Madras High Court
Tamil Nadu Public Service ... vs S.Anitha on 19 October, 2023
2023/MHC/4829
W.A.(MD) Nos.1950, 1951 & 1952 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 19.10.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
and
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
W.A.(MD) Nos.1950, 1951 & 1952 of 2021
and
C.M.P.(MD) Nos.8741, 8742 & 8743 of 2021
W.A.(MD) No.1950 of 2021:
Tamil Nadu Public Service Commission
rep.by its Secretary
Park Town, VOC Nagar
Chennai-600 003 ... Appellant
-vs-
1.S.Anitha
2.The Principal Secretary /
Commissioner of Archaeology
Department of Archaeology
Tamil Valarchi Valagam
Tamizh Salai, Egmore, Chennai-8 ... Respondents
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https://www.mhc.tn.gov.in/judis
W.A.(MD) Nos.1950, 1951 & 1952 of 2021
Writ Appeal filed under Clause 15 of Letters Patent to set aside the
order, dated 07.07.2021, passed in W.P.(MD) No.19705 of 2020, on the file of
this Court.
For Appellant : Mr.V.Panneerselvam
For Respondents : Mr.T.Aswin Rajasimman
for T.Lajapathi Roy & Associates for R1
Mr.T.Amjadkhan
Government Advocate for R2
W.A.(MD) No.1951 of 2021:
Tamil Nadu Public Service Commission
rep.by its Secretary
Park Town, VOC Nagar
Chennai-600 003 ... Appellant
-vs-
1.D.Ananthy
2.The Principal Secretary /
Commissioner of Archaeology
Department of Archaeology
Tamil Valarchi Valagam
Tamizh Salai, Egmore, Chennai-8 ... Respondents
Writ Appeal filed under Clause 15 of Letters Patent to set aside the
order, dated 07.07.2021, passed in W.P.(MD) No.19702 of 2020, on the file of
this Court.
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https://www.mhc.tn.gov.in/judis
W.A.(MD) Nos.1950, 1951 & 1952 of 2021
For Appellant : Mr.V.Panneerselvam
For Respondents : Mr.T.Aswin Rajasimman
for T.Lajapathi Roy & Associates for R1
Mr.T.Amjadkhan
Government Advocate for R2
W.A.(MD) No.1952 of 2021:
Tamil Nadu Public Service Commission
rep.by its Secretary
Park Town, VOC Nagar
Chennai-600 003 ... Appellant
-vs-
1.M.Shanmugavalli
2.The Principal Secretary /
Commissioner of Archaeology
Department of Archaeology
Tamil Valarchi Valagam
Tamizh Salai, Egmore, Chennai-8 ... Respondents
Writ Appeal filed under Clause 15 of Letters Patent to set aside the
order, dated 07.07.2021, passed in W.P.(MD) No.19703 of 2020, on the file of
this Court.
For Appellant : Mr.V.Panneerselvam
For Respondents : Mr.T.Aswin Rajasimman
for T.Lajapathi Roy & Associates for R1
Mr.T.Amjadkhan
Government Advocate for R2
_______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) Nos.1950, 1951 & 1952 of 2021
COMMON JUDGMENT
[Judgment of the Court was made by S.M.SUBRAMANIAM, J.]
These writ appeals are directed against the common order of the
learned Single Judge, dated 07.07.2021, passed in W.P.(MD) Nos.19705,
19702 & 19703 of 2020 respectively.
2. The issue mainly raised in all these writ appeals is that the
candidates, who indicated the medium of instruction as “Tamil” in the
application, should be considered only under the Persons Studied in Tamil
Medium (PSTM) Quota or under the General Pool and Reserved Categories.
3. Learned counsel appearing for the appellant – Tamil Nadu
Public Service Commission mainly contended that the first respondents / writ
petitioners have stated the medium of instruction as “Tamil” in the application
and therefore, their cases were considered under PSTM Quota. However,
subsequently, they failed to produce the PSTM Certificate for the purpose of
considering their case under the said quota. Thus, the appellant has rejected
their candidature and therefore, there is no infirmity in rejecting the case of
the first respondents.
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W.A.(MD) Nos.1950, 1951 & 1952 of 2021
4. It is further contended that the learned Single Judge has not
considered the instructions given by the appellant to the candidates. The
instructions clearly indicate that PSTM Certificate is to be produced along with
the application, which the candidates in the present case failed to do so.
5. In support of his contentions, learned counsel appearing for the
appellant relied on the Judgment of the Division Bench of this Court dated
11.03.2020 in W.A.No.4318 of 2019 [A.Prabu vs. Tamil Nadu Public Service
Commission].
6. We have gone through the said Judgment and found that it was
a case of suppression of material facts, which was considered by the Division
Bench of this Court and thus, the facts in the said case are different and
hence, the said decision is of no avail to the appellant in the present case for
the purpose of considering their ground.
7. As far as the Judgment of the Honourable Supreme Court,
dated 28.08.2019 in Civil Appeal No.6669 of 2019 [The State of Tamil Nadu
and others vs. G.Hemalathaa and another] relied on by the learned
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W.A.(MD) Nos.1950, 1951 & 1952 of 2021
counsel for the appellant is concerned, the said case is also factually
distinguishable and unconnected with the facts of the present case. Thus, we
are not inclined to rely on the said decision. In the said case, the issue
relating to underlining the answer sheet was considered by the Apex Court.
