IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:10.07.2009 CORAM: THE HON'BLE MR. JUSTICE P.JYOTHIMANI WRIT PETITION Nos.30885 of 2004, 17969 of 2004, 19851 of 2004 and 482 of 2005 AND CONNECTED MISCELLANEOUS PETITIONS. A.B.Natarajan .. Petitioner in WP.No.30885 of 2004 S.Madhavan .. Petitioner in WP.No.17969 of 2004 & WP.No.482 of 2005 1.R.Venkatesh 2.V.Sangili 3.V.Singaravel 4.V.Santhi 5.G.Balamurugan 6.C.Vijayakumar 7.A.Natarajan 8.S.Saravanan Sattaiyappan 9.P.Chandrasekaran 10.T.Somasakthi Ganapathi 11.S.Ramesh 12.M.Arumugam .. Petitioners in 13.V.Senthilpandian WP.No.19851 of 2004 vs. 1. The Secretary Tamil Nadu Public Service Commission Government Estate Anna Salai, Chennai 600 002. 2. T.Jayaseelan (impleaded as R.2 as per order dated 10.03.2008 vide WPMP. No.199/07) 3. Sudhan R. 4. Mohan D. 5. Balasubramaniam K. 6. Muralidharan K.V. 7. Kalaiselvi R. https://hcservices.ecourts.gov.in/hcservices/ 8. Vijaya Rani J. 9. Karpakam K. 10.Anne Mary Swarna J. 11.Vishkan S. 12.Karunakaran P. 13.Kumaravel Pandian P. 14.Ejilearassane K. 15.Baskarapandian D. 16.Ravichandran D. 17.Santhi K. 18.Ravendiran E. 19.Ganesan B. 20.Sangeetha M. 21.Christu Raj T. 22.Meenakshi Sundaram SS. 23.Brindha Devi R. 24.Aruna M. 25.Poongodi M.N. 26.Ranjeethkumar J. 27.Stalin G. 28.Tharpagaraj K. 29.Ashok Kumar D. 30.Pandiarajan R. 31.Shyamala Devi C. 32.Vijayalakshmi P. 33.Kingshlin M. 34.Janaki M. 35.Aravind S. 36.Stephen Jesubatham N. 37.Thangadurai P. 38.Prabakar K. 39.Maheswaran S.S. 40.Manivannan M.S. 41.Shyamala Devi V. 42.Adhiveerapandiyan K. 43.Gandhikumar N. 44.Padmavathy D. 45.Seenivasan R. 46.Thangavel M. 47.Sujatha R.K. 48.Raji M. 49.Renuga Devi P. 50.Sumathi R. 51.Suganthi K. 52.Indira T. 53.Usha N. 54.Jeyaraman M. 55.Selvaraj K.P. 56.Satheesh Kumar N. https://hcservices.ecourts.gov.in/hcservices/ 57.Subashini B. 58.Sandhanam M. 59.Chandirasekaran V.M. 60.Anandhi J. 61.Hema M. 62.Yasodha Devee S. 63.Tamil Selvi M. 64.Balaji Saravanan L. 65.Shanmugam K. 66.Rajendra Prasad G. 67.Balakrishnan K. 68.Prabhu T. 69.Pandian K. 70.Subhashini P. 71.Nadukkatturaja P. 72.Selvakumaran T. 73.Dhanalakshmi M. 74.Sivakumar V. 75.Elanselvi S. 76.Kaveri R.V. 77.Vanitha T. 78.Chamundeeswari V. 79.Malarvili S. 80.Laxmipriya G. 81.Lavanya N. 82.Stalin K. 83.Palaneeswari J. 84.Lakshmi S. 85.Vanathi K.P. 86.Rajalakshmi P. 87.Chitrapavai G. 88.Jeyaraman T. 89.Nallasivam V. 90.Pitchai V. 91.Varadharajan K. 92.Srinivasan N. (R.3 to R.92 impleaded as per order dt.22.04.2008 in WPMp.789/08) .. Respondents in WP.30885 of 2004 1. The Secretary Tamil Nadu Public Service Commission Government Estate Anna Salai Chennai 600 002. https://hcservices.ecourts.gov.in/hcservices/ 2. T.Jayaseelan (impleaded as R.2 as per order dated 16.02.2007 vide WPMP. No.240/07) .. Respondents in WP.17969 of 2004 1. The State of Tamil Nadu rep. By its Secretary to Govt. Personnel and Administrative Reforms Department Fort St.George Chennai 9. 2. The Tamil Nadu Public Service Commission rep. By its Secretary Government Estate Chennai 600 002. .. Respondents in WP.No.19851 of 2004 1.State of Tamil Nadu rep. By Chief Secretary to the Government of Tamil Nadu Secretariat, Fort St.George Chennai. 2.Secretary to Govt.of Tamil Nadu Personnel and Administrative Reforms Department Fort St.George Chennai 9. 3.Tamil Nadu Public Service Commission rep. By its Chairman Government Estate Chennai 600 002. 4.Union of India rep. By Director Central Bureau of Investigation /Special Police Establishment CGO Complex, Lodhi Road New Delhi. .. Respondents in WP.482 of 2005 Writ petitions filed under Article 226 of the Constitution of India praying for issuance of Certiorari, Certiorarified Mandamus https://hcservices.ecourts.gov.in/hcservices/ W.P.30885/04: (1) Writ Petition praying to issue a Writ of certiorarified mandamus calling for records pertaining to the selection of candidates for the Group-I 2000-2001 Services of Tamilnadu Government published by the respondent on 26.8.2004 in Tamilnadu Daily Dina Thanthi and quash the same and direct the 1st respondent to re-draw the selection list in accordance with law and consider the name of the petitioner for the said selection appoint and pass such further order. (Prayer amended as per order dated 11.6.2009 in WPMP No.187/09 in W.P.No.30885/04) W.P.17969/2004: Writ Petition praying to issue a Writ of certiorarified mandamus calling for records pertaining to the result of Group-I main Exams 2000-01 quash the same and direct the respondent to consider the petitioner's claim for appointment in Group-I Services (Prayer amended as per