stage of the selection
process, when viva voce has already been
completed and provisional select list has also
been published.
9. Further, we note the submissions of
Mr.VeeraKathiravan, learned Senior Counsel for
the respondents that 159 seats were earmarked
for PSTM Category, of which 112 candidates
were selected under the said category and the
remaining 47 seats have been filled up by
following Section 6 of the Tamil Nadu Conditions
of Service Act and other Government Orders in
vogue and final select list has been published on
15.04.2021. Therefore, the contention of the
appellant that seats reserved for PSTM Category
still continues to remain vacant is factually
incorrect.”
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48. Earlier, the learned single Judge of the
Madurai Bench of Madras High Court by an order
dated 10.02.2021 in W.P.(MD).No.6014 of 2021
dismissed the said writ petition filed by the said
V.Manimaran. The said writ petition was filed for
issuance of a Writ of Mandamus to treat him under the
PSTM Category for appointment to the post of Sub-
Inspector of Police and to permit him to participate in
the next level of selection process by considering his
representation, dated 11.03.2021.
49. The Division Bench of the Madurai Bench of
this Court, while passing final order dated 27.07.2021
in W.A.(MD) No.720 of 2021 noted that the appellant-
petitioner (V.Manimaran) had filed the writ petition
only on 15.03.2021 which was listed for admission on
17.03.2021 and that the viva voice had been completed
and therefore, the selection process cannot be
interdicted at the stage of the matter as provisional
selection had already been published and that only
under that remains to be done is to subject the
provisionally selected candidates for medical test,
which would be followed by issuance of appointment
orders to the provisionally selected candidates, who are
found to be medically fit.
50. The Hon’ble Division Bench therefore
observed that the recruitment process having attained
finality, the appellant there could not be permitted to
participate in the viva voice i.e., in the next stage of the
selection process, when viva voice has already been
completed and provisional select list has also been
published and therefore the Court declined to interfere
with the order of the Learned Single Judge in
W.P.MD.No.6014 of 2021.
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51. Since the passing of the orders by the
Division Bench in the above noted cases and the cases
followed by the Madurai Bench of the Madras High
Court, it is noticed that the Hon’’ble Supreme Court in
Saurav Yadav and Others vs. State of Uttar Pradesh
and Others (2021) 4 SCC 542, has clarified the
position of law. Therefore, it will useful to refer to
PSTM Act, 2010 and the Rules made thereunder.
52. The Hon’ble Supreme Court has over ruled
the decision of the Full Bench of the Allahabad High
Court in Ajay Kumar vs. State of U.P. and Others,
2019 SCC Online All 2674 and accepted the view of
the Rajasthan, Bombay, Uttarakhand and Gujarat High
Courts as rational and disagreed with the views of the
Full Bench of the Hon’ble Allahabad High Court in
Ajay Kumar Vs. State of U.P. And Ors. 2019 SCC
Online All 2674.
53. The Hon'ble Supreme Court in Saurav
Yadav and Others Vs. State of Uttar Pradesh and
Others, (2021) 4 SCC 542 affirmed the views of the
Gujarat High Court in Tamannaben Ashokbhai Desai
vs. Shital Amrutlal Nishar, 2020 SCC Online Guj
2592.
54. The Gujarat High Court in Tamannaben
Ashokbhai Desai Vs. Shital Amrutlal Nishar, 2020
SCC Online Guj 2592 explained the position as under:-
59. There are 115 posts of Police Inspector
(unarmed), out of which 55 posts are reserved for
the SC, ST and SEBC and remaining 60 posts for
Open/General category. Out of the said posts,
33% are reserved for women under each
category, meaning thereby, out of 60 posts in the
open category, 20 posts are reserved for women.
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Thus, the first step would be that of preparing the
entire list on the basis of merit and out of the
same, selecting first 60 candidates, irrespective of
their caste and sex, in open category. The second
step would be then of evaluating as to whether 20
women, irrespective of their caste, are there
within those 60 candidates, so as to meet with the
requirement of horizontal reservation. If 20
women are already there, then there is no need to
select any more woman in that category, but if
not, then in the third step, the remaining number
of women have to be included on the basis of the
merit from the aforesaid list, irrespective of their
caste, while deleting the corresponding number of
male candidates from the bottom of the list of first
60 candidates. Thereafter, identical exercise is
required to be undertaken for implementing
vertical reservation, followed by horizontal
reservation, with respect to the posts belonging to
the SEBC, SC and ST categories.
