Madras High Court
Dr.P.Palavesakumar vs For Petitioner : ... on 3 February, 2023
W.P.(MD)No.2048 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.02.2023
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P.(MD)No.2048 of 2020
and
W.M.P(MD)Nos.1716, 1717, 1718, 1720 and 1721 of 2020
Dr.P.Palavesakumar ... Petitioner
v.
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.
4.The Joint Director of CBI (South),
College Road, Suba Road Avenue,
Thousand Lights, Chennai – 600 006.
5.C.Mariyappan,
Government Rural Siddha Dispensary,
Periyathanda, Salem. ... Respondents
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W.P.(MD)No.2048 of 2020
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying 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 4th respondent to conduct
investigation in regard to the selection and appointment made to the post of
Assistant Medical Officer (Siddha) and file his respect before this Court 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 08.04.2020 and as per the judgment of the Hon'ble Apex
Court rendered in Rajeshkumar Daria Vs Rajasthan Public Service Commission
(2007 (8) SCC 785) and thereafter consider the petitioner's case for
appointment to the post of Assistant Medical Officer (Siddha) with all service
and monetary benefits.
For Petitioner : Mr.A.D.Ganesamoorthi
For Respondents : Mr.A.K.Manikkam,
Special Government Pleader for R1 & R2.
: Mr.Veera Kathiravan,
Additional Advocate General,
assisted by Mr.T.S.Mohamed Mohideen,
Standing Counsel for R3.
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W.P.(MD)No.2048 of 2020
ORDER
Heard the learned counsel on either side.
2.The writ petitioner is holding MD (Siddha) degree. He belongs to a
Scheduled Caste. He is also differently abled. He applied for the post of
Assistant Medical Officer (Siddha) in response to the notification dated
02.08.2017 issued by Medical Services Recruitment Board, Chennai. He
obtained 57/100 in the written examination. However, he was not selected.
3.Challenging the provisional selection list, the petitioner filed W.P.
(MD)No.21528 of 2017. However, at the time of final hearing of the case, he
restricted his relief. The writ petition was disposed of on 20.08.2019 with a
direction to the respondents to consider his claim subject to the availability of
vacancy. The third respondent rejected the petitioner's request by holding that
the selection was properly done. Questioning the rejection order dated
21.11.2019 as well as the provisional selection list, he filed this writ petition.
4.The respondents 2 and 3 filed counter affidavit and additional counter
affidavit controverting the petitioner's claim. The learned Additional Advocate
General assisted by the Standing counsel for the Board took me through their
contents and submitted that no interference is warranted.
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W.P.(MD)No.2048 of 2020
5.The first issue that calls for consideration is whether the Board
correctly applied the reservation policy. A mere look at the selection list shows
that the meritorious scheduled caste candididates instead of being appointed
against open category vacancies were appointed as against reserved
vacancies. This can be very easily demonstrated. For instance,
Dr.S.Magudapathi had secured 79.50 marks. He was appointed against the
reserved vacancy. A candidate who secured only 72.50 marks has been
appointed against open category vacancy. Nothing can be more illegal. The
selection procedure runs counter to what has been laid down by the Hon'ble
Supreme Court of India in Anil Kumar Gupta V. State of Uttar Pradesh
(1995) 5 SCC 173 and Rajesh Kumar Daria V. RPSC (2007) 8 SCC
785. In the writ petitions (W.P.(MD)Nos.1934 and 2037 of 2020) filed by
Dr.P.Mujeetha Bai and Dr.M.Suganthi, both of whom belong to Scheduled
Caste and who also took part in the very same selection process, I held that
12 out of 15 candidates appointed against reserved vacancies meant for
scheduled castes ought to have been appointed against general vacancies. If
the selection list had been ordered to be revised, 12 open category candidates
would have had to face exit. However, such a course of action was not
adopted for more than one reason. The writ petitioners had already
challenged the selection list but confined their relief to seeking consideration
of their claims subject to availability of vacancies as on 20.08.2019. By the
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time, the writ petitions filed by the said two candidates were taken up for
disposal, more than three years had elapsed. It would have been inequitable
to terminate the services of selected candidates for the mistake committed by
the Board. I therefore directed that the said two candidates can be
accommodated against existing general vacancies.
6.Though the petitioner's case was also taken up along with the
petitions filed by Dr.Mujithabai and Dr.Suganthi, I felt that adopting the same
approach would not have provided any relief to him. The reason was simple.
