Madras High Court
R.Sadam Husshine vs Tamilnadu Public Service ... on 29 November, 2021
W.P(MD)No.20028 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.11.2021
CORAM :
THE HON`BLE MR.JUSTICE B.PUGALENDHI
W.P(MD) No.20028 of 2021
R.Sadam Husshine Petitioner
Vs.
1.Tamilnadu Public Service Commission,
Through its Secretary,
TNPSC Road,
VOC Nagar,
Park Town,
Chennai – 600 003.
2.Tamilnadu Arasu Cable TV Corporation Ltd,
Through its Managing Director,
Dugar Towers,
34(123) 6th Floor,
Marshalls Road,
Egmore,
Chennai – 600 008. Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of
India, praying for issuance of a Writ of Mandamus, directing the
respondents to relax and extend the time limit for certificate verification
in respect of the post of Assistant Director (Technical) in the Department
of Industries and Commerce Tamilnadu as per 22.09.2021
notification/press release of the TNPSC in its website in respect of the
1/25
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W.P(MD)No.20028 of 2021
petitioner and permit all other acts necessary to enable the petitioner to
submit documents for certificate verification, within the time stipulated
by this Court.
For Petitioner :Mr.H.Lakshmi Shankar
For Respondent :Mr.J.Anand Kumar
ORDER
The writ petition is filed for a Mandamus, directing the first
respondent to extend the time limit for certificate verification, in respect
of the post of Assistant Director (Technical) in the Department of
Industries and Commerce, Tamilnadu, as per notification/press release of
the TNPSC, dated 22.09.2021.
2.The case of the petitioner is that he is a B.Tech graduate.
He studied at Amrita Vishwa Vidhyapetham University, Coimbatore and
passed the degree with distinction in the year 2014. He applied for the
post of Assistant Director of Industries and Commerce (Technical), on
09.12.2019, as per the recruitment notification No.34/2019 issued by the
first respondent/TNPSC issued. As per the said notification, the tentative
time line for recruitment process is as under:-
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W.P(MD)No.20028 of 2021
Sl.No. Process Timeline
1. Written Examination 25.04.2020
& 26.04.2020
2. Publication of results May 2020
3. Certificate upload for CV June 2020
4. Certificate verification June 2020
5. Date of oral test July 2020
6. Final selection list July 2020
As scheduled, the recruitment process could not be adhered as per the
time line fixed by the TNPSC by themselves, and the reason stated by the
TNPSC is COVID-19 pandemic situation. On 09.01.2021, written
examination was conducted and on 22.09.2021 only, press release was
issued by TNPSC vide advertisement number 46 of 2021, which declared
the result and the date for certificate verification to be between
04.10.2021 to 12.10.2021, till 5.30 pm. According to the petitioner, this
press release/result was published only in the TNPSC website and they
have not communicated the result to the petitioner.
2.1.The learned counsel for the petitioner submits that from
04.10.2021 to 12.10.2021, online certificate verification was conducted
by TNPSC for candidates, who cleared the written examination. But, the
petitioner did not receive any email or SMS, informing about the process
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of certificate verification in advance. i.e, no email or SMS was received
by the petitioner, before 04.10.2021 informing this process of certificate
verification. The learned counsel for the petitioner has relied on
paragraph 13 (d) of notification, dated 09.12.2019, which reads as
under:-
“COMMUNICATION TO APPLICANTS:
Individual communication regarding the date and time
of certificate verification, oral test and counselling (as
applicable) will not be sent to the applicants by post.
The details will be made available on the
Commission's website. Applicants will be informed of
the above fact only through SMS and e-mail and they
should watch the Commission's website in this
regard”
2.2.The learned counsel further submits that the notification
of the TNPSC being mandatory and having force of law ought to be
strictly complied with by TNPSC also. But, TNPSC did not adhere to the
timeliness stipulated in the notification for recruitment process, citing
COVID-19 pandemic. So, it can be easily inferred that the timeline in the
notification is not mandatory in such strict sense and circumstances can
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very well be taken into account, to relax it. TNPSC is bound to send
communications to the applicants by e-mail and SMS, apart from hosting
the information in the website. All the three modes are obligatory and the
TNPSC cannot fail to adhere to these modes of communication notified.