***
62. It is pertinent to note that Rule 2(d)
seeks to carve out a fourth category of posts, not
being posts reserved in favour of the Scheduled
Castes, Scheduled Tribes and Socially and
Educationally Backward Classes. In other words,
this fourth category is nothing but an open
category of posts, excluding the posts reserved in
favour of the above-referred classes i.e. the posts
reserved for women in open category would be
over and above the posts reserved for women in
SC, ST and SEBC quota, as referred to in Rule
2(a), 2(b) and 2(c) of the said Rules. Thus, all the
meritorious candidates, whether belonging to the
reserved category or unreserved category, will be
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covered by the open category, irrespective of their
caste, community or tribe where merit alone will
be taken into account, while implementing vertical
reservation as well as horizontal reservation
within the same. It may be noted that by virtue of
the Gujarat Civil Services (Reservation of Posts
for Women) (Amendment) Rules, 2014, the
requirement of reservation in favour of women
came to be enhanced from 30% to 33%.
63. In view of the aforesaid discussion, we
have no hesitation in arriving to the conclusion
that the Government Resolution dated 1-8-2018 of
the GAD deserves to be quashed and set aside,
and is hereby quashed and set aside.”
69. For the future guidance of the State
Government, we would like to explain the proper
and correct method of implementing horizontal
reservation for women in a more lucid manner.
“PROPER AND CORRECT METHOD OF
IMPLEMETING HORIZONTAL
RESERVATION FOR WOMEN.
No. of posts available for recruitment. ….. 100
Social Reservation quota (50%)
Open … 51
Competition
(OC)
Scheduled Caste … 12
(SC)
Scheduled Tribe … 17
(ST)
Socially and … 20
Educationally
Backward
Classes (SEBC)
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Horizontal Reservation for Women (33% in
each of the above categories)
OC … 17
SC … 04
ST … 06
SEBC … 07
Step 1 : Draw up a list of at least 100
candidates (usually a list of more than 100
candidates is prepared so that there is no
shortfall of appointees when some candidates
don't join after offer) qualified to be selected in
the order of merit. This list will contain the
candidates belonging to all the aforesaid
categories.
Step 2: From the aforesaid Step 1 List, draw up a
list of the first 51 candidates to fill up the OC
quota (51) on the basis of merit. This list of 51
candidates may include the candidates belonging
to SC, ST and SEBC.
Step 3: Do a check for horizontal reservation in
OC quota. In the Step 2 List of OC category, if
there are 17 women (category does not matter),
women's quota of 33% is fulfilled. Nothing more
is to be done. If there is a shortfall of women (say,
only 10 women are available in the Step 2 List of
OC category), 7 more women have to be added.
The way to do this is to, first, delete the last 7
male candidates of the Step 2 List. Thereafter, go
down the Step 1 List after item no. 51, and pick
the first 7 women (category does not matter). As
soon as 7 such women from Step 1 List are found,
they are to be brought up and added to the Step 2
List to make up for the shortfall of 7 women.
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Now, the 33% quota for OC women is fulfilled.
List of OC category is to be locked. Step 2 List
list becomes final.
Step 4: Move over to SCs. From the Step 1 List,
after item no. 51, draw up a list of 12 SC
candidates (male or female). These 12 would also
include all male SC candidates who got deleted
from the Step 2 List to make up for the shortfall
of women.
Step 5: Do a check for horizontal reservation in
the Step 4 List of SCs. If there are 4 SC women,
the quota of 33% is complete. Nothing more is to
be done. If there is a shortfall of SC women (say,
only 2 women are available), 2 more women have
to be added. The way to do this is to, first, delete
the last 2 male SC candidates of the Step 4 List
and then to go down the Step 1 List after item no.
51, and pick the first 2 SC women. As soon as 2
such SC women in Step 1 List are found, they are
to be brought up and added to the Step 4 List of
SCs to make up for the shortfall of SC women.
Now, the 33% quota for SC women is fulfilled.
List of SCs is to be locked. Step 4 List becomes
final. If 2 SC women cannot be found till the last
number in the Step 1 List, these 2 vacancies are to
be filled up by SC men. If in case, SC men are also
wanting, the social reservation quota of SC is to
be carried forward to the next recruitment unless
there is a rule which permits conversion of SC
quota to OC.