8. Per contra, learned counsel appearing for the first
respondents / writ petitioners relied on the Judgment of the Division Bench of
this Court, dated 23.01.2019 in W.A.No.424 of 2018 [M.Silamparasan vs.
The Secretary], wherein the very same issue was considered by the Division
Bench. The relevant portion of the said Judgment reads as under:
“...Learned single Judge, has not considered the
issue as to whether, if a candidate has made a claim,
under PSTM quota, and if a certificate to such preferential
claim is not submitted, whether the said candidate can be
considered for selection against the seats earmarked for
MBC quota, or in general category? Our answer to the
above issue is that the candidate who is otherwise
qualified, should be considered, against the seats
earmarked for MBC, the category to which the candidate
belongs or in general category.”
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W.A.(MD) Nos.1950, 1951 & 1952 of 2021
9. We have considered the facts of the present case independently.
The first respondents / candidates, in their online applications, have stated
that they acquired educational qualifications through Tamil medium. They
have mentioned so in their applications. The column provided in the
application issued by the Tamil Nadu Public Service Commission stipulates
that the candidates should state the medium of instructions. However, there
is no column for providing the choice of the candidates for the purpose of
availing the benefit under PSTM Quota or otherwise. In the absence of any
such column seeking the choice of the candidates for availing the benefit
under PSTM Quota, mere mentioning of the medium of instructions cannot be
a ground to draw an inference that the candidates have submitted their
applications only under the PSTM Quota. After receiving the applications from
the candidates, Tamil Nadu Public Service Commission cannot turn around
and convert the applications only for the purpose of considering such
candidates under the PSTM Quota. Those candidates in the event of not
producing PSTM Certificates, they must be provided an opportunity under the
General Pool or the Reserved Category, which they belong. Thus, the rejection
of the applications of the first respondents / candidates in the present case
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W.A.(MD) Nos.1950, 1951 & 1952 of 2021
has resulted in an inequality and therefore, equal opportunity in public
employment has been denied to those candidates. Mere information given by
the candidates about the medium of instruction would not disentitle them
from availing the benefit under the General Quota or the Reserved Category /
Quota in the process of selection. Equal opportunity in public employment
being a constitutional mandate, the rejection of applications in the present
case has resulted in an unconstitutionality and infringed the rights of the first
respondents / candidates. The learned Single Judge in the impugned order
has relied on the findings of this Court made in W.P.No.5812 of 2020, dated
07.07.2021, [M.Nisha vs. The Secretary], wherein the facts are falling on the
same line and akin to that of the Division Bench Judgment of this Court in the
case of Silambarasan referred supra.
10. The learned Single Judge had gone one step further and
directed the appellant to appoint the first respondents in the post of
Archaeological Officer, which in our opinion is unnecessary. Therefore, we are
inclined to interfere only with the portion of the order issuing positive direction
to the appellant to appoint the first respondents in the post of Archaeological
officer.
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W.A.(MD) Nos.1950, 1951 & 1952 of 2021
11. Mere selection would not confer any right of appointment.
The power of appointment vests with the employer concerned. The Tamil
Nadu Public Service Commission is the recruiting agency. The flaw identified
in the selection process undertaken by the Tamil Nadu Public Service
Commission alone is to be considered in the present case. The question of
appointment would arise only after the selection process. Even after revising
the selection process, it is to be looked into whether the candidates are falling
within the zone of consideration or not. When these factors are yet to be
considered, issuing a direction to appoint the candidates would be
unnecessary and the same would further result in discrimination in respect of
the other candidates, who are all longing to secure public employment under
the constitutional schemes.
12. In view of the facts and circumstances, the appellant is
directed to consider the case of the first respondents under the General Pool
or under the Reserved Category as applicable to them and accordingly re-do
the exercise of selection process and communicate the decision taken to the
first respondents, within a period of twelve weeks from the date of receipt of a
copy of this Judgment.
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https://www.mhc.tn.gov.in/judis
W.A.(MD) Nos.1950, 1951 & 1952 of 2021
13. Thus, the portion of the impugned order directing the
respondents in the writ proceedings to appoint the writ petitioners /
candidates as Archaeological Officers alone is set aside.
14. The writ appeals are partly allowed in the above terms. No
costs. Consequently, connected miscellaneous petitions are closed.
[S.M.S., J.] [V.L.N., J.]
19.10.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
krk
To:
The Principal Secretary /
Commissioner of Archaeology,
Department of Archaeology,
Tamil Valarchi Valagam,
Tamizh Salai, Egmore, Chennai-8.
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https://www.mhc.tn.gov.in/judis
W.A.(MD) Nos.1950, 1951 & 1952 of 2021
S.M.SUBRAMANIAM, J.
and
V.LAKSHMINARAYANAN, J.
krk
W.A.(MD) Nos.1950, 1951 & 1952 of
and
C.M.P.(MD) Nos.8741, 8742 & 8743 of
19.10.2023
_______________
https://www.mhc.tn.gov.in/judis