The hosting of the information in the website without sending e-mail and
SMS will not fulfil the requirement as per clause 13(d) of the
notification. Failure to do so will clearely be an infraction by the TNPSC
of the mandatory procedure. In the present case, TNPSC has not sent e-
mail. The SMS was received by the petitioner on 12.10.2021 around
12.03 pm and this is last date for uploading certificates by approaching e-
seva centre. No e-mail or SMS communication was served upon the
petitioner before the commencement of the certificate verification
process, from the TNPSC and TNPSC has violated the mandatory
instructions/procedure notified by them. It is a settled principle of law
that a party, who is at the fault cannot take advantage of his own fault.
2.3.Therefore, according to the learned counsel for the
petitioner, the petitioner must be provided an opportunity to submit the
original certificates, by extending time as stipulated in the notification.
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3.Mr.J.Anand Kumar, learned counsel appearing for the
respondent submits that the candidates, who have applied as per the
notification are bound by the notification and they are agreed to the terms
and conditions of the notification, by way of declaration given in the
online application, before participating in the written examination.
Having agreed for the terms and conditions, the petitioner cannot
challenge the terms and conditions prescribed in the notification at any
point of time. The learned counsel for the respondent has also relied upon
the notification, dated 09.12.2019, and the relevant clauses are as
follows:
“PARA 12(H)
Any claim made after the submission of online
application will not be entertained. Evidence for all
the claims made in the online application should be
uploaded /submitted in time when the same are called
for. Failure to upload/submit the documents within
the stipulated time limit will entail rejection of
application.
PARA 13(d)
Individual communication regarding the date and
time of Certificate verification, oral test and
counselling (as applicable) will not be sent to the
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applicant by post. The details will be made available
on the Commission's website. Applicants will be
informed of the above fact only through SMS and e-
mail and they should watch the Commission's website
in this regard.
PARA 15
Applicants should upload/submit the required
documents for proof in respect of all the claims made
in the application with reference to this notification as
and when called for. If the required certificates are not
uploaded or submitted by the applicants, within the
stipulated time, their applications will be rejected.”
3.1.The learned counsel appearing for the respondent
brought to the notice of this Court that the petitioner has given the
following declaration in the online application for the above said
recruitment:-
“16.I am fully aware that no individual
communication regarding the date and time of oral
test, certificate verification and counselling (wherever
applicable) will be sent to me. I am also aware that
the schedule of oral test/counselling/certificate
verification will be made available on the
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Commission's website and I have to know the above
details on receipt of e-mail/press release/SMS alers
from the Commission to this effect.”
Therefore, according to the learned counsel for the respondent, it is the
responsibility of the petitioner to check his e-mail/ Press release/SMS
alerts from the Commission periodically. The conditions imposed in the
memorandum No.4187/APD-B1/2019, dated 23.09.021, clause (iv) of
para .3 and Notes appended to very same memorandum are as follows:-
“..iv.If he/she fails to upload any one or more of the
documents/certificates within the stipulated time limit
for onscreen certificate verification, he/she will not be
considered further stage of selection process and
his/her candidature will be rejected without any further
notice”
“..5. Candidates who have been admitted provisionally
to the Onscreen certificate verifi'are hereby advised to
upload the scanned copy of all relevant documents
without fail. Failure to upload even any one of the
essential documents within the time limit stipulated
above will result in his/her non-admission to the next
stage of selection and rejection of his/her online
application.”
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Therefore, according to him, cumulative reading of all conditions make it
clear that these conditions are mandatory. Therefore, the petitioner, who
accepted and participated in the selection process is not entitled to seek
relaxation of conditions now, which is impermissible in law.
3.2.He further submits that based on the above instruction to
applicant, e-mail has been sent on 27.09.2021 and SMS also sent on
27.09.2021, 29.09.2021 and 12.10.2021. Since the petitioner failed ot
upload the certificates in time, he was not considered for further selection
process with respect to Paragraph 15 of the notification.
4.The learned counsel for the petitioner disputed the same,
stating that the petitioner has not received email as claimed by the
respondent and SMS was also received by him, only last minute i.e on
12.10.2021, which is the last date for uploading of certificates. He was
not having sufficient time, since he is working in Hyderabad, as he could
not immediately get leave from his employer, to approach the respondent
immediately, to furnish the certificates for verification and therefore, he
has made request to his parents to upload the certificates through e-seva
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centre. The parents of the petitioner also approached the e-seva centre,
Dindigul. The person, who was incharge of e-seva centre at Dindigul,
refused to upload the certificates, in the absence of candidate/the
petitioner herein, and therefore, they went to E-seva centre located at
Madurai and attempted to upload the certificates. But, in the meantime,
time lapsed and they could not effectively upload the certificates through
online, as instructed by the respondent. Thereafter, the petitioner has sent
all the copies of certificates to the respondent/TNPSC, through RPAD on
13.10.2021.