Step 6 : Repeat steps 4 and 5 for preparing list of
STs.
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Step 7 Repeat steps 4 and 5 for preparing list of
SEBCs.”
55. In Para 43, the Hon'ble Supreme Court in
Saurav Yadav case referred to supra observed as
under:-
43. “Finally, we must say that the steps
indicated by the High Court of Gujarat in para
69 of its judgement in TamannabenAshokbhai
Desai contemplate the correct and appropriate
procedure for considering and giving effect to
both vertical and horizontal reservations. The
illustration given by us deals with only one
possible dimension. There could be multiple
such possibilities. Even going by the present
illustration, the first female candidate allocated
in the vertical column for Scheduled Tribes may
have secured higher position than the candidate
at Serial No.64. In that event said candidate
must be shifted from the category of Scheduled
Tribes to Open/General Category causing a
resultant vacancy in the vertical column of
Scheduled Tribes. Such vacancy must then
enure to the benefit of the candidate in the
waiting list for Scheduled Tribes-Female. The
steps indicated by the Gujarat High Court will
take care of every such possibility. It is true that
the exercise of laying down a procedure must
necessarily be left to the authorities concerned
but we may observe that one set out in said
judgment will certainly satisfy all claims and will
not lead to any incongruity as highlighted by us
in the preceding paragraphs.”
56. Hon’ble Mr. Justice S. Ravindra Bhat in his
separate opinion while supplementing and concurring
with the views of the majority observed as under:-
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59.The features of vertical reservations are:
59.1.They cannot be filled by the open
category, or categories of candidates other than
those specified and have to be filled by candidates
of the social category concerned only
(SC/ST/OBC).
59.2.Mobility (“migration”) from the
reserved (specified category) to the unreserved
(open category) slot is possible, based on
meritorious performance.
59.3. In case of migration from reserved to
open category, the vacancy in the reserved
category should be filled by another person from
the same specified category, lower in rank.
59.4. If the vacancies cannot be filled by the
specified categories due to shortfall of candidates,
the vacancies are to be “carried forward” or dealt
with appropriately by rules.
60. Horizontal reservations on the other
hand, by their nature, are not inviolate pools or
carved in stone. They are premised on their
overlaps and are “interlocking” reservations [ The
expression used by B.P. Jeevan Reddy, J., in Indra
Sawhney v. Union of India, 1992 Supp (3) SCC
217 : 1992 SCC (L&S) Supp 1.] . As a sequel,
they are to be calculated concurrently and along
with the inviolate “vertical” (or “social”)
reservation quotas, by application of the various
steps laid out with clarity in para 21.3 [Ed. : See
also paras 21.4, 21.6, para 23.11 r/w para 43 and
paras 30 to 43.] of Lalit, J.'s judgment. They
cannot be carried forward. The first rule that
applies to filling horizontal reservation quotas is
one of adjustment i.e. examining whether on merit
any of the horizontal categories are adjusted in the
merit list in the open category, and then, in the
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quota for such horizontal category within the
particular specified/social reservation.
57. Therefore, the correct method for giving
preferential treatment to Persons Studied in Tamil
Medium (PSTM) under Section 3 of the PSTM Act,
2010 was to be by following the method described in
the illustration in Para 43 of the decision of the Hon’ble
Supreme Court in SAURAV YADAV & ORS. Vs.
STATE OF UTTAR PRADESH & ORS. (2021) 4
SCC 542.
58. Illustration of the Gujarat High Court in
Paragraph Nos.58, 59, 62 & 63 of Tamannaben
Ashokbhar Desai case referred to supra as affirmed in
SAURAV YADAV & ORS. Vs. STATE OF UTTAR
PRADESH & ORS. (2021) 4 SCC 542 can be
understood while implementing 33% horizontal
reservation for women from total of 115 posts for
Inspector (unarmed) in the recruitment notification as
detailed therein.
59. There, 60 posts were for the Open/General
category. The balance 55 posts were reserved for SC,
ST and other Socially and Economically Backward
Community (SEBC). The method followed was as
under :-
i) The first step would be that of preparing the entire
list on the basis of merit and out of the same,
selecting first 60 candidates, irrespective of their
caste and sex, in open category.
ii) The second step would be then of evaluating as
to whether 20 women, irrespective of their caste,
are there within those 60 candidates, so as to
meet with the requirement of horizontal
reservation.