order dt.6.10.07 in WPMP No.2202/07 in W.P.17969/2004. W.P.No.19851 of 2004: Writ petition praying to issue a Writ of certiorarified mandamus to call for the records of the 2nd respondent in connection with the result of selected candidates for the Group- oral interview 2000-01 which was held on 21.6.2004, 24.6.2004 which is published on 5.6.04 in Tamil News Daily "Dinamani" and quash the same as illegal arbitray and against the principles of legitimate expectation and further direct the 2nd respondent to publish a fresh list after following all the procedures. W.P.482 of 2005: Writ Petition praying to issue a Writ of Mandamus directing the 4th repondent to comprehensively investigate the allegations of massive corruption and fraud in the examinations & recruitments conducted by the 3rd respondent – Commission over the past decade since the introduction of multiple – subject system, and further be pleased to pass such other orders or writs setting-aside all the selections effected by the 3rd respondent – Commission, over the past decade in the light of the law laid down by the Supreme Court in paras 20 to 23 in the case of Krishnan Singh – Vs- State of Haryana reported in (1994) 4 SCC 165, which is a sine qua non on this Hon'ble Court. For petitioner in : Mr.Manikandavadhan Chettiar W.P.No.30885/2004 For petitioner in : Mr.P.L.Velayutha Raja W.P.Nos.17969/04 for Mr.S.Umapathy and 482 of 2005 For petitioners in : Mr.T.R.Rajagopalan,Sr.Counsel W.P.No.19851/2004 for Mr.K.Soundarrajan https://hcservices.ecourts.gov.in/hcservices/ For respondents : Mr.R.Suresh Kumar for R.1, R.1, R.2 & R.3 TNPSC in Wps.30885,17969, 19851/04 & 482/05 respectively. Mr.T.Thirugnanam Spl.Govt.Pleader for R.1 & R.1 & R.2 in Wps.19851/04 & 482/05 respectively Mr.N.Chandrasekaran Special Public Prosecutor for R.4 in WP.No.482/05. Mr.V.Subbiah for R.52 in WP.No.30885 of 2004. .. COMMON ORDER In all the above writ petitions, the issue involved relates to the selection of candidates for Group-I Services by the Tamil Nadu Public Service Commission (TNPSC) for the year 2000-01, the result of which was published on 25.8.2004. W.P.No.30885 of 2004 has been filed by one A.B. Natarajan, who appeared for Group I Examinations, having been selected in the preliminary examinations held in 2001 and in the main examinations held in February, 2002, declared as not selected in the oral test conducted between 21.6.2004 to 24.6.2004 by the TNPSC, challenging the selection as published on 25.8.2004. He has subsequently filed WP.M.P.No.218 of 2007 for impleading one of the selected candidates viz., T.Jayaseelan and the said petition was ordered on 16.2.2007. Then, he impleaded other selected candidates as respondents 3 to 92 as per order passed in WP.M.P.No.789 of 2008 dated 22.4.2008. As per the direction of Court, he served notice on the respondents 3 to 92 privately out of whom respondents 2, 4 to 6, 11, 14, 16 to 18, 20, 21, 23, 27, 33 to 36, 39, 43, 44, 46, 51 to 55, 57, 61 to 64,67 to 70, 73 to 75, 78,79, 90 and 91 were served and proof of affidavits were filed. However, in respect of remaining respondents, the covers were returned. 2. Subsequently, by order passed in WP.M.P.187 of 2009 dated 11.6.2009, the prayer in the writ petition was amended to challenge the abovesaid selection as published in the Tamil daily, 'Daily Thanthi' dated 26.8.2004 and to direct the first respondent, TNPSC to redraw the selection list in accordance with law and to consider the name of petitioner for selection and to appoint him. https://hcservices.ecourts.gov.in/hcservices/ 3. The respondents 2 to 92, the selected candidates, who have been served have not chosen to appear. 4. W.P.No.19851 of 2004 has been filed by 13 unselected candidates in the said Group-I examinations. 5. Likewise, W.P.No.17969 of 2004 has been filed by another batch of 18 unselected candidates challenging the selection and the prayer in the said writ petition was subsequently amended as per order in WP.M.P.No.2202 of 2007 dated 6.10.2007 to challenge the selection and for direction to the respondent to consider the petitioners' claim for appointment in Group-I Services. Out of the said 18 petitioners, except the first petitioner S.Madhavan, all other petitioners have chosen to withdraw from the said writ petition which was ordered by this Court on 30.8.2007 and the writ petition was dismissed in respect of petitioners 2 to 18 and hence, the first petitioner S.Madhavan, alone is maintaining the said writ petition. 