Madras High Court
E.Surya vs The Teachers Recruitment Board on 20 June, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
W.A.(MD)No.2471 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.06.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
and
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
W.A.(MD)No.2471 of 2024
and
C.M.P.(MD)No.17308 of 2024
E.Surya ... Appellant
Vs.
1. The Teachers Recruitment Board,
Represented by its Chairman,
DPI Campus, College Road,
Nungambakkam, Chennai - 600 006.
2. The Government of Tamil Nadu,
Represented by its Secretary,
Higher Education Department,
Fort St.George, Secretariat,
Chennai - 600 009.
3. The Directorate of Technical Education,
Represented by its Director,
Technical Education Department,
No.53, Sardar Patel Road,
Guindy, Chennai - 600 032. ... Respondents
1/18
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W.A.(MD)No.2471 of 2024
Prayer : Writ Appeal filed under Clause XV of Letters Patent, to
allow the writ appeal by setting aside the order passed in W.P.
(MD).No.18412 of 2022 dated 05.09.2024 on the file of this
Court.
For Appellant :Mr.G.Prabhu Rajadurai,
for M/s.Ajmal Associates.
For Respondents :Mr.T.Amjad Khan,
Government Advocate for R1.
Mr.C.Venkateshkumar,
Special Government Pleader
for R2 & R3.
JUDGMENT
(By G.R.SWAMINATHAN, J.)
The Teachers Recruitment Board, Chennai issued
Notification No.14/2019 dated 27.11.2019 for the post of
Lecturers in Government Polytechnic Colleges and Special
Institutions (Engineering/Non-Engineering). The appellant
applied in response to the said notification for the post of
Lecturer (Information Technology) under Scheduled Caste
category. The appellant belongs to Hindu Pallan community
which is a Scheduled Caste. The appellant had scored 119
marks. There were two vacancies in the post of Lecturer (IT) to
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be filled up. The grievance of the appellant is that both the
vacancies were filled up by candidates belonging to SC
(Arunthathiyar) community. The appellant does not challenge
the selection and appointment of R.Jeyasudha who had scored
more marks than her. She, however, takes exception to the
selection of M.Subashini who got only 111 marks. The case of
the appellant is that Jeyasudha ought to have been selected
against the SC(A) category in the first instance. In that event, in
the SC (General Category) vacancy, the appellant would have
competed with Subhashini and others, all of whom had scored
lower marks compared to her. Since Jeyasudha was selected
against SC General vacancy in the first instance itself, the
appellant who is not an Arunthathiyar could not be considered
for the remaining vacancy which had been reserved for a person
belonging to SC(A) category. The contention of the appellant is
that the procedure adopted by the recruiting agency was not in
conformity with the statutory provisions.
2.The appellant filed WP(MD)No.18412 of 2022 assailing
the provisional selection list for the post of Lecturers (IT). The
learned Single Judge vide order dated 05.09.2024 dismissed the
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writ petition. Aggrieved by the same, this writ appeal has been
filed.
3.The learned counsel appearing for the appellant
submitted that as per Section 27(a) of the Tamil Nadu
Government Servants (Conditions of Service) Act, 2016 as well as
the recruitment notification dated 27.11.2019, the vacancy
earmarked for SC(A) should be first filled up and if more number
of qualified Arunthathiyars are available, they can also compete
with the other SC candidates for the remaining vacancy. In this
case, Ms.R.Jeyasudha who secured the highest marks was
wrongly accommodated under SC General category in the first
instance itself thereby depriving the appellant of her opportunity
for appointment to the post of Lecturer (IT) under SC General
category. This led to the selection of Subhashini under SC(A)
category even though she secured eight marks lower than the
appellant. The learned counsel for the appellant relied on the
decisions reported in (2021) 4 SCC 542 (Saurav Yadav v.
State of Uttar Pradesh) and (2007) 8 SCC 785 (Rajesh Kumar
Daria vs. Rajasthan Public Service Commission). He called
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upon this Court to set aside the impugned selection and allow
this writ appeal as prayed for.