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iii) If not, then in the third step, the remaining
number of women have to be included on the
basis of the merit from the aforesaid list,
irrespective of their caste, while deleting the
corresponding number of male candidates from
the bottom of the list of first 60 candidates.
iv) If 20 women are already there, then there is no
need to select any more woman in that category.
v) Thereafter, identical exercise is required to be
undertaken for implementing vertical
reservation, followed by horizontal reservation,
with respect to the posts belonging to the SEBC,
SC and ST categories.
60. Before applying the above decision of the
Hon'ble Supreme Couryt, therefore it will be useful to
refer to PSTM Act, 2010.
61. For the sake of completion and final disposal
of these cases, it will be useful to refer to the preamble
of the PSTM Act, 2010. It reads as under:-
WHEREAS under Article 345 of the
Constitution, the Legislature of the State has been
given power to adopt any one or more of the
languages in use in the State for official purposes;
AND WHEREAS the State of Tamil Nadu enacted
the Tamil Nadu Official Language Act, 1956
( Tamil Nadu Act XXXIX of 1956) and adopted
Tamil as the Official language of the State under
Article 345 of the Constitution;
AND WHEREAS the Official Languages Act,
1963 (Central Act 19 of 1963) provides for
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continuation of English language for all the
official purposes of the Union and for the
transaction of business in Parliament;
AND WHEREAS the first proviso to section 3
(1)(b) of Central Act 19 of 1963 provides that
English shall be used for purposes of
communication between the Union and the States;
AND WHEREAS Article 348 in Chapter III of
Part XVII of the Constitution provides that
notwithstanding anything contained in the
provisions of that Part, until the Parliament by law
otherwise provides, all proceedings in the
Supreme Court and in every High Court shall be
in the English language;
AND WHEREAS Tamil has been used as the
language of Courts upto the district level inclusive
of drafting of pleadings of parties, taking
evidence, arguments of respective counsel for the
parties and writing of judgements;
AND WHEREAS those who have studied in
Tamil Medium have very little chances of
getting selected in the employment of Central
Government, other State Governments or in
Private Sectors, and therefore preference need
be given to them in the State Government
Services;
AND WHEREAS under Article 14 of the
Constitution, mere differentiation or inequality of
treatment does not per se amount to differentiation
within the inhibition of the equal protection clause
and to attract the operation of the clause, it is
necessary to show that the selection or
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differentiation is unreasonable or arbitrary; that it
does not rest on any rational basis having regard to
the object which the Legislature has in view;
AND WHEREAS the classification between
persons who obtained the educational
qualification prescribed for direct recruitment
through Tamil medium of instruction and
persons studied in other medium has a
reasonable relation to the object sought to be
achieved;
AND WHEREAS such classification neither
crosses the frontiers of Article 16 of the
Constitution nor prejudices the reservation policy
of the State made thereunder;
AND WHEREAS the equality of opportunity of
all citizens with similar qualifications relating to
appointment to any services under the State does
not get altered in view of such classification;
AND WHEREAS the provisions of the Tamil
Nadu Backward Classes, Scheduled Castes and
Scheduled Tribes (Reservation of seats in
Educational Institutions and of appointments or
posts in the Services under the State) Act, 1993
(Tamil Nadu Act 45 of 1994) are not transgressed;
AND WHEREAS unless employment
opportunities are provided for persons studied
in Tamil medium, there is no scope for the
populace of the State to pursue school and
college career through Tamil medium;
AND WHEREAS in order to facilitate a
conducive environment for the populace to
prefer Tamil medium of instruction at all levels
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of education, appointment to any services
under the State on preferential basis of persons
studied in Tamil medium is a rational
classification;
62. A reading of the above underlined clauses
from the preamble of the PSTM Act, 2010 makes it
clear that the intention of the legislature was to give
20% reservation on preferential basis for PSTM
candidates in State employments through direct
recruitment as these persons have otherwise very little
chance of getting employed with the Central and State
Government Departments and or in Private Sectors.
Therefore, it recognised that unless priority is given to
PSTM candidates by conferring preference to them,
there is no scope for the populace in the State to pursue
education in schools and colleges through Tamil
medium.
63. The preamble of the PSTM Act, 2010 also
declares that the provisions of the Tamil Nadu
Backward Classes, Scheduled Castes and Scheduled
Tribes (Reservation of Seats in Educational
Institutions and of appointments or posts in the
Services under the State) Act, 1993, (Tamil Nadu
Act 45 of 1994) was not intended to be transgressed.
