Madras High Court
Dr.P.Mujeethabai vs The State Of Tamil Nadu on 27 September, 2022
1 W.P.(MD)NO.1934 OF 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.09.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P.(MD)Nos.1934 & 2037 of 2020 and
W.M.P.(MD)Nos.1617, 1619 to 1622, 1698 to
1700, 1702 & 1703 of 2020
Dr.P.Mujeethabai ... Petitioner
in W.P.(MD)No.1934 of 2020
Dr.M.Suganthi ... Petitioner
in W.P.(MD)No.2037 of 2020
Vs.
1. The State of Tamil Nadu,
Rep. By its Principal Secretary,
Health and Family Welfare Department,
Fort St. George, Secretariat,
Chennai – 600 009.
2. The Director of Indian Medicine and Homeopathy,
Arignar Anna Hospital Complex,
Arumbakkam, Chennai.
3. Medical Services Recruitment Board (MRB),
Rep. By its Member Secretary,
7th Floor, DMS Building,
359, Anna Salai, Teynampet,
Chennai – 600 006.
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2 W.P.(MD)NO.1934 OF 2020
4. The Joint Director of CBI (South),
College Road, Suba Road Avenue,
Thousand Lights,
Chennai – 600 006.
5. Dr.V.Ramadass,
Assistant Medical Officer (Siddha),
Government Hospital,
Tirupattur, Vellore District. ... Respondents
in both petitions
Common Prayer: Writ petitions filed under Article
226 of the Constitution of India, to issue a Writ of
Certiorarified Mandamus, to call for the records on the file of
the 3rd respondent in connection with the impugned
provisional selection list issued by him in notification
No.6/MRB/2017, dated 16.11.2017 and the consequential
rejection order passed by him in his proceedings in Pro.
No.1674/MRB/S2/2017 dated 21.11.2019 and quash the both
as unconstitutional and illegal and thereby direct the 3rd
respondent to prepare the fresh selection list based on merit
and communal reservation by following G.O.Ms.No.55 P&AR
Department, dated 08.04.2010 and as per the judgment of the
Honourable Apex Court rendered in Rajeshkumar Daria Vs
Rajasthan Public Service Commission (2007 (8) SCC 785) and
thereafter consider the petitioners' case for appointment to
the post of Assistant Medical Officer (Siddha) with all service
and monetary benefits.
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3 W.P.(MD)NO.1934 OF 2020
(in both W.Ps.)
For Petitioners : Mr.T.Lajapathi Roy
in W.P.(MD)No.1934 of 2020.
Mr.G.Thalaimutharasu
in W.P.(MD)No.2037 of 2020.
For R-1 & R-2 : Mr.A.K.Manikkam,
Special Government Pleader.
For R-3 : Mr.Veera Kathiravan,
Additional Advocate General,
assisted by
Mr.T.S.Mohamed Mohideen,
Standing Counsel.
For R-4 : Mr.N.Nagendran,
Special Government Pleader.
***
COMMON ORDER
Heard, Mr.T.Lajapathi Roy and
Mr.G.Thalaimutharasu, learned counsel appearing for the writ
petitioners and Mr.Veera Kathiravan, learned Additional
Advocate General, assisted by Mr.T.S.Mohamed Mohideen,
learned Standing Counsel appearing for the third respondent
and Mr.A.K.Manikkam, learned Special Government Pleader
appearing for respondents 1 and 2 and Mr.N.Nagendran,
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4 W.P.(MD)NO.1934 OF 2020
learned Special Government Pleader appearing for the fourth
respondent.
2. The writ petitioners herein applied in response to
the recruitment notification issued by the Medical Services
Recruitment Board (MRB) on 02.08.2017 for the post of
Assistant Medical Officer (Siddha) on temporary basis in the
Tamil Nadu Medical Services. The writ petitioners did not find
place in the final selection list. They belong to Scheduled
Caste category. Their contention is that the reservation policy
was not properly implemented while finalising the selection
list.
3. Counter affidavit and additional counter affidavit
have been filed by the third respondent.
4. A perusal of the same indicates that the
meritorious Scheduled Caste candidates instead of being
appointed against open category vacancies were appointed as
against reserved vacancies meant for Scheduled Caste
category. For instance Dr.S.Magudapathi had secured 79.50
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5 W.P.(MD)NO.1934 OF 2020
marks. A candidate who secured only 72.50 marks had been
appointed against the general turn vacancy. But
Thiru.Magudapathy had been appointed as against reserved
vacancy. Nothing can be more illegal.