5.The learned counsel for the respondent submits that this
Court cannot take any decision on this factual aspect, since the
Honourable Apex Court in catena of judgments has decided the issue and
there cannot be any change or modification in the notification and the
candidates scrupulously supposed to follow the terms and conditions of
the notification strictly. He also relied on the orders of the Honourable
Apex Court in Civil Appeal No.6669 of 2019 (Arising out of SLP (C)
No.14093 of 2019, the State of Tamil Nadu and others Vs.G.Hemalatha
& another, wherein, our Honourable Apex Court has held as follows:-
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9.Inspite of the finding that there was no
adherence to the instructions, the High
Court granted the relief, ignoring the
mandatory nature of the instructions. It
cannot be said that such exercise of
discretion should be affirmed by us,
especially when such direction is in the teeth
of the instructions, which are binding on the
candidates taking the examinations.
...
12.After giving thoughtful consideration, we
are afraid that we cannot approve the
judgment of the High Court as any order in
favour of the candidate who has violated the
mandatory instructions would be laying
down bad law. The other submission made by
Ms.Mohana that an order can be passed by
us under Article 142 of the Constitution
which shall not be treated as a precedent
also does not appeal to us.
In support of his contentions, he also placed reliance on the orders of the
Division Bench of this Court in W.A.No.1629 of 2021 and the relevant
portion is extracted as under:-
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14.It is relevant to point out that in the
notification, it is clearly stated that
individual communication regarding the date
and time of certificate verification, oral test
and counselling (as applicable) will not be
sent to the applicants by post. The details will
be made available on the commission's
website. The applicants will be informed of
the above fact only through SMS and e-mail
and they should watch the commission's
website in this regard. The writ petitioner
fairly admits that she received message
through SMS, but she has stated that it was
not sent in the usual tag, but in a different
tag. The result was also uploaded in the
Public Service Commission website. So, we
find it difficult to accept the reasons given by
the writ petitioner.
15.Keeping in view the principles laid down
in the above decisions, we are of the
considered view that the writ appeal is to be
allowed and accordingly, the same is allowed
by setting aside the order passed by the
learned single judge in W.P.No.1568 of 2021,
dated 09.03.2021. No costs.
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He also relied on the common order passed by the full bench of this
Court in W.P.Nos.10010 of 2015 and 3611 of 2020, wherein, it was held
as follows.
24.The instructions to candidates form part
of the application for selection to the post of
Civil Judge. The instructions are in the nater
of rules of selection akin to conditions in a
prospectus. The candidates have accepted the
conditions and participated in the selection
process. The instructions to candidates
clearly bar information being divulged as
regards causes of their failure in their test,
that too, before the completion of the
selection process. Therefore, the petitioner is
estopped from arguing contrary to the
instructions. To ensure purity in the oral test
and unbias the evaluation, marks secured by
the candidate in the written examination
should not be disclosed till the completion of
the selection process.
6.In reply, the learned counsel for the petitioner submits that
reliance is placed by TNPSC upon the Honourable Division Bench,
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Judgment dated 16.09.2021, in W.A.No.1629 of 2021, in the case TNPSC
Vs.Jayashri and another. But, the facts of that case is entirely different
from the present case on hand. In that case, the writ petitioner has
admitted that she did not notice the e-mail communication and SMS sent
to her by the TNPSC. In fact, SMS was sent to her as early as on
22.10.2020 (i.e) six days prior to the commencement of online certificate
verification. It is due to her fault. The Honourable Division Bench, after
considering the admitted facts in the case, have concluded that the writ
petitioner in that case cannot be given indulgence by accepting the
reason given by her. The Honorable Division Bench has also made an
observation that if the reasons given are acceptable, then the Court would
have considered it. The learned counsel further submits that TNPSC also
relied upon the judgment of Honourable Supreme Court in 2019 SCC
online SC 1113 and has contended that the instructions given in the
notification are mandatory, having force of law and have to be strictly
adhered to and court cannot modify or relax the instruction. Here, the
petitioner's case cannot be equated with the facts and circumstances of
that case.
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7. The learned counsel has also relied on the Judgment of
the Honourable Supreme Court in Civil Appeal No.5055 of 2012
(Arising out of SLP(C) No.7440 of 2012), dated, 10.07.2012, Asha vas.