64. The preamble also states that classification
between persons who obtained the educational
qualification prescribed for direct recruitment through
Tamil medium of instruction and the persons who have
studied in other medium has a reasonable nexus with
the object sought to be achieved under the Act.
65. Therefore, it recognised that unless priority is
given to PSTM candidates by conferring preference to
them, there is no scope for the populace in the State to
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pursue education in schools and colleges through Tamil
medium.
66. As per Section 3 of the PSTM Act, 2010,
20% of all vacancies in all appointment in the services
under the State which are to be followed by direct
recruitment shall be set apart on preferential basis to
persons studied in Tamil Medium as illustrated in the
aforesaid rules. Section 3 of the Act starts with a non-
obstante which reads as under:-
Section 3.(1) Notwithstanding anything
contained in any law for the time being in force
and subject to section 5, twenty per cent of all
vacancies in appointment in the services under the
State which are to be filled through direct
recruitment shall be set apart on preferential
basis to persons studied in Tamil medium.
(2) Selection for appointment under sub-section
(1) shall be made in such manner as may be
prescribed.
(3) Nothing contained in sub-section (1) shall
apply in the case of appointment to the posts in
the services under the State for which the
educational qualification prescribed in the rules
or regulations or orders applicable to the post is
a degree or diploma or any academic distinction
in a language.”
67. Section 2(d) of the PSTM Act, 2010 defines
the expression “persons studied in Tamil medium”. It
was later amended in 2020, vide Act No.35 of 2020.
The definition before and after amendment read as
under :-
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Section 2(d) of the Section 2(d) of the PSTM
PSTM Act, 2010 before Act, 2010 after
Amendment Amendment
(d)“persons studied in “(d)“person studied in
Tamil medium” means Tamil medium” means a
persons who have person who has studied
obtained the educational through Tamil medium of
qualification or instruction upto the
qualifications educational qualification
prescribed for direct prescribed for direct
recruitment in the rules recruitment in the rules
or regulations or or regulations or orders
orders applicable to applicable to any
any appointment in appointment in the
the services under the services under the State.
State through Tamil
medium of instruction;” Explanation.—For the
purpose of this clause,—
(i) in cases, where SSLC
is prescribed as the
educational qualification,
one shall have studied
upto SSLC through Tamil
medium of instruction;
(ii) in cases, where a
Higher Secondary Course
is prescribed as the
educational qualifi cation,
one shall have studied
SSLC and the Higher
Secondary Course through
Tamil medium of
instruction;
(iii) in cases, where a
diploma is prescribed as
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Section 2(d) of the Section 2(d) of the PSTM
PSTM Act, 2010 before Act, 2010 after
Amendment Amendment
the educational
qualification, one shall
have studied SSLC and
the diploma through Tamil
medium of instruction or
if the diploma is obtained
after completion of Higher
Secondary Course then
one shall have studied
SSLC, Higher Secondary
Course and the diploma
through Tamil medium of
instruction;
(iv) in cases, where a
degree is prescribed as
the educational
qualification, one shall
have studied SSLC,
Higher Secondary
Course and the degree
through Tamil medium
of instruction;
in cases, where a post-
graduate degree is
prescribed as the
educational qualification,
one shall have studied
SSLC, Higher Secondary
Course, degree and the
post-graduate degree
through Tamil medium of
instruction.”.
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(Same definition in Rule 2(d) of the
PSTM Rules)
68. When Recruitment Notification No.2/2019
dated 8.3.2019 was issued, Section 2(d) of the PSTM
Act, 2010 read as it stood before Amendment in 2020,
the respective petitioners possessed required
qualification for being considered on preferential basis
as PSTM candidates.
69. Section 3 of the PSTM Act, 2010 starts with
a non obstante clause is however subject to Section 5 of
the PSTM Act, 2010.
70. Sub -Section (2) to Section 3 of the PSTM
Act, 2010 also states that selection for appointment
shall be made in such manner as may be prescribed.
71. The manner is prescribed under Tamil Nadu
Appointment on Preferential Basis in the Services
under the State of Persons Studied in Tamil Medium
Rules, 2010 (PSTM Rules, 2010). The aforesaid Rules,
predates the enactment of PSTM Act, 2010.
