Madras High Court
The Member Secretary vs C.Thirumavalavan on 19 June, 2023
W.A(MD)No.437 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 19.06.2023
CORAM :
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
W.A(MD)No.437 of 2023
and
C.M.P(MD)No.4664 of 2023
1. The Member Secretary,
Tamilnadu Uniformed Services Recruitment Board,
Old Commissioner of Police Office Campus,
Pantheon Road, Egmore,
Chennai 600 008.
2. The Chairman / Sub Committee,
Tamilnadu Uniformed Services Recruitment Board,
Egmore, Chennai-8.
3. The Chief Director,
Directorate of Tamil Nadu Fire and
Rescue Service Department,
No.17, Rukmani Lakshmipathi Salai,
Egmore, Chennai-08. ... Appellants
vs.
C.Thirumavalavan ... Respondent
PRAYER : Appeal filed under Clause 15 of Letters Patent,
against the order passed in W.P(MD)No.22667 of 2022 dated
13.10.2022.
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W.A(MD)No.437 of 2023
For Appellants : Mr.Veera Kathiravan
Additional Advocate General
For Respondent : Mr.M.Rajarajan
JUDGMENT
(Judgment of the Court was made by R.SUBRAMANIAN, J.)
The State is on appeal aggrieved by the order made in
W.P(MD)No.22667 of 2022 dated 13.10.2022, wherein, the Writ
Court, after quashing the order of the 1st appellant, disqualifying the
petitioner in terms of Sub Rule 3 in Rule 5B of the Tamil Nadu Fire
Subordinate Services, issued a positive direction directing issuance
of appointment order to the petitioner. The process for recruitment
of Constables Grade - II in the Tamil Nadu Uniformed Services began
on 17.09.2020. Rule 5 B as it stood on the date of the issuance of
the notification, is as follows:-
“5 B. Verification of character and antecedents.._
(1) The list of candidates who are declared fit during
the medical examination shall be sent by the Tamil Nadu
Unformed Services Recruitment Board along with their
temporary and permanent addresses to the Director General
of Police, Tamil Nadu for verification of their character and
antecedents. A police verification report in respect of each
such candidate shall be sent to the Tamil Nadu Uniformed
Services Recruitment Board, indicating therein the follows:-
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W.A(MD)No.437 of 2023
(i) whether he has more than one wife living.
(ii) whether his character and antecedents are such as to
qualify him for the service; and
(iii) the details of criminal cases, if any, in which he is
involved.
(2) A candidate who has more than one wife living or
who has convicted in any criminal case or in respect of
whom a charge sheet is pending in a Court of law or against
whom a criminal case is pending investigation shall be liable
for disqualification.”
2. As the recruitment process was on, a change in Sub Rule
3 introduced by way of an amendment on 14.09.2021, the said Sub
Rule 3 Reads as follows:-
''(3) No person shall be eligible for appointment to the
Service by direct recruitment unless he satisfies the
appointing authority that he was not involved in any
criminal case before police verification.
Explanation (1): A person who is acquitted or discharged on
the benefit of doubt or due to the fact that the complainant
turned hostile shall be treated as a person involved in a
criminal case.
Explanation (2): A person involved in a criminal case at the
time of police verification and the case is yet to be disposed
of and subsequently ended in honourable acquittal or
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W.A(MD)No.437 of 2023
treated as mistake of fact shall be treated as not involved in
a criminal case and he can claim right for appointment only
by participating in the next recruitment.”
3. After the recruitment process was over, the 1st appellant
passed orders disqualifying the petitioner on the ground that he
stood disqualified in terms of Sub-Rule 3 of Rule 5 B of the Tamil
Nadu Fire Subordinate Service Rules. The petitioner in the writ
petition challenged the said order.
4. The main basis of challenge was that Sub Rule 3, which
was introduced after the selection had began, could not have been
applied to the petitioner and such application would amount to
changing rules of the games after the game had begun. The Writ
Court accepted the said contention and while setting aside the order
impugned in the writ petition, a positive direction was issued by the
Writ Court directing issuance of appointment order to the petitioner.
5. We have heard Mr.Veerakathiravan, learned Additional
Advocate General appearing for the appellants and Mr.M.Rajarajan,
learned counsel appearing for all the respondent.
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W.A(MD)No.437 of 2023
6. While Mr.Veera kathiravan, learned Additional Advocate
General would justify the orders passed by the authorities,
contending that the Writ Court ought not to have issued a positive
direction for issuing appointment order, by pointing out that even if
the Sub Rule 3 is not taken into account still the appointing authority
had power to verify antecedents under Rule 5 B(1) as well as (2).
Therefore, the Writ Court ought to have given an opportunity to the
employer to consider the character of the person, who is to be
appointed to the Uniformed Services.
7. Mr.Rajarajan, learned counsel appearing for the
respondent would submit that the order impugned in the writ
petition having been passed only based on Sub Rule 3, cannot be
sustained.
8. We are in agreement with the contention of the learned
counsel for the respondent that the order impugned in the writ
petition having been passed only based on Sub-Rule 3, cannot be
sustained, since the Sub Rule 3 was introduced after the
commencement of the selection process. However, we cannot, at the
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W.A(MD)No.437 of 2023
same time, preclude the employer from looking into antecedents of
the persons, who are to be employed in the Uniformed Services in
terms of Rule 5 B (1) and (2). Therefore, while affirming the order in
the writ petition, we set aside the positive direction issued by the
Writ Court to issue appointment order to the petitioner. The
Appointing Authority, namely, the Director of Fire and Rescue
Services will consider the suitability of the petitioner in terms of Rule
5 B (1) (2) and take appropriate decision. Needless to state that the
authority will examine the issue with an open mind and without
being influenced by any of the observations made either by the Writ
Court or by us in this Judgment. The authority will pass the orders
within a period of 12 weeks from the date of receipt of a copy of this
order.
9. The Writ Appeal is disposed of with the above directions.
No costs. Consequently, connected miscellaneous petition is closed.
(R.SUBRAMANIAN, J.) & (L.VICTORIA GOWRI, J.)
19.06.2023
Index : Yes / No
Neutral Citation : Yes / No
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W.A(MD)No.437 of 2023
bala
To
1. The Member Secretary,
Tamilnadu Uniformed Services Recruitment Board,
Old Commissioner of Police Office Campus,
Pantheon Road, Egmore,
Chennai 600 008.
2. The Chairman / Sub Committee,
Tamilnadu Uniformed Services Recruitment Board,
Egmore, Chennai-8.
3. The Chief Director,
Directorate of Tamil Nadu Fire and
Rescue Service Department,
No.17, Rukmani Lakshmipathi Salai,
Egmore, Chennai-08.
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W.A(MD)No.437 of 2023
R.SUBRAMANIAN, J.
and
L.VICTORIA GOWRI, J.
bala
JUDGMENT MADE IN
W.A(MD)No.437 of 2023
DATED : 19.06.2023
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