Madras High Court
R.Sureshkumar vs The Home Secretary on 25 February, 2021
W.P.No.4648 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 25.02.2021
C ORAM
The Hon'ble Mr. Justice SENTHILKUMAR RAMAMOORTHY
W.P.No.4648 of 2010
R.Sureshkumar ... Petitioner
..vs..
1.The Home Secretary,
Secretariat,
Chennai-600 009.
2.The Director General of Police,
Police Head Quarters,
Chennai-600 004.
3.The Chairman,
Tamilnadu Uniformed Services Recruitment Board,
Chennai-600 002.
4. The Deputy Inspector General of Police,
Social Justice and Human Rights,
Chennai-600 004. ... Respondents
PRAYER : Petition filed under Article 226 of the Constitution of India,
praying to issue a writ of Mandamus directing the Respondents to include
the Petitioner's name in the list of selected candidates for the post of Grade-
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II, Police Constable (Men & Women) for the year 2009, in connection with
the selection held during December, 2009.
For Petitioner : M/s.Prakash Goklaney
For Respondents : Mr.G.K.Muthukumar,
Special Govt. Pleader for R1, 2 and 4
Mr.V.Kathirvelu,
Special Govt. Pleader for R3
ORDER
The Petitioner challenges his non-selection for the post of Grade
II Police Constable in the year 2009. The Tamil Nadu Uniformed Services
Recruitment Board invited applications vide advertisement No.1/2009,
dated 27.06.2009 (the Recruitment Notification), for recruiting 4000 Grade-
II Police Constables (Men and Women) for the year 2009. The Petitioner,
admittedly, applied for the post of Grade II Police Constable in the 'ward'
category. For applications in the 'ward' category, the Recruitment
Notification mandated that a ward certificate should be enclosed with the
application. The Petitioner, admittedly, did not enclose such ward certificate
with his application. In paragraphs 6 to 8 of the affidavit, the Petitioner
explained the facts and circumstances relating to the inability to enclose the
ward certificate with the application and also adverted to the subsequent
production of a ward certificate on 27.10.2009. Eventually, by
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communication dated 12.01.2010, the application of the Petitioner was
rejected and that resulted in the filing of the present writ petition.
2. Mr.Prakash Goklaney, learned counsel for the Petitioner,
contended that the Petitioner was unable to enclose the ward certificate with
his application in spite of making concerted efforts to obtain and enclose
such certificate. In specific, he contends that the Petitioner's father initially
applied for a ward certificate from the Police Department, Vellore, but he
was informed that it should be obtained from the Police Department,
Kanyakumari. Upon enquiry at Kanyakumari, he was informed that it should
be obtained from the office of the Inspector General of Police (Social
Justice and Human Rights), Chennai). In this manner, it is stated that the
Petitioner's father was driven from pillar to post and, finally, after
considerable effort, he obtained the certificate only on 21.10.2009. In these
facts and circumstances, Mr.Goklaney contends that the Petitioner's
candidature should not have been rejected on account of the belated
production of the ward certificate. In support of the aforesaid contentions,
he relies upon the following judgments of this Court:
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(i) A.Gomathy v. The Secretary to
Government, Home (Police IV) Department, Fort
St. George, Chennai-600 009 and two others (A.
Gomathy), W.P.No.1166 of 2010, order dated
19.02.2010.
(ii) The Secretary, Tamil Nadu Public
Service Commission v. M.Chitra and another
(M.Chithra), W.A.(MD) No.585 of 2009, judgment
dated 11.11.2009.
3. Mr.Goklaney contends that the order in the case of
A.Gomathy(supra) dealt with an identical issue relating to the non-
production of a ward certificate. In spite of such non-production, this Court
concluded that the rejection of the candidature was on hyper-technical
grounds. He also pointed out that the Division Bench of this Court in the
case of M.Chithra (supra) concluded that the non-production of the
community certificate by the respondent therein was not a valid reason to
reject her application. According to Mr. Goklaney, the Petitioner herein is on
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a stronger footing inasmuch as he produced the ward certificate, albeit
belatedly.