The total number of posts to be filled up was 101. 18 posts were earmarked
for scheduled caste candidates including SC(A). The petitioner had scored only
57 marks. Even if the entire list is re-worked, the petitioner would still not
have made it. More than 15 candidates belonging to SC category had scored
more than 57 marks. The erroneous application of the social reservation policy
had not caused any prejudice to the writ petitioner.
7.The next question that arises for consideration is whether the
recruiting agency correctly applied the special reservation policy meant for
differently abled candidates. The answer is in the negative. The Board wrongly
applied the special reservation policy also in this case. This is evident from the
following particulars furnished by the Board in their counter affidavit:-
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S.No. Name of the candidate Communal Marks obtained in
Category the Competitive
Examination
01. Dr.Mariappan.C MBC 68.00 Marks
02. Dr.Sumithra S BC 64.00 Marks
03. Dr.Eswari N MBC 59.50 Marks
04. Dr.Balamurugan P BC 59.00 Marks
05. Dr.Ramalingam MBC 58.00 Marks
06. Dr.Palavesakumar P SC 57.00 Marks
07. Dr.Sudha R SC 56.00 Marks
08. Dr.Nithyanantham SS BC 52.50 Marks
What the Board did was to club all the differently abled candidates in one slot.
Since four posts had been earmarked for differently abled candidates, the
Board selected the first four meritorious candidates. But this is not the manner
in which the special reservation policy should have been applied. In
K.R.Shanthi v. State of T.N (2012) 7 MLJ 241, the manner of applying
the principle of reservation was explained as follows :
“14.A perusal of the above judgments would keep at least
two things beyond any pale of doubt. Firstly, the roster is not
vacancy based, but the same is only post based. It identifies the
number of posts earmarked for various categories under the vertical
reservations and posts left behind for open quota as well as special
reservations. Secondly, after so identifying the posts, it should be
calculated as to how many vacancies are to be filled up under
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various categories in the current selection. If once the number of
vacancies earmarked for each category in the current selection is
identified by using the roster, thereafter the roster will have no
further role to play in the matter of selection. After identifying the
number of vacancies earmarked for various categories, the selection
for each category has to be made purely based on merit following
the method detailed below:
First Step:
(i) As against the number of vacancies identified for open quota,
irrespective of caste, sex, physically challenged, etc. everyone
should be allowed to compete based on merits.
(ii) The meritorious candidates should be first selected as against
the above vacancies under open quota.
Second Step:
(iii) After completing the first step, moving on to the vertical
reservation categories, selection has to be made for each category
from amongst the remaining candidates belonging to the particular
reserved category (vertical) based on merits.
Third Step:
(iv) After completing the second step, horizontal reservation which
cuts across the vertical reservation has to be verified as to whether
the required number of candidates who are otherwise entitled to be
appointed under the horizontal reservation have been selected
under the vertical reservation.
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(v) On such verification, if it is found that sufficient number of
candidates to satisfy the special reservation (horizontal reservation)
have not been selected, then required corresponding number of
special reservation candidates shall have to be taken and
adjusted/accommodated as against social reservation categories by
deleting the corresponding number of candidates therefrom.
(vi) Even while filling up the vacancies in the vertical reservation, if,
sufficient number of candidates falling under the horizontal
reservation have been appointed, then, there will be no more
appointment exclusively under the horizontal reservation.
Caution:
(vii) At any rate, the candidates who were selected as against a
post under open quota shall not be adjusted against the reserved
quota under vertical reservations.”
K.R.Shanthi was approved by the Hon'ble Apex Court in the decision
reported in (2021) 4 SCC 686 (State of T.N. v. K.Shobana). In Saurav
Yadhav v. State of U.P (2021) 4 SCC 542, it was noted that horizontal
reservations are interlocking reservations and as a sequel, they had to be
calculated concurrently and along with the vertical or social reservation
quotas.
8.The recruiting agency ought to have applied the 4% horizontal
reservation policy meant for differently abled candidates against each vertical
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category. 4 out of 101 posts had been earmarked for being filled up under
this category. It is seen that out of 8 differently abled candidates, 3 of them
belonged to MBC category, 3 of them belonged to BC category and only 2 of
them belonged to SC category. The petitioner scored more marks than the
other SC (PH) candidate Dr.Sudha. Thus, the petitioner was the meritorious
differently abled candidate under the SC category. If K.R.Shanthi had been
applied, the selected candidate figuring last in the SC category should have
made way for the writ petitioner.