72. It was made in exercise of the powers
conferred by sub-section (1) of Section 8 of the
Tamilnadu Appointment on Preferential basis in the
Services under the State of Persons Studied in Tamil
Medium Ordinance, 2010 (Tamil Nadu Ordinance 3
of 2010) vide G.O.Ms.No.145 Personnel and
Administrative Reforms (S) Department dated
30.09.2010.
73. Rule 3 of the PSTM Rules, 2010 merely
gives an illustration for implementing 20% vacancies in
Government Service contemplated in Section 3 of the
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PSTM Act, 2010. At the time of inception in 2010, the
illustration given in Rule 3 was as under:-
General 19 31 48 65 81 100 115 131
Turn 148 165 181 200
Backwar 18 38 58 74 94 114 134 149
d Classes
(Other
than
backwar 170 19 199
d classes
Muslims
Most 23 46 73 96 123 146 173 196
Backwar
d
Classes/
De-
notified
Commun
ities
Schedule 26 62 92 126 192
d Castes
Backwar 188
d Class
Muslims
Schedule 166
d Castes
Arutntha
thiars
Schedule 150
d Tribes
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74. By G.O.Ms.No.40 dated 30.04.2014,
illustrations in Rule 3 of the PSTM Rules, 2010 was
amended. For the sake of brevity, it is not reproduced.
75. However, it will suffice to state that the
illustration in Rule 3 of the PSTM Rules, 2010 merely
gives an illustration as to how 40 seats (i.e. 20% of 200
seats) shall be set apart on preferential basis for persons
studied in Tamil medium, in their respective category
i.e.within communal roster.
76. As per Section 4 of the Act, persons studied
in Tamil medium shall also be entitled to compete for
the vacancies, other than preferential vacancies in
appointment in the services under the State, along with
persons studied in other medium. In other words,
persons who have studied in Tamil Medium of
instruction are entitled to be compete with other
candidates who have studied in other medium.
77. Section 5 of the PSTM Act, 2010 also makes
it clear that preferential basis of appointments through
direct recruitment of persons studied in Tamil Medium
under Section 3 shall be made following the reservation
as per the law in force. Thus, 20% of the vacancies
under Section 3 of the PSTM Act, 2010 is to be set
apart and reserved only for direct recruitment.
78. As per Section 5 of the PSTM Act, 2010,
“Rules of Reservation” shall apply as in force for
preferential appointment to persons who have studied
in Tamil Medium.
79. As per Section 6 of the PSTM Act, 2010 only
when adequate number of qualified and suitable
persons studied in Tamil Medium are not available for
appointment in the preferential vacancies, such unfilled
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W.P.No.10467 of 2021 and etc.
vacancies shall be filled up with persons studied in
other mediums within the respective category.
80. A cumulative reading of the provisions of the
PSTM Act, 2010, makes it clear that the provisions in
the Act have been incorporated to give preferential
appointment to PSTM candidates in State Government
service. It was intended to be a horizontal reservation
within the existing vertical and horizontal reservation.
81. It was enacted with the twin objects of
promoting the Tamil language and to give priority in
employment on preferential basis to PSTM candidates.
82. Clearly the intention under the PSTM Act,
2010 is not only promote the language Tamil but also
to give incentives to those who study in Tamil Medium
an opportunity to get employed on preferential basis.
83. Preferential appointments under PSTM Act,
2010 was to operate only as a horizontal reservation
and not as a vertical reservation.
84. PSTM Act, 2010 operates within to existing
vertical reservation under the provisions of the Tamil
Nadu Backward Classes, Scheduled Castes and
Scheduled Tribes (Reservation of Seats in
Educational Institutions and of appointments or
posts in the Services under the State) Act, 1993,
(Tamil Nadu Act 45 of 1994) and along with other
horizontal reservation recognised by the courts.
85. Under the Recruitment Notification No.2
dated 8.3.2019, 20% of 969 posts were reserved for in-
service candidates for the post of Sub- Inspector of
Police, 80% was meant for direct recruitment. 20%
from the balance 80% meant for direct recruitment were
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W.P.No.10467 of 2021 and etc.
to be reserved for PSTM candidates on preferential
basis.
86. Thus, a total of 155 number of vacancies
were set apart for appointment on preferential basis for
PSTM candidates as detailed below:-
Men Women/ Total
T
Total vacancies 688 281 969
20% for Inservice 137. 56.2 193.8
Candidates. 6 (56)
Rounded off 138 56 194
Total Vacancies 550 225 775
available for Direct
Recruitment.