4.Per contra, the respondents submitted that the
impugned selection cannot be faulted and that the learned
Single Judge rightly negatived the appellant's request.
According to them, there is no merit in this writ appeal.
5.We carefully considered the rival contentions and went
through the materials on record.
6.Reservation was introduced with the aim of advancing
and giving adequate representation to Scheduled Castes,
Scheduled Tribes and other socially and educationally backward
classes of citizens. Article 341(1) of the Constitution of India
empowers the President to specify the castes, races or tribes or
parts of or groups within castes, races or tribes which shall be
deemed to be Scheduled Castes in relation to the concerned
State or Union Territory as the case may be. The Constitution
(Scheduled Caste) Order, 1950 issued by the President contains
a list of 76 castes as far as the State of Tamil Nadu is concerned.
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Candidates belonging to these 76 castes are eligible to compete
in the quotas meant for Scheduled Castes. Though this sounds
fair, in practice, it turned out that only a few communities were
cornering the benefits of reservation supposedly meant for all the
76 enumerated castes. The Government of Tamil Nadu took
note of this and appointed a one man committee under the
chairmanship of Justice M.S.Janarthanam in the year 2008.
The said committee submitted its report on 22.11.2008. Based
on the said report, the State of Tamil Nadu enacted the Tamil
Nadu Arunthathiyars (Special Reservation of seats in
Educational Institutions including Private Educational
Institutions and of appointments or posts in the services under
the State within the Reservation for the Scheduled Castes) Act,
2009. The validity of this Act was put to challenge. The Hon'ble
Supreme Court upheld its constitutionality in State of Punjab
vs. Davinder Singh (2025) 1 SCC 1.
7.The only point that has to be answered in this appeal is
whether the authorities were right in accommodating the
meritorious SC(A) candidate against SC(General) category in the
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first instance.
8.It cannot be disputed that reservation meant for
Arunthathiyars is a social reservation and not special
reservation. Social reservation will come only under vertical
category whereas Special Reservation will come under horizontal
category. Horizontal reservation will cut across all categories. In
the very nature of things, reservation for Arunthathiyars cannot
cut across all categories. Since Arunthathiyar reservation has
been carved out of the reservation for Scheduled Castes, as a
logical correlative, it is also vertical.
9.It is true that in Rajesh Kumar Daria v. Rajasthan
Public Service Commission (2007) 8 SCC 785 and Saurav
Yadav vs. State of UP (2021) 4 SCC 542, it has been held that
if the quota fixed for horizontal reservations is already satisfied,
there would be no need for further selection towards the special
reservation quota. But such an approach cannot be adopted in
the case of reservation for Arunthathiyars because it is not a
horizontal reservation but vertical reservation.
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10.It must be conceded that use of expressions such as
“preferential basis”, “even after filling up of the required
appointments or posts reserved for Arunthathiyars amongst the
Scheduled Castes” found in the relevant statutes do cause
confusion. Before remarking on the use of such terms, we must
remind ourselves of the historical context in which the statutes
((Tamil Nadu Act 4 of 2009) and (Tamil Nadu Act 14 of 2016))
came to be enacted. The State of Tamil Nadu took a daring step
for the cause of social justice in the face of the judgment of the
Hon'ble Supreme Court in E.V.Chinnaiah vs. State of A.P
(2005) 1 SCC 394. It was held therein that there cannot be any
grouping of Scheduled Castes into different categories for
differential treatment. The said decision forbade sub-
classification of Scheduled Castes. It declared that the members
of the Scheduled Castes are a single integrated and homogenous
class and that it was not competent for a legislature of a State to
sub-divide them into separate compartments with a separate
percentage of reservation for each.
