Madras High Court

Y.Sudharsana Kumar vs The Registrar General on 1 August, 2024

Author: S.M.Subramaniam

Bench: S.M.Subramaniam

                                                                         W.P.No.4396 of 2024



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED: 01.08.2024

                                                    CORAM :

                                  THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
                                                     AND
                                   THE HONOURABLE MR.JUSTICE C.KUMARAPPAN

                                              W.P.No.4396 of 2024

                     Y.Sudharsana Kumar                             ..     Petitioner

                                                      Vs.
                     1. The Registrar General
                        High Court of Madras
                        Parrys Corner, Chennai – 600 104.

                     2. The State of Tamil Nadu
                        Rep. by its Principal Secretary to Government (FAC)
                        Department of Welfare of Differently Abled Persons
                        No.5, Kamarajar Salai, Lady Wellington College Campus
                        Chennai – 600 005.

                     3. The Secretary
                        Tamil Nadu Public Service Commission
                        TNPSC Road, V.O.C. Nagar, Park Town
                        Chennai – 600 003.                          ..     Respondents

                     Prayer: Petition filed under Article 226 of the Constitution of India,
                     seeking for a writ of certiorarified mandamus, calling for the records
                     pertaining to notification No.12B/2023 dated 06.10.2023, issued by
                     the third respondent and to quash the same as contrary to law,
                     illegal, and arbitrary and consequentially direct the third respondent
                     to appoint the petitioner to the cadre of Civil Judge, as per the
                     Notification No.12, dated 01.06.2023 in strict compliance of
                     G.O.(Ms).No.21,      dated   30.05.2017   issued    by   the   second
                     respondent.
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                     Page 1 of 14
                                                                          W.P.No.4396 of 2024




                                  For the Petitioner    :   Mr.P.V.Balasubramaniam
                                                            Senior Counsel
                                                            for M/s.BFS Legal

                                  For the Respondents   :   Mr.B.Vijay
                                                            for R1

                                                            Mr.S.John J. Rajasingh
                                                            Additional Government Pleader
                                                            for R2

                                                          Mr.R.Bharanidharan
                                                          Standing Counsel
                                                          for R3
                                                      ORDER

(Order of the Court was made by S.M.SUBRAMANIAM, J.) The recruitment Notification No.12/2023 dated 01.06.2023

was issued by the Tamil Nadu Public Service Commission (in short,

“TNPSC”) for direct recruitment to the post of Civil Judge in Tamil

Nadu State Judicial Services. 245 vacancies were notified, out of

which, 92 vacancies were earmarked as carried forward vacancies

by Notification No. 12B/2023 dated 06.10.2023 (impugned).

2. The corrigendum to notification dated 01.06.2023 was

issued. Certain amendments were made to carry forward the

vacancies in order to ensure that 200 point roster has been rightly

applied to select the candidates on merits. The present writ petition

is instituted challenging the corrigendum to notification No.12/2023

dated 06.10.2023.

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3.1. The learned Senior Counsel, Mr.P.V.Balasubramaniam,

would contend that the mandatory requirement stipulated under

Section 34(2) of the Rights of Persons with Disabilities Act, 2016

(for brevity, hereinafter referred to as “the Act of 2016”) has not

been fulfilled and therefore, the corrigendum impugned is directly

offending the right of opportunity to be provided to the Differently-

Abled persons. 4% reservation is contemplated under Section 34(1)

of the Act of 2016, however, on calculation, the said reservation has

not been complied with.

3.2. The learned Senior counsel would urge by stating that

the writ petitioner scored 242.500 marks in the examination and in

the event of allotting one post to the disabled persons, he will be

accommodated. In other words, the petitioner stands as the next

candidate to the last candidate selected under the special category

of disabled. Thus, the petitioner has chosen to file the writ petition,

challenging the corrigendum issued on 06.10.2013.

3.3. The learned Senior Counsel relied on the judgment of the

Supreme Court of India, in the case of DR (Major) Meeta Sahai

vs. State of Bihar and Ors.1, wherein, the Apex Court has made

1 (2019) 20 SCC 17 https://www.mhc.tn.gov.in/judis

an observation that the principle, insofar as the candidate by

agreeing to participate in the selection process, only accepts the

prescribed procedure and not the illegality in it. When there is

illegality in the selection procedure, then there is no impediment to

challenge the same, even post-selection process. Thus, the present

writ petition is to be entertained.