5. The Hon'ble Supreme Court of India in the decision
reported in (1995) 5 SCC 173 (Anil Kumar Gupta, Etc. Vs.
State Of Uttar Pradesh And Ors.) had held that the proper
and correct course is to first fill up the O.C. quota on the basis
of merit; then fill up each of the social reservation quotas, i.e.,
S.C., S.T. and B.C. This decision was followed in a subsequent
decision reported in (2007) 8 SCC 785 ( Rajesh Kumar
Daria Vs. Rajasthan Public Service Commission and
Ors.). In this case, social reservation quotas had been filled
up first. Therefore, I have no hesitation to come to the
conclusion that the Scheduled Caste quota was not properly
filled up.
6. Both the writ petitioners have secured 71 marks.
From the materials placed by the respondents, one can note
that 12 out of 15 candidates appointed against the Scheduled
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6 W.P.(MD)NO.1934 OF 2020
Caste vacancies ought to have been appointed against general
vacancies. If the selection list is re-worked, both the writ
petitioners will be figuring at serial Nos.4 and 5 in the
Schedule Caste list. It is seen that one other Scheduled Caste
candidate has secured more marks. Since he had not come
before this court, I am not in a position to grant him relief.
Strictly speaking, 12 Open Category candidates ought not to
have been selected and they have to be shown the door. But
they are not responsible for this situation. They are already
serving the department and hence need not be terminated. It
is not in dispute that there are vacancies available in the post
of Assistant Medical Officer(Siddha). In fact, the third
respondent had already notified the said vacancies and
selection process is presently going on. The writ petitioners
can very well be accommodated against the said vacancies. In
fact such an approach was adopted by a learned Judge of this
Court while disposing of W.P.(MD)No.7110 of 2017 vide
Order dated 25.04.2022 (A.Ponnar V. The Chief Engineer
/ Personnel, Tamil Nadu Generation and Distribution
Corporation Limited (TANGEDCO), 144, Anna Salai,
Chennai – 2 ). The said case pertained to filling up the
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7 W.P.(MD)NO.1934 OF 2020
vacancies in the post of Assistant Engineer (Electrical) in
TANGEDCO. The TANGEDCO had also erroneously applied
the reservation policy. Meritorious Scheduled Caste
candidates instead of being appointed against general
vacancies, were accommodated only against the reserved
vacancies. When an unsuccessful candidate filed the writ
petition, while disposing the writ petition, the following order
was passed:-
“ (1). The prayer of the writ petitioner to
quash the impugned selection list of the first
respondent is rejected.
(2). The first respondent Corporation is
directed to appoint the petitioner to the post of
Assistant Engineer/EEE within a period of 12 weeks
from the date of receipt of a copy of this order. ”
7. The learned Judge instead of disturbing the already
appointed candidates and without quashing the selection list,
directed the TANGEDCO to appoint the writ petitioner to the
post of Assistant Engineer (Electrical). I am inclined to adopt
the very same approach in this case also. Without quashing
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8 W.P.(MD)NO.1934 OF 2020
the impugned selection list, I direct the respondents to
appoint the writ petitioners herein as Assistant Medical
Officers (Siddha) against the existing general vacancies. Such
an appointment order will be issued within a period of eight
weeks from the date of receipt of a copy of this order. These
writ petitions stand allowed on these terms. No costs.
Consequently, connected miscellaneous petitions are closed.
27.09.2022
Index : Yes / No
Internet : Yes/ No
PMU
Note : Issue order copy on 28.09.2022.
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9 W.P.(MD)NO.1934 OF 2020
To:
1. The Principal Secretary,
Health and Family Welfare Department,
Fort St. George, Secretariat,
Chennai – 600 009.
2. The Director of Indian Medicine and Homeopathy,
Arignar Anna Hospital Complex,
Arumbakkam, Chennai.
3. Medical Services Recruitment Board (MRB),
Rep. By its Member Secretary,
7th Floor, DMS Building,
359, Anna Salai, Teynampet,
Chennai – 600 006.
4. The Joint Director of CBI (South),
College Road, Suba Road Avenue,
Thousand Lights,
Chennai – 600 006.
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10 W.P.(MD)NO.1934 OF 2020
G.R.SWAMINATHAN,J.
PMU
W.P.(MD)Nos.1934 & 2037 of 2020
27.09.2022
https://www.mhc.tn.gov.in/judis