9.The respondents 1 to 3 raised quite a few objections for granting
relief to the petitioner. The first contention was that as per the communal
roster as applicable to SC (PH) candidates, the turn was not meant for those
suffering from loco motor disability. To consider this, the relevant statutory
provisions must be examined. Section 34 of the Rights of Persons with
Disabilities Act, 2016 is as follows:-
“34.Reservation.—(1) Every appropriate Government
shall appoint in every Government establishment, not less than
four per cent. of the total number of vacancies in the cadre
strength in each group of posts meant to be filled with persons
with benchmark disabilities of which, one per cent. each shall be
reserved for persons with benchmark disabilities under clauses
(a), (b) and (c) and one per cent. for persons with benchmark
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disabilities under clauses (d) and (e), namely:—
(a) blindness and low vision;
(b) deaf and hard of hearing;
(c) locomotor disability including cerebral palsy, leprosy
cured, dwarfism, acid attack victims and muscular dystrophy;
(d) autism, intellectual disability, specific learning disability
and mental illness;
(e) multiple disabilities from amongst persons under
clauses (a) to (d) including deaf-blindness in the posts identified
for each disabilities:
Provided that the reservation in promotion shall be in accordance
with such instructions as are issued by the appropriate
Government from time to time: Provided further that the
appropriate Government, in consultation with the Chief
Commissioner or the State Commissioner, as the case may be,
may, having regard to the type of work carried out in any
Government establishment, by notification and subject to such
conditions, if any, as may be specified in such notifications
exempt any Government establishment from the provisions of this
section.
(2)Where in any recruitment year any vacancy cannot be
filled up due to non-availability of a suitable person with
benchmark disability or for any other sufficient reasons, such
vacancy shall be carried forward in the succeeding recruitment
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year and if in the succeeding recruitment year also suitable
person with benchmark disability is not available, it may first be
filled by interchange among the five categories and only when
there is no person with disability available for the post in that
year, the employer shall fill up the vacancy by appointment of a
person, other than a person with disability:
Provided that if the nature of vacancies in an establishment is
such that a given category of person cannot be employed, the
vacancies may be interchanged among the five categories with
the prior approval of the appropriate Government.
(3)The appropriate Government may, by notification,
provide for such relaxation of upper age limit for employment of
persons with benchmark disability, as it thinks fit.
Section 27 of the Tamil Nadu Government Servants (Conditions of Service)
Act, 2016 reads as under:-
“27.Reservation of Appointment._ Where the special
rules lay down that the principle of reservation of appointments
shall apply to any service, class or category, selection for
appointment thereto shall be made on the following basis:—
(a) The unit of selection for appointment, for the purpose
of this section, shall be two hundred, of which thirty six shall be
reserved for the Scheduled Castes including six offered to
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Arunthathiyars on preferential basis amongst the Scheduled
Castes, two for the Scheduled Tribes, fifty three for the
Backward Classes (other than Backward Class Muslims, Most
Backward Classes and Denotified Communities), seven for the
Backward Class Muslims, forty for the Most Backward Classes
and the Denotified Communities and sixty two shall be filled on
the basis of merit: Provided that if even after filling up of the
required appointments or posts reserved for Arunthathiyars
amongst the Scheduled Castes in Schedule-V, if more number
of qualified Arunthathiyars are available, such excess number of
candidates of Arunthathiyars shall be entitled to compete with
the other Scheduled Castes in the inter-se-merit among them
and if any appointment or post reserved for Arunthathiyars
remain unfilled for want of adequate number of qualified
candidates, it shall be filled up by Scheduled Castes other than
Arunthathiyars.