3.4. By referring to the case in the State of Tamil Nadu

and Ors. vs. K.Shobana and Ors.2, Mr.P.V.Balasubramaniam,

learned Senior Counsel, relied on the three steps provided in

paragraph 19 of the said judgment. In the event of complying these

principles, the petitioner will be getting a chance to be

accommodated in the selection list.

4.1. Mr.R.Bharanidharan, learned Standing Counsel appearing

on behalf of the TNPSC and Mr.B.Vijay, learned counsel appearing

on behalf of the High Court of Madras, would oppose by stating that

the present writ petition is not entertainable in view of the fact that

the corrigendum to notification issued on 06.10.2023 is under

challenge in the present writ petition; the writ petitioner

participated in the process of selection; the marks were declared

2 (2021) 4 SCC 686 https://www.mhc.tn.gov.in/judis

and the selection list was published; Now, the finalized selection list

is in the process of issuance of appointment orders. At this stage,

the case of the petitioner, challenging the corrigendum to the

notification, need not be considered by this Court.

4.2. Regarding the application of reservation of the Special

category for the Differently-Abled persons, the respective learned

counsels would submit that the 200 point roster has been followed.

Therefore, the application of 4% reservation, may vary from

recruitment to recruitment and ultimately, TNPSC will ensure that

4% reservation, as contemplated under the Act of 2016, has been

fulfilled. At the time of implementing 200 point roster system, the

number of vacancies to be allotted for Differently-Abled persons will

vary from selection to selection, depending upon the turn prescribed

under 200 point roster.

5. The reservation for persons with benchmark disabilities and

the turn against the rotation reserved for persons with benchmark

disabilities are enumerated in Schedule VI to the Tamil Nadu

Government Servants (Conditions of Service) Act, 2016 (hereinafter

referred to as, “the Service Conditions Act”). Accordingly, the

vacancies will be identified for Differently-Abled persons and https://www.mhc.tn.gov.in/judis

notifications are issued. Therefore, the calculation of the petitioner,

based on the entire vacancies in the present notification, is

improper and not in consonance with Section 27 (bbb) of the

Service Conditions Act and the turn indicated against rotation under

Schedule VI of the Service Conditions Act.

6. It would be better if the counter filed by TNPSC, in this

regard, is extracted. We do not find any better way to express the

complex nature of the issues, except by recording the counter filed

by TNPSC, which reads as under: para 5, 6, 7, 10 and 12.

“...

5. In this connection it is submitted that in

carried forward vacancies have been earmarked for Differently Abled persons (pertaining to the recruitment in Notification No.08/2018) Notified as follows:-

S.No Category Carried Carried Notified in 2023 forward forward recruitment from 2018 from 2019 (carried recruitment recruitment forward vacancies)

https://www.mhc.tn.gov.in/judis

S.No Category Carried Carried Notified in 2023 forward forward recruitment from 2018 from 2019 (carried recruitment recruitment forward vacancies) (LD/LC/DF/AC)

LC/DF/AC)

The carried forward vacancies in Differently Abled person under BC(G) category from 2018 recruitment were only revised by addendum. Due to non availability of suitable candidates the aforesaid carried forward vacancies were not filled in 2019 recruitment also. The 2019 recruitment carried forward vacancy BC(G)(LD/LC/DF/AC) was not revised.

6. In this connection it is submitted that as per 27(bbb) of Tamil Nadu Government Servants (Conditions of Service) Act, 2016 the aforesaid Differently Abled person vacancies should have been converted into General vacancies in the respective communal category i.e., Disability category in the aforesaid DAP vacancies should

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have been de-reversed as follows:-

Si.No Category Carried Conversion of forward carried forward from 2018 vacancies recruitment 1 BC(G)(HH) 1 BC(G) 2 BC(G)(LV) 1 BC(G) 3 BC(G)(LD/LC/DF/AC) 1 BC(G) 4 MBC/DC(LD/LC/DF/AC) 1 MBC/DC(G) 5 MBC/DC(G)(LV) 1 MBC/DC(G) Total 5 BC(G)-3, MBC/DC(G)-2