20%vacancies for PSTM 110 45 155
87. Thus, 20% of the vacancies were to be filled
through direct recruitment and set apart for persons
who have studied in Tamil medium on preferential
basis is another form of horizontal reservation. While
applying PSTM Act, 2010, the respondents would be
required to apply reservation and preference as per the
terms of the notification calling for application.
88. As Para 15 (vi) of Brochure attached the
Recruitment Notification, the respondents were
required to apply reservation on preferential basis as
follows:-
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15(vi): However, out of those who qualify in the
written examination, only five times of the number
of notified vacancies in each of the category shall
be permitted for next stage of selection i.e. PMT,
ET, PET and Original Certificate Verification
based on the merit.”
89. The minimum marks prescribed for passing
written test was 25 marks out of 70 marks. Thus, those
who secured a minimum of 25 marks in the written
exam were entitled to be sent to the next stage of
selection i.e PMT, ET, PET and Original Certificate
Verification based on the merit.
90. There is a maximum cap fixed in the
Recruitment Notification as is evident from a reading of
the above clause. Not more than 5 times of the
vacancies announced can be sent to the next stage of
selection i.e PMT, ET, PET and Original Certificate
Verification.
91. It is only at that stage, filtering of candidates
among those who have cleared written exams can made
made.
92. In other words, among the PSTM Candidates
who had cleared written exams, 5 times of the
vacancies as against the seats reserved in each category
could be sent to the next stage of selection.
93. The method adopted appears be contrary to
the law declared and affirmed by the Hon’ble Supreme
Court in SAURAV YADAV & ORS. Vs. STATE OF
UTTAR PRADESH & ORS. (2021) 4 SCC 542.
94. The Recruitment Notification dated 8.3.3019
which states preferential will be given only at the final
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W.P.No.10467 of 2021 and etc.
provisional selection thus appears to be only partly in
consonance with the views of the Hon’ble Supreme
Court in SAURAV YADAV & ORS. Vs. STATE OF
UTTAR PRADESH & ORS. (2021) 4 SCC 542. The
preference was to be applied twice i.e. once
immediately after Written Exam and thereafter at the
time of final selection after allowing the successful
candidates qualifying in the written exam to appear in
the next round of selection process.
95. If the method in SAURAV YADAV case was
followed, successful Persons Studied in Tamil Medium
candidates who cleared the written exams were entitled
to participate in PMT, ET, PET and after Original
Certificate Verification based on merits through direct
recruitment of preferential appointment under PSTM
Act, 2010.
96. The ultimate selection of PSTM candidates
was to be allowed only within the confines of vertical
reservation recognized under the Constitution of India
which is under Tamil Nadu Backward Classes,
Scheduled Castes and Scheduled Tribes
(Reservation of Seats in Educational Institutions
and of appointments or posts in the Services under
the State) Act, 1993.
97. The facts indicate that though the petitioners
were considered for selection under the provisions of
the PSTM Act, 2010, they were wrongly filtered and
excluded mid-way though they had cleared the first
stage of selection in written exam. They were called
only for PET.
98. Ultimate filtering and selection candidates
should have been made after they were allowed to
participate in PMT, ET, PET and after original
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Certificate Verification once they cleared the first
threshold.
99. The decision of the Division Bench of this
Court in W.P.No.19112 of 2020 and etc., batch
however vide its order dated 10.2.2021 while holding
20% of the vacancies will have to be filled up as per the
roster point and in accordance with law and the starting
point for applying PSTM Act, 2010 would be at the
initial selection namely written examination and not at
the final stage.
100. If the views of the Division Bench of this
Court in W.P.Nos.19112 of 2020 and etc., batch vide
order dated 10.02.2021 which has been reiterated by
the Division bench of the Madurai Bench of this Court
in W.A.(MD)No.457 of 2021 and W.A.(MD)No.720 of
2021 vide order dated 27.07.2021 is followed,
preferential reservation for PSTM candidates is to be
applied at each stage of selection process i.e. at the
initial stage immediately after written exams and
thereafter at each of the next stage by filtering the
candidates at each stage of selection.