4. The learned Special Government Pleader refuted the aforesaid
contentions by drawing reference to the Recruitment Notification. He relied,
specifically, upon sub-paragraph (viii) of paragraph 10 and sub-paragraph
(xi) of paragraph 7 of the Recruitment Notification, which prescribed,
respectively, the requirement of enclosing the ward certificate with the
application and that if the ward certificate is not enclosed, the candidate
would not be considered under the 'wards quota', and that no new
certificates would be considered at the time of certificate verification. He
also pointed out that 1096 candidates were in the same position as the
Petitioner and were not considered under the 'wards quota' due to non-
fulfilment of the production of 'ward certificate' criterion. Consequently, he
submits that the Petitioner cannot be treated differently and that any such
differential treatment would amount to unjust discrimination against other
similarly placed candidates.
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5. With regard to the judgments cited by Mr.Goklaney,
Mr.G.K.Muthukumar submits that the judgment in the case of
A.Gomathy(supra) is distinguishable, inasmuch as the applicant therein
enclosed a ward certificate dated 11.12.2006 along with the application and
the rejection was on the basis that the certificate was not in the prescribed
format. He also submits that the judgment of the Division Bench of this
Court in M.Chithra (supra) is distinguishable inasmuch as it relates to a
community certificate and not a ward certificate.
6. Upon considering the rival contentions, it is evident that the
dispute lies within a narrow compass. The undisputed position is that the
clauses in the Recruitment Notification that prescribe the requirement of
producing a ward certificate are not under challenge. Therefore, the question
that arises for consideration is whether the Petitioner's application should
have been considered notwithstanding the non-compliance with certain
conditions in the Recruitment Notification. The general principle in respect
of recruitment by the Government is that such recruitment should be made
in compliance with the terms and conditions specified in the recruitment
notification. The sacrosanct status of the recruitment notification was
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affirmed in cases such as Dr.M.Vennila v. Tamil Nadu Public Service
Commission, 2006 (3) CTC 449, by a Division Bench of this Court.
However, this sacrosanct status has, in certain cases, been qualified by
carving out exceptions. Such exceptions have been made if the requirements
in such notifications have been construed as procedural, directory or non-
essential as opposed to being essential or mandatory. Therefore, the test
would be to examine the relevant clauses and ascertain whether the said
clauses are essential or non-essential. Sub-para (viii) of paragraph 10 of the
and sub para (xi) of paragraph 7 of the Recruitment Notification are relevant
for this purpose and the said clauses are set out below in the said order:
“The wards certificate should be obtained
from the Superintendents of Police/Joint Commissioner
of Police and Commissioner of Police. The wards
certificate should be obtained for every recruitment
afresh after the notification for that recruitment and
before the last date for the receipt of application. The
copy of the wards certificate should be enclosed along
with the application. If the wards certificates are not
enclosed along with the application form, these
candidates will not be considered under wards quota.”
“The copies of the certificate enclosed along
with the application is only admissible for verification
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during certificate verification. No new certificates will
be entertained and will not be taken into consideration.”
7. Upon examining sub-paragraph (viii) of paragraph 10, it is
evident that it specifies that the ward certificate should be obtained from
officers holding specific posts in the Police Department. It also specifies
that the certificate should be obtained afresh after the recruitment
notification was issued and before the last date of receipt of the application.
More importantly, it records that the certificate should be enclosed along
with the application and that, in the event of non-compliance, the candidate
would not be considered under the wards quota. Sub-paragraph (xi) of
paragraph 7 prescribes that no new certificate will be entertained at the time
of verification and that the certificate verification is only intended to verify
the genuineness of certificates, if copies thereof were produced along with
the application.
8. The test to be applied to determine whether a requirement is
essential or non-essential is to pose the question: is it a matter of form or
substance? In the case at hand, the application was rejected on account of
non-production of the ward certificate and, therefore, the test would be:
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would the applicant qualify for selection without taking into consideration
the ward certificate? The undisputed answer, in this case, is that the
Petitioner would not qualify inasmuch as he did not secure the specified
qualifying marks for a person who does not belong to the ward category.