[(b) Out of the total number of appointments referred to in
clause (a), in the case of appointment made by direct
recruitment, one per cent each shall be reserved for persons
with benchmark disabilities under categories (i), (ii) and (iii)
and one per cent for persons with benchmark disabilities under
categories (iv) and (v) both taken together, namely:-
(i) blindness and low vision;
(ii) deaf and hard of hearing;
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(iii) locomotor disability including cerebral palsy, leprosy
cured, dwarfism, acid attack victims and muscular dystrophy;
(iv)autism, intellectual disability, specific learning
disability and mental
(v) multiple disabilities from amongst persons under
categories (i) to (iv) including deaf -blindness in the posts
identified for each disabilities;
and the appointment shall be made in the turn and in the order
of rotation specified in Schedule–VI;
(bb) Reservation for persons with benchmark disabilities
shall be made in respect of posts identified by the Government
in each department, under section 33 of the Rights of Persons
with Disabilities Act, 2016;
(bbb) Where in any recruitment year any vacancy cannot
be filled up due to non-availability of a suitable person with
benchmark disability or for any other sufficient reasons, such
vacancy shall be carried forward in the succeeding recruitment
year and if in the succeeding recruitment year also suitable
person with benchmark disability is not available, it may first be
filled by interchange among the five categories and only when
there is no person with disability available for the post in that
year, such vacancy shall be filled up by appointment of a
person, other than a person with disability:”
Schedule VI contains tables indicating the turns vis-a-vis rotation reserved for
the persons with particular bench mark disabilities. The learned standing
counsel for the Board contended that the turn earmarked during the present
rotation is not meant for a person with loco motor disability. This argument is
unacceptable. Section 34 of Central Act 49 of 2016 must be understood and
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W.P.(MD)No.2048 of 2020
applied in the light of Section 33 of the Act. Section 27 (bb) of Tamil Nadu Act
14 of 2016 refers to Section 33 of the 2016 Central Act. If a particular post
has not been identified as can be held by a person with a particular disability,
Schedule VI of the Tamil Nadu Act will become inapplicable to the said
category. It is true that out of the five categories of disability, one percent
each has been reserved for categories (i), (ii) and (iii) and one percent for
categories (iv) and (v) both taken together. If for the post in question,
category (iii) alone has been identified as suitable, that does not mean PH
reservation will be reduced to one percent. The statutory mandate is that 4%
horizontal reservation should be made for differently abled candidates. For
the post of Assistant Medical Officer (Siddha), candidates having loco motor
disability alone appear to be suitable. The other categories appear to have
been left out. G.O (Ms) No.13 Welfare of Differently Abled Persons
Department dated 02.03.2016 permits a person with disability in one leg to be
suitable. The petitioner has disability in lower part of his left limb. He
therefore fulfils the statutory requirements.
10.In fact, the proviso to Section 34 (2) is to that effect. It states that if
the nature of vacancies in an establishment is such that a given category of
persons cannot be employed, the vacancies may be interchanged among the
five categories. But a qualification has been added. It talks about the prior
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approval of the appropriate government. I take judicial notice of the fact that
even though Section 33 and Section 34 talk about identification of posts and
issuance of instructions for reservation in promotion, various governments
have not been nimble-footed. The Hon'ble Supreme Court in more than one
case had prodded them and nudged them by imposing time-limits. Though
the proviso employs the expression “prior approval”, it must be understood as
directory under certain circumstances. There are five categories of
disabilities. For the post of Doctor, the (iii) category alone has been identified
as suitable. My attention has not been drawn to any approval given by the
government in this regard. If the aforesaid requirement is taken as
mandatory, then, the 4% reservation will tickle down to one percent. That
would amount to defeating the very object of the statute. That is why, I
reject the argument of the learned standing counsel that a candidate having
loco motor disability cannot be appointed against the present turn.
11.The learned standing counsel also argued that since the petitioner
had scored only 57 marks, he cannot be selected. He probably had Article 335
of the Constitution of India in mind. Article 335 originally read as follows :
“335.Claims of Scheduled Castes and Scheduled Tribes
to services and posts.-The claims of the members of the
Scheduled Castes and the Scheduled Tribes shall be taken
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into consideration, consistently with the maintenance of
efficiency of administration, in the making of appointments to
services and posts in connection with the affairs of the Union
or of a State.”
But vide 82nd Amendment, the following proviso was added :
“Provided that nothing in this article shall prevent in
making of any provision in favour of the members of the
Scheduled Castes and the Scheduled Tribes for relaxation in
qualifying marks in any examination or lowering the standards
of evaluation, for reservation in matters or promotion to any
class or classes of services or posts in connection with the
affairs of the Union or of a State.”
I hold that the authority is not obliged to keep lowering the standards of
evaluation or relax the qualifying marks till they find a candidate. Only in
water scarce regions, the bore well is deepened till it reaches the water table.
Such an approach need not always be adopted to the point of sacrificing the
merit principle. The proviso cannot be applied to the extent of obliterating the
main provision. However, in the case on hand, a differently abled BC candidate
who scored 59 marks has been selected. I therefore hold that the petitioner
who belongs to differently abled SC category having scored 57 marks should
also be deemed to have passed muster.