Pt.B.D, Sharma University of Health Sciences and others.
31.There is no doubt that 30th September is
the cut-off date. The authorities cannot grant
admission beyond the cut-off date, which is
specifically postulated. But where no fault is
attributable to a candidate and she is denied
admission for arbitrary reasons, should the
cut-off date be permitted to operate as a bar
to admission to such students particularly,
when it would result in complete ruining of
the professional career of a meritorious
candidate, is the question we have to answer.
Having recorded that the appellant is not at
fault and she pursued her rights and
remedies as expeditiously as possible, we are
of the considered view that the cut-off date
cannot be used as a technical instrument or
tool to deny admission to a meritorious
students. The rule of merit stands completely
defeated in the facts of the present case. The
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Appellant was a candidate placed higher in
the merit list. It cannot be disputed that
candidates having merit much lower to her
have already been given admission in the
MBBS course. The appellant had attained
832 marks, while the students who had
attained 821, 792, 752, 740 and 731 marks
have already been given admission in the
ESM category in the MBBS course. It is not
only unfortunate but apparently unfair that
the appellant be denied admission. Though
there can be rarest of rare cases or
exceptional circumstances where the court
may have to mould the relief and make
exception to the cut-off date of 30th
September, but in the cases, the Court must
first return a finding that no fault is
attributable to the candidate, the candidate
has pursued her rights and legal remedies
expeditiously without any delay and that
there is fault on the part of the authorities
and apparent breach of some rules,
Regulations and principles in the process of
selection and grant of admission. Where
denial of admission violates the right to
equality and equal treatment of the
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candidate, it would be completely unjust and
unfair to deny such exceptional relief to the
candidate.
Finally, the Honourable Supreme Court has directed the respondent to
accept the application of the petitioner in the above case, granting
admission to MBBS. He also relied on another order passed by this Court
in W.P.No.20202 of 2020, K.Sampath Kumar Vs.The Additional Chief
Secretary to Government, Tourism Culture & Religious Endowment
Department, Secretariat, Chennai and another, wherein, it was held as
follows:-
7.In the light of the aforesaid, while making it
clear that this order shall not be cited as a
precedent for other similar matters, I am
inclined to permit the petitioner to appeear
before R2 at 10.00 a.m, tomorrow i.e
29.12.2020, where he shall present his
certificates for verification. Admission to
counselling shall be subject to the authorities
finding the certificates to be in order and all
other formalities being complied with. I make
it clear that the only benefit that has been
extended to the petitioner under this order is
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the condonation of the delay in submission of
the certificates for online verification. That
apart, the petitioner shall be subject to all
processes as per the regular procedure
followed by the respondents in the case of
other selected candidates.
8. This Court paid its anxious consideration to the rival
submissions made and also perused the materials placed on record.
9.The petitioner has applied for the post of Assistant
Director of Industries and Commerce (Technical) on 09.12.2019, as per
the recruitment notification No.34/2019 issued by the first
respondent/TNPSC. Written examination was scheduled on 25.04.2020
and on 26.04.2020 and the publication of results are scheduled as May
2020. But, in view of the pandemic situation, written examination as
mentioned in the original Notification has been postponed from
25.04.2020 to 09.01.2021. The petitioner, who participated in the written
examination has successfully cleared the examination. But, the results
have been declared only on 22.09.2021 in the TNPSC website. It is
pertinent to note that as per original notification, written examination
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was scheduled to be held on 25.04.2020 and 26.04.2020 and publication
of results was fixed as May 2020. But, in this case, they have taken
substantial time of nine months for declaring results of the examination,
which was conducted in the month of January 2021.
10.It is to be noted that, as per TNPSC notification, the
process of uploading certificates has to be done, before the due date,
through e-seva centre alone and the time was fixed as June 2020, as per
the original notification. But, in view of the subsequent modification
made by the respondent/TNPSC, the cut off date has been prescribed for
uploading the certificates have been fixed as from 04.10.2021 to
12.10.2021, till 5.30 pm. As per notification, the declaration of result and
the date for uploading the certificates would be communicated to the
concerned candidates through email and SMS. The learned counsel for
the petitioner claims that they have not received any e-mail or SMS from
the respondent and according to the petitioner, he received SMS only at
eleventh-hour, i.e on 12.10.2021 at 12.03 p.m and the same is disputed
by the respondent counsel. However, he has not placed any valid material
before this Court to substantiate their case that the petitioner has been
communicated through e-mail or SMS, well in advance. On the other
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hand, in the counter affidavit, a specific stand has been taken by the
respondent that SMS was sent to the petitioner on three occasions, on
27.09.2021, 29.09.2021 and 12.10.2021. Even this aspect also could not
be substantiated by the respondent's counsel with any valid documents.