The answer could be different if a ward certificate had been produced, albeit
in a different format, as was the case in A. Gomathy, or if it was obtained
from a police officer of a comparable but different rank and there is no
reason to doubt the genuineness of the certificate. In the latter illustrations,
it would be a matter of form and not substance and, therefore, the
prescription could be construed as non-essential. Such is not the situation in
this case.
9. As regards the judgments cited by Mr.Goklaney, it is clear from
paragraphs 6 to 8 of the order in A.Gomathy(supra) that the applicant
therein had obtained and enclosed, along with his application, a certificate
dated 11.12.2006 from the Superintendent of Police, Tiruvannamalai.
However, the candidate was rejected because the certificate was not in the
new format. In the said facts and circumstances, the Court concluded that
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the stand taken by the official respondents therein was hyper-technical. This
is clear from paragraph 8, which is set out below:
“8. In my view, the stand taken by the
second respondent is hyper-technical. Admittedly,
the petitioner is a ward of a policeman, who retired
from service as Head Constable from
Thiruvannamalai District. She had applied under
the wards category for selection to the post of
Grade II Police Constable during the previous
selection, but was unsuccessful, since she did not
secure the required cut off marks. In the present
selection, she has produced the certificate dated
11.12.2006 issued by the Superintendent of Police,
Thiruvannamalai district. This certificate clearly
states that she is a ward of policeman and she is
also entitled for being considered for appointment
under 10% reserved category, as ordered by the
Government in G.O.Ms.No.834, Home (Po.III)
Department, dated 10.09.2001 and Government
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Letters dated 12.04.2002 and 26.03.2002.
Therefore, the status of the petitioner as being a
ward of a policeman cannot be disputed. If that be
the case, the next question which has to be
considered is as to whether the petitioner can be
denied being considered under the wards
category, merely because she did not furnish the
certificate of the current date in the revised format.
It is to be noted that though at the time of applying
for the said post, the petitioner had produced a
certificate dated 11.12.2006. But at the time of
certificate verification, the petitioner had produced
the certificate dated 08.12.2009 certifying her
status as ward of policeman and this certificate in
the new format is accepted to have been produced
at the time of certificate verification held on
11.12.2009.”
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10. The judgment of the Hon'ble Division Bench of this Court in
the case of the M. Chithra (supra) also turned on the specific facts and
circumstances thereof. This is very clear from paragraph 20 of the said
judgment, wherein the Hon'ble Division Bench records that, ordinarily, upon
application of the relevant principles, the Court would have rejected the
claim of the first respondent therein. However, the claim was accepted on
account of the peculiar circumstances. Paragraph 20 of the said judgment is
set out below:
“20. It is true that the first respondent
did not produce the Communicate Certificate
before the provisional list of selected candidates
was finalized. On this score, in normal course,
applying the principles stated above, this Court
would have held that the claim of the first
respondent for consideration under the reserved
quota for Scheduled Tribe should be rejected. But,
we do not propose to do so, for the simple reason,
as we have elaborately narrated above that the first
respondent cannot be blamed for the belated
issuance of Community Certificate. As we have
already stated, the request of the first respondent
for issuance of Community Certificate was
pending before the Revenue Divisional Officer for
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more than a decade. It is only in these special and
peculiar circumstances, we are inclined to sustain
the Order of the learned Single Judge.”
11. Thus, upon considering the material facts and the law
applicable to the case on hand, I find that the official respondents were fully
justified in rejecting the application of the Petitioner on account of failure to
comply with essential conditions of the Recruitment Notification.
Consequently, Writ Petition No.4648 of 2010 is dismissed. However, there
will be no order as to costs. The connected miscellaneous petition is also
closed.
25.02.2021
Index :Yes
Internet :Yes
kal
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To
1.The Home Secretary,
Secretariat,
Chennai-600 009.
2.The Director General of Police,
Police Head Quarters,
Chennai-600 004.
3.The Chairman,
Tamilnadu Uniformed Services Recruitment Board,
Chennai-600 002.
4. The Deputy Inspector General of Police,
Social Justice and Human Rights,
Chennai-600 004.
SENTHILKUMAR RAMAMOORTHY, J
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