11.E.V.Chinnaiah was overruled in Davinder Singh
which is a Seven Judges Bench (6:1) decision. The correctness
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of E.V.Chinnaiah was doubted in the year 2020 itself by a Five
Judges Bench. The text as well as the expressions found in
Tamil Nadu Act 4 of 2009 and Section 27 of Tamil Nadu
Government Servants (Conditions of Service) Act, 2016 must be
expansively construed in the light of Davinder Singh so as to
effectuate the legislative intention.
12.It is well settled that such of the reservation category
candidates who make it on their own merit have to be adjusted
against the General Category candidates. In other words, when
vacancies are filled up, the open quota opens first and
candidates irrespective of caste, sex etc., are allowed to compete
based on merit. The meritorious candidates should be first
selected as against the open quota vacancies. Only thereafter,
selection has to be made for the vertical reservation category
from among the remaining candidates belonging to that
particular reserved category (vertical) based on merits. It must
then be seen if sufficient number of candidates to satisfy special
reservation (horizontal reservation) have been selected. If not,
the required number of special reservation candidates shall have
to be accommodated as against social reservation categories by
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deleting the number of candidates therefrom. At any rate,
candidates who were selected as against a post under open
quota shall not be adjusted against the reserved quota under
vertical reservations. The above procedure was approved by the
Hon'ble Supreme Court in State of T.N vs. K.Shobana (2021) 4
SCC 686.
13.Even though this is the settled procedure for
implementing the policy of reservation, the appellant would want
us to make a departure when it comes to Arunthathiyar
reservation. Section 5 of Tamil Nadu Act 4 of 2009 and Section
27(a) of Government Servants (Conditions of Service) Act, 2016
do state that the sub quota for Arunthathiyars must be filled up
first. Section 5 of Tamil Nadu Act 4 of 2009 is as follows:
“5. Right to compete for non- preferential seats,
appointments or posts not to be affected. -
Notwithstanding anything contained in the 1994 Act
or the 2006 Act or in any other law for the time being
in force or in any judgment, decree or order of any
court or other authority, having regard to the social
and educational backwardness of Arunthathiyars,
where more number of qualified Arunthathiyars are
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available, even after filling up of the required
percentage of reservation for Arunthathiyars on
preferential basis, such excess number of candidates
of Arunthathiyars shall be entitled to compete with
Scheduled Castes other than Arunthathiyars in the
inter-se merit among them in the case of appointments
or posts in the services under the State or admission
into educational institutions including private
educational institutions.”
Section 27(a) of the 2016 Act is a mere reiteration of Section 5 of
the 2009 Act. Section 27(a) is as follows :
“ 27. Reservation of appointments.
- 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 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
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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.”
But the key to the problem lies in Section 8 of Tamil Nadu Act 4
of 2009 which provides a complete answer. It reads as follows:
“8.Reservation not to be affected.- Notwithstanding
anything contained in sections 3,4,5 and 6 of this
Act, the claims of the students or members
belonging to Arunthathiyars shall be considered for
the unreserved seats, appointments, or posts which
shall be filled up on the basis of merit and where a
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student or member belonging to Arunthathiyars, if
selected on the basis of merit, the number of seats,
appointments or posts reserved for the
Arunthathiyars shall not, in any way, be affected.”
Section 5 makes it clear that Arunthathiyars are entitled to
compete with the other Scheduled Castes. In other words, the
Arunthathiyars cannot be cribbed and confined only to the 3%
sub-quota carved out of the 18% meant for all Scheduled Castes.
Section 4 might suggest that the sub-quota must be filled up
first and only thereafter the remaining candidates can compete
in the SC (General) category. But Section 5 of the Act will have
to be read in subordination to Section 8 of the Act. This is so
because Section 8 opens with the clause “notwithstanding
anything contained in Sections 3, 4, 5 and 6 of this Act...”. The
expression “notwithstanding” found in Section 8 of the Act gives
it an overriding effect over the other provisions of the Act
including Sections 3, 4 and 5 of the Act. Black's Law Dictionary
defines “notwithstanding” as despite/inspite of. In P. Ramanatha
Aiyar's Advanced Law Lexicon defines “notwithstanding clause”
as a clause to prevail over other clauses. The provision which
has this non-obstante clause would have overriding effect and
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shall prevail over the provisions mentioned in the clause. (vide
Ishar Das v State of Punjab AIR 1972 SC 1295). Section 8
of the Act states that the claims of the Arunthathiyar candidates
shall be considered for the unreserved seats/posts which shall
be filled up on the basis of merit. Where an Arunthathiyar
candidate is selected on such merit basis, the number of
seats/posts reserved for Arunthathiyars shall not in any way be
affected. Section 8 of the Act has to be construed and
interpreted in the light of Davinder Singh judgment.