The learned counsel for the respondent submits that all these
communications have been made through automated messages and it
cannot be identified or can be placed before this Court as proof for those
communications.
11. The learned counsel for the petitioner made specific plea
that the petitioner, who is an aspirant has been waiting for this
opportunity for several years and has also prepared for the examinations
and has cleared the written examinations successfully. While so, there
cannot be any delay on the part of the petitioner and on receipt of
communication on 12.10.2021, he took steps immediately to upload the
certificates, even he was working in Hydrabad at the relevant point of
time, by requesting his age old parents to upload the certificates through
nearby e-seva centre. When the parents went to the e-seva centre for
uploading the certificates, it was refused by the person, who was in-
charge of the said e-seva centre, in the absence of the petitioner.
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Thereafter, the petitioner's parents went to e-seva centre at Madurai to
upload the certificates. But, unfortunately, time lapsed. However, on
13.10.2021, the petitioner had sent all the copies of certificates to the
respondent/TNPSC, through RPAD. Hence, according to the petitioner,
there is no fault on his part, since he made every effort to upload the
certificates.
12.No doubt, it is settled position of law that the candidates
are bound by the notification scrupulously. But in this case, due to
pandemic situation, written examination as mentioned in the original
notification has been modified by TNPSC from 25.04.2020 to 09.01.2021
and the results have also been declared conveniently, after nine months,
i.e on 22.09.2021. Oral test has not been conducted so far. As per the
notification, there is a physical verification of the certificates before
conducting oral test. In this case, the petitioner could not upload the
certificates through online, in view of the difficulties expressed by the
petitioner as stated supra. The petitioner was working in Hydrabad at the
relevant point of time. The reasons stated by the petitioner seems to be
genuine. The object of conducting examination through TNPSC is to
select the right candidates for the right post, enabling them to discharge
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their duty effectively. In this case, just because the petitioner could not
upload the certificates within the time limit, it should not result in
ruining the professional career of a meritorious candidate. Considering
the fact that he is a successful candidate in written examination and he
made every effort to upload the certificates, more particularly, he had
sent the photocopies of certificates to the respondent, through RPAD, he
should be given an opportunity to upload the certificates.
13. In the judgment passed in Civil Appeal Nos.2704-06 of
1979, dated 21.04.1989, Anandi Mukta Sadguru Shree Muktajee
Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others
vas. V.R.Rudani and others, our Honourable Apex Court has held as
follows:-
22.....The Judicial control over the fast
expanding maze of bodies affecting the rights
of the people should not be put into water-
tight compartment. It should remain flexible
to meet the requirements of variable
circumstances. Mandamus is a very wide
remedy which must be easily available 'to
reach injustice whenever it is found'.
Technicalities should not come in the way of
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granting that relief under Article 226. We,
therefore, reject the contention urged for the
appellants on the maintainability of the writ
petition.
14.In view of the forgoing reasons and the various decisions
of the Honourable Apex Court cited supra and also taking into
consideration the facts and circumstances of the case, this writ petition is
allowed, with a direction to the respondent to permit the petitioner to
upload the certificates as exceptional and special case, within a period of
one week from the date of receipt of a copy of this order. The petitioner
is directed to be present before the respondent/TNPSC within a period of
one week from the date of receipt of a copy of this order and shall
produce the certificates in person to the respondent. On such production
of the certificates, the respondent Board shall proceed with the other
stage of the notification, immediately. No costs.
29.11.2021
Index : Yes/No
Internet : Yes/No
vrn
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W.P(MD)No.20028 of 2021
Note:
1.Issue order copy on 10.12.2021.
2.In view of the present lock down owing to COVID-19 pandemic, a web
copy of the order may be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
To
1.Tamilnadu Public Service Commission,
Through its Secretary,
TNPSC Road,
VOC Nagar,
Park Town,
Chennai – 600 003.
2.Tamilnadu Arasu Cable TV Corporation Ltd,
Through its Managing Director,
Dugar Towers,
34(123) 6th Floor,
Marshalls Road,
Egmore,
Chennai – 600 008.
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W.P(MD)No.20028 of 2021
B.PUGALENDHI, J
vrn
Order made in
W.P(MD) No.20028 of 2021
29.11.2021
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