101. The view in W.P.No.19112 of 2020 and
etc., batch vide its order dated 10.2.2021 is based on a
concession given by the then Additional Advocate
General for the respondent and is not in consonance
with the view of the decision of the Hon’ble Supreme
Court in SAURAV YADAV & ORS. Vs. STATE OF
UTTAR PRADESH & ORS. (2021) 4 SCC 542
referred to supra.
102. However, this has not been followed or
applied. The method followed was neither intended by
the legislators nor by the 2nd respondent while issuing
the above recruitment notification.
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W.P.No.10467 of 2021 and etc.
103. Further, operation of Rule 3 of PSTM
Rules, 2010 which prescribes the manner of selection
for the purpose of Section 3 of the PSTM Act, 2010
cannot run contrary to Section 5 of PSTM Act, 2010.
104. As the exercise was not done properly as is
evident from a reading of the counter filed by the
respondents in these writ petitions, the petitioners
cannot be found fault. The petitioners cannot be
expected to rush to the Court. The respondents as
recruiting bodies are required to follow the law as
declared by the Court.
105. The cumulative marks obtained upto the
final stage of test is relevant for provisionally short-
listing and selecting candidates under 20% preferential
quota for PSTM Candidates under PSTM Act.
106. If the procedure adopted by the Hon’ble
Supreme Court in Saurav Yadav and Others vs. State
of Uttar Pradesh and Others (2021) 4 SCC 542, was
followed, the petitioners may have stood a chance for
being appointed on preferential basis.
107. I am therefore inclined to quash the
impugned orders dated 31.05.2021 in W.P.Nos.12833
and 12835 of 2021 and remit the case back to the
second respondent allow the petitioners to be appeared
for next round of selection. If they are found qualified,
the respondents shall create supernumerary post and
absorb them. This exercise shall be completed within a
period 45 days from the date of receipt of a copy of this
this Order.
108. As far as W.P.No.4852 of 2021 is
concerned, it is not clear whether such exercise was
carried pursuant to interim order of this Court. After
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W.P.No.10467 of 2021 and etc.
comparing the total score of each of the candidates
against the respective category provisional selection
shall be made by applying the method in para 59 of the
Saurav Yadav and Ors vs. State of Uttar Pradesh &
Others (2021) 4 SCC 542.
109. In case, these petitioners are found eligible
to be selected under the PSTM Quota under PSTM Act,
2010, the respondents shall create supernumerary posts
on accommodate of these petitioners also and absorb
them into regular services without disturbing
appointments already made.
110. The respondents shall complete the
exercise within a period of 45 days from the date of
receipt of a copy of this order.
111. These writ petitioners are accordingly
allowed with the above observations. No costs.
Consequently, connected miscellaneous petitions are
closed.
18. The respondents are bound to follow the procedure and cannot
unfairly exclude the petitioners contrary to the requirements of the above
Recruitment Notification.
19. Therefore, I am inclined to allow these Writ Petitions by
directing the respondents to permit the petitioners to participate in the
next round of selection and thereafter apply the test procedure prescribed
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W.P.No.10467 of 2021 and etc.
/ recognized in Saurav Yadv case referred to supra. This exercise shall
be carried out by the respondents within a period of four (4) weeks from
the date of receipt of a copy of this order along with the petitioners in
W.P.Nos.12833, 12835 & 4852 of 2021.
20. If the petitioners are entitled to be selected, following the
procedure in Clause 15(vi) of the Recruitment Notification and test in
Saurav Yadv case referred to supra the respondents shall absorb these
petitioners into service by creating supernumerary posts and regularize
their appointment. Entire exercise shall be carried out by the respondents
within one eighty (180) days from the date of receipt of a copy of this
order.
21. These Writ Petitions are allowed. No cost. Consequently,
connected Miscellaneous Petitions are closed.
07.01.2022
Internet : Yes/No
Index : Yes / No
jen
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W.P.No.10467 of 2021 and etc.
To
1.The Member Secretary,
Tamil Nadu Uniformed Services Recruitment Board (TNUSRB),
Old Commissioner of Police Office Campus,
Panthean Road, Egmore,
Chennai – 600 008.
2.The Director General of Police,
Tamil Nadu,
Dr.Radhakrishnan Salai,
Mylapore, Chennai – 600 004.
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W.P.No.10467 of 2021 and etc.
C.SARAVANAN, J.
jen
Pre-Delivery Common Order
in
W.P.No.10467 of 2021 and etc.
07.01.2022
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