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12.Now comes what I may colloquially call as anti-climax. The
Government of Tamil nadu is following 200 point roster (G.O Ms.No.55 P&AR
Department dated 08.04.2010). G.O Ms.No.21 Welfare of Differently Abled
Persons Department dated 30.05.2017 was issued so as to bring the
provisions of Tamil nadu Act 14 of 2016 in line with the provisions of Central
Act 49 of 2016. Schedule VI deals with reservation for persons with bench
mark disabilities. The Schedule begins thus “the following turns indicated
against the rotation shall be reserved for persons with bench mark
disabilities”. There are several vertical columns : 1)General Turn 2)General
Turn Women 3)Backward Classes (other than BC Muslims) 4)Backward Classes
(other than BC Muslims) Women 5)Backward Classes Muslims 6)Backward
Classes Muslims Women 7)Most Backward Classes and Denotified
Communities 8) Most Backward Classes and Denotified Communities Women
9)Scheduled Castes 10)Scheduled Castes Womenn 11)Scheduled Castes
(Arunthathiyars on preferential basis) 12) Scheduled Castes (Arunthathiyars on
preferential basis) Women 13)Scheduled Tribes 14)Scheduled Tribes Women.
Rotation and turns have been mentioned for each social reservation category
and for each disability. I gratefully acknowledge the assistance rendered by
Shri.R.Parthiban, P.A (G) to District Collector, Madurai and Shri.A.Ramanathan,
Assistant Director of Employment, Madurai in this regard. They demonstrated
as to how the 200 point roster is worked in the first rotation. The reservation
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pans out as follows :
“Point 25 – blind, Point 37 – Loco motor, Point 71-Deaf and, Point 97 –
Autism, Point 124 – Blind, Point 136 – Loco motor, Point 167-Deaf and, &
Point 197-Autism.”
A simple arithmetic would show that the 4% reservation applicable to
differently abled candidates is scientifically and perfectly fulfilled. Of course,
the turns would vary for each rotation. I however face one conceptual
difficulty. It is not in sync with what has been laid down by the Hon'ble
Supreme Court. K.R.Shanthi “steps” are not marching in tune with the 200
point roster. K.R.Shanthi has been approved by the Hon'ble Apex Court also.
As per K.R.Shanthi, to fulfil the needs of horizontal reservation, there might be
elimination of the candidates figuring last in the list. If 200 point roster is
applied as such, there is no need for elimination of the last candidate in the
particular social category list. Because the turn is reserved exclusively for the
differently abled candidate of the prescribed type. Secondly, K.R.Shanthi in
ringing terms declares that the open category vacancies must be filled up
purely on merit irrespective of the category to which candidates may belong.
But in the 200 point roster, point-25 comes under “General Turn” category. It
means that the post falling against the said vacancy (point-25) though meant
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to be filled purely on merit, stands reserved for a differently abled candidate
coming under blind category.
13.Though first rotation fulfills 4% requirement, not all rotations yield a
similar result. If the 200 point roster as framed vide G.O Ms. No.21 dated
30.05.2017 is strictly applied, there is every possibility that during certain
recruitment drives, even though differently abled candidates are available,
they may not be selected because their turn would not have arrived. These
are the practical consequences that may ensue. If K.R.Shanthi is applied,
then, the statutory object would be fulfilled. When a formula approved and
upheld by the Hon'ble Supreme Court is holding the field, the 200 point roster
cannot be allowed to be applied in a contra manner. Though the norms
issued by the government contemplate that every department must have a
roster register, the official respondents were not abled to answer my question
as to what was the present rotation. Since Section 33 of the Central Act
contemplates identification of posts, the roster will have to be tailor made with
reference to the particular post as far as the differently abled candidates are
concerned.
14.Citing the aforesaid conceptual difficulties, I do not want to deny
relief to the petitioner. The approach adopted for Dr.Mujithabai and
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Dr.Suganthi can be adopted for the petitioner also. It is true that many SC
candidates have scored above the petitioner but they have not come to the
court. There is a saying in Tamil “Only the crying child gets milk”. Since the
petitioner alone is before me, in view of my finding that as many as 12
meritorious SC candidates ought to have been appointed against OC
vacancies, I direct the respondents 1 to 3 to appoint the petitioner as
Assistant Medical Officer (Siddha) against the existing general vacancy within
a period of four weeks from the date of receipt of copy of this order. The
order impugned in the writ petition is set aside.
15.The writ petition is allowed accordingly. No costs. Connected
Consequently, connected miscellaneous petitions are closed.
03.02.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
SKM
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W.P.(MD)No.2048 of 2020
To
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.The Member Secretary, Medical Services Recruitment Board (MRB),
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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W.P.(MD)No.2048 of 2020
G.R.SWAMINATHAN, J.
SKM
W.P.(MD)No.2048 of 2020
03.02.2023
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