6. The said S.Madhavan has subsequently filed another writ petition in W.P.No.482 of 2005 impleading the Union of India represented by the Central Bureau of Investigation/Special Police Establishment, New Delhi, as 4th respondent for a Mandamus directing the said 4th respondent to comprehensively investigate into the alleged massive corruption and fraud in the examinations and recruitment conducted by the TNPSC over the past decade since the introduction of multiple subject system and to set aside the selection effected by the third respondent, TNPSC over the past decade, in the light of the views expressed by the Hon'ble Supreme Court in Krishan Singh vs. State opf Haryana [(1994) 4 SCC 165]. 7. In all the above said writ petitions, of course, except the last one viz., W.P.No.4508 of 2008, as it is earlier stated, Group I examinations conducted by the TNPSC for the year 2000-01 for which final results were published on 26.8.2004 in newspapers are challenged mainly on the ground that scaling technic followed by the TNPSC for the purpose of valuation and selection is not proper, that the candidates who were selected have committed breach of certain instructions issued by the TNPSC regarding the use of sketch pens, colour pencils, etc. and that while transferring marks from the mark statements to mark sheets, mistakes have been committed by the staff of the TNPSC. The petitioners have also alleged irregularities in granting dummy numbers. In W.P.No.482 of 2005, the petitioner has also stated that the markings in some of the answer papers of the selected candidates have been intentionally made to enable the staff of TNPSC to identify them and therefore, as per the judgment of the Supreme Court reported in Karnataka Public Service Commission vs. B.M.Vijaya Shankar [A.I.R. 1992 SC 952], such selected candidates should be disqualified. https://hcservices.ecourts.gov.in/hcservices/ 8. Further, he has given some of the instances stating that nearly 8 selected candidates have usurped the posts even though they got lesser marks. The instances given by the petitioner are, (i) the candidate with roll No.537915 who got 1240 marks, got selected by bribe while the candidate with roll No.574504 who got 1280 marks was not selected even though both fall under the same category viz., woman/general; (ii) the candidate with roll No.545588 who has scored 1278 marks was selected by illegal means while the candidate with roll No.521364 who got 1283 marks was not selected for the post of Commercial Tax Officer, even though both belong to BC General category; (iii) the candidate with roll No.574245 who scored 1231 marks got selected illegally while the candidate with roll No.562047 who scored 1238 marks was not selected for the post of Deputy Registrar even though both belong to MBC general category; (iv) the candidate with roll No.519101 who scored 1186 marks was selected while candidate with roll No.550621 who scored 1196 marks was not selected; (v) the candidate with roll No.592685 who scored 1179 marks got selected while the candidate with roll No.550621 who scored 1196 marks was unable to be selected for the post of Deputy Registrar, though both are coming under the same category viz., Scheduled caste/ General Category. (vi) the candidate with roll No.502689 who scored 1164 marks was selected while the candidate with roll No.526956 who obtained 1230 marks was not selected for the pose of Deputy Registrar though both are coming under the women general category; (vii) the candidate with roll No.523764 who scored 1198 marks was selected while the candidate with roll No.585813 who scored 1217 marks was not selected for the post of Deputy Registrar though both are coming under woman general category; (viii) the candidate with roll No.604980 who scored 1172 marks was able to be selected while the candidate with roll No.523763 who scored 1216 marks was not selected for the post of Deputy Superintendent of Police though both are coming under woman general category. 9. As stated above, the writ petitioner in W.P.No.30885 of 2004 with roll No.510193 who has taken political science and sociology as optional subjects was selected in the preliminary examinations held in 2001 and also selected in the main examinations held in 2002 and during the oral tests he was awarded 150 marks while he scored 1045 marks in the written examination, both put together totalling 1195 marks. As it is seen in the affidavit filed by the said writ petitioner, A.B.Natarajan, he is stated to have completed 30 years of age in October, 2004, accordingly, as on date, he must have completed 35 years of age. https://hcservices.ecourts.gov.in/hcservices/ 10. In the counter affidavit filed by the TNPSC, it is stated that the Commission has advertised by notification dated 27.12.2000 inviting applications for direct recruitment to the posts under Group I services for the year 2000-01 in respect of 95 vacancies, which were subsequently revised by the Government as 91 vacancies. There are two stages of selection viz., (i) written examination which consists of preliminary examination and main examination and (ii) viva voice and oral interview. The preliminary examinations is stated to be a screening test and the marks obtained therein would not be counted in the main written examinations for determining the final order of merit and the candidates to be admitted to the main written examinations would be 10 times number of candidates to be recruited subject to the rule of reservation. The main written examination consists of written papers. It is also stated that while preliminary qualifying examination consists of one paper and the main written examination consists of six papers. It is also stated that if the number of vacancies notified/reserved to be filled up from any reservation category like, SC/ST etc., the number of candidates to be admitted to oral test shall be two times the number of vacancies to be recruited against the said reserved group based on the marks obtained by candidates in the main examinations. If the number of vacancies in any of the reservation groups of the same recruitment is four and below, the number of candidates to be admitted to the oral test of the said particular reservation group shall be three times the number of vacancies to be recruited against the said reservation group and the final selection would be made based on the marks obtained in the main written examination and the oral test together. The appearance in the main written examinations and the oral test is compulsory. 10(a). It is further stated that the writ petitioner in W.P.No.30885 of 2004, A.B.Natarajan with registration No.510193 was selected in the preliminary examination and admitted to the main written examination, in which he has chosen "Political Science and International Relations" and "Sociology" as the optional subjects in addition to the general studies which is a compulsory subject and language paper which is a qualifying paper. The candidates were given the option to answer either in English in full or in Tamil in full while the question papers were said to be both in English and Tamil. It is stated that the writ petitioner has obtained 1045.23 marks in the main written examinations after adopting scaling technic for optional subjects. He has secured the following marks: General studies ... 412.50 Political Science and International Relations ... 293.23 Sociology ... 339.50 https://hcservices.ecourts.gov.in/hcservices/ The said writ petitioner belongs to MBC category. He was admitted to oral test, in which he has obtained 150 marks and the total marks secured by him is 1195.23. Since the cut-off mark for selection of candidates under MBC category was 1239.57, he was not selected. 10(b). It is stated that out of 778 candidates who have taken the main written examination, 109 have opted for the subject "Political Science and International Relations" as one of the optional subjects, out of whom 76 candidates have answered the questions in Tamil. It is also stated that out of 91 candidates selected for the appointment to the posts of Group I services in 2000-01, 12 candidates opted for "Political Science and International Relations". Out of them, 5 candidates have answered in Tamil and therefore, it is denied that very few candidates who have opted for "Political Science and International Relations" were selected. It is also stated that the experts in the subject having good knowledge in Tamil alone were appointed for this recruitment to value the answer papers. The Commission has also followed the double valuation and triple valuation processes. It is stated that at first the answer books are valued by two examiners and the average marks secured in the two valuation are taken into account. If the difference of marks between two valuation is more than 15 percentage, the answer sheet is sent for third valuation to another examiner and in such case, the average of nearest two marks is taken into account. Therefore, the allegations made against the examiners for their valuation is denied. 10(c). It is also stated that the Commission has adopted the scaling technic for valuation of answer books in the optional subjects as it is announced