Hence, the distribution of carried forward vacancies have been revised vide addendum No.12B/2023 dated 06.10.2023 as follows:-

7. It is also submitted that the petitioner

has stated in affidavit in the grounds paragraph 'E'

that the 3rd respondent has not issued the said

Notification as per the guidelines laid down in https://www.mhc.tn.gov.in/judis

G.O.Ms.No.21, dated 30.05.2017 issued by the 2nd

respondent, and that as per said G.O at least 4%

of total vacancies have to be reserved for the

differently abled persons however the same is not

enacted by the 3rd respondent in the Notification

No.12B/2023, dated 06.10.2023. The total

number of vacancies offered is only 4(would be 5

if the candidate on wait list is confirmed) as

against a total of 10 (rounded off from 9.8). The

petitioner has calculated the 4% DAP distribution

vacancies out of total 245 vacancies.

...

10. It is humbly submitted that, the petitioner Thiru.Y.Sudharsana Kumar (Registration Number 0101012151) has applied to the post of Civil Judge against Notification No.12/2023 dated 01.06.2023 and claimed in his application that he belongs to BC(OBCM) community with Disability in respect of LD(OA). He has been provisionally admitted to oral test on 02.02.2024 F.N. He had secured only 242.500 marks in the said examination (Main Written Examination marks 207.500 + Oral test marks 35.000).

...

12. The last candidate selected against for

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the respective categories are as follows (as per the revised selection):-

S.No. Selection Category Marks Caste/DA/ Rank Gender

1. BC(OBCM)G)(CF_2018)(9/9) 280.000 BC(OBCM) 50

2. GT(G)(LV)(CF_2019)(1/1) 263.500 BC-W- 122 Ortho

3. BC(OBCM)G)(CF_2019)(21/ 270.000 BC(OBCM) 89

21) (W)

4. BC(OBCM)(G) 242.842 BC(OBCM) 271

-LD(OL) (LD/LC/DF/AC_C/F_2019)(1/

1)

5. GT(G)(24/24) 288.000 Others 34

6. BC(OBCM)(G)(22/22) 258.150 BC(OBCM) 160

7. BC(OBCM)(G)(PSTM)(6/6) 256.500 BC(OBCM) 172 Substitute

The above said petitioner was placed in 272nd rank in the overall rank list and secured 242.500 marks only. Hence, he has not reached the zone of selection. Therefore, the prayer of the petitioner cannot be complied with.”

7.1. Admittedly, the petitioner is not within the zone of

consideration. Learned Senior Counsel would submit that in the

event of quashing the corrigendum and allotting one more vacancy

to the Differently-Abled persons, the petitioner would get a chance

to be included in the selection list.

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7.2. Such an exercise cannot be done by the High Court, more

specifically, at the stage of post-selection and in exercise of the

powers of Judicial Review under Article 226 of the Constitution of

India.

8. The exercise done by TNPSC is with reference to 200 point

roster system as contemplated under Section 27(bbb) of the

Service Conditions Act and the Schedule therein.

9. The process of selection, admittedly, has been concluded.

The final selection list was communicated to the Government and

the selection list is placed before the Hon'ble Governor of the State

of Tamil Nadu for necessary approval. At this stage, the challenge

made by the petitioner on the corrigendum to the notification, in

our opinion, is not entertainable. Thus, the petitioner has not

established any acceptable grounds for interference.

10. Consequently, the writ petition stands dismissed. There

shall be no order as to costs. Consequently, W.M.P.No.4736 of 2024

is closed.

11. It is made clear that TNPSC as to look into these https://www.mhc.tn.gov.in/judis

controversies and avoid the same in respect of future notifications

to be issued to fill up public posts.

                                                             (S.M.S., J.)         (C.K., J)
                                                                         01.08.2024

                     Neutral Citation:Yes/No
                     drm

https://www.mhc.tn.gov.in/judis

To:

1. The Registrar General High Court of Madras Parrys Corner, Chennai – 600 104.

2. The Principal Secretary to Government (FAC) The State of Tamil Nadu Department of Welfare of Differently Abled Persons No.5, Kamarajar Salai, Lady Wellington College Campus Chennai – 600 005.