14.We must also bear in mind the mischief rule of
interpretation. Tamil Nadu Act 4 of 2009 was intended to
remedy the inability of Arunthathiyars to enjoy the fruits of
reservation. The one man committee report noted that
Arunthathiyars who constitute nearly 16% of the total population
of Scheduled Castes in the State are in the last rung of the
Scheduled Castes. They are referred as Dalits of Dalits. They
are socially and educationally backward and did not find
adequate representation in the services under the State in
proportion to their population. Therefore, the expression
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“unreserved seats, appointments or posts” occurring in Section 8
of the Tamil Nadu Act 4 of 2009 must be understood only as
“seats, appointments or posts not reserved for Arunthathiyars
for which they are entitled to compete”. In other words, the
expression “unreserved” denotes the entire field outside the sub-
quota earmarked for Arunthathiyars in the SC(General) category
and the open quota. Section 8 of the 2009 Act must be
understood in the light of Section 5 of the said Act. If this
expression is understood as denoting only the open quota, then,
the very object of enacting Tamil Nadu Act 4 of 2009 will not be
furthered but frustrated. This alone would ensure fair
representation and substantive equality. To use a lighter
expression, what is sauce for the goose must be sauce for the
gander. When a reserved candidate can compete in the open
quota on merit and his selection would not affect the number of
vacancies earmarked for his group, the same approach should
be adopted in the case of sub-reservation also. In Davinder
Singh, the Hon'ble Supreme Court emphasised that Article 16(4)
must be understood in terms of effective and not just numerical
representation.
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15.To sum up, when reservation policy is implemented, the
open quota shall be filled up first on merit basis. An
Arunthathiyar candidate can compete in the open quota on merit
basis and if he or she is selected, the sub-quota earmarked for
Arunthathiyars will not be affected. The meritorious
Arunthathiyars are entitled to compete in the SC General
category and if selected on merit basis, again, the sub-quota
meant for Arunthathiyars will not be affected. The most
meritorious Arunthathiyar candidate shall not be adjusted
against the SC(A) vacancy in the first instance. Such an
approach alone would give effect to Section 8 of Tami Nadu Act 4
of 2009 which will prevail over Section 27(a) of the Act 14 of
2016 as well as Sections 3, 4 and 5 of the Tamil Nadu Act 4 of
2009.
16.In this view of the matter, we uphold the manner of
selection made by the Teachers Recruitment Board. The most
meritorious candidate happened to belong to SC(A) category.
She was rightly accommodated under the SC(G) category. The
learned Single Judge adopted the correct approach and
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interference with the said order is not called for. This writ
appeal is dismissed. No costs. Consequently, connected
miscellaneous petition is closed.
(G.R.S. J.,) & (K.R.S. J.,)
20.06.2025
NCC : Yes/No
Index : Yes / No
Internet : Yes/ No
SKM
To:
1. The Chairman,
Teachers Recruitment Board,
DPI Campus, College Road,
Nungambakkam,
Chennai - 600 006.
2. The Secretary,
Higher Education Department,
Fort St.George,
Secretariat,
Chennai - 600 009.
3. The Director,
Directorate of Technical Education,
Technical Education Department,
No.53, Sardar Patel Road,
Guindy, Chennai - 600 032.
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G.R.SWAMINATHAN, J.
and
K.RAJASEKAR, J.
SKM
20.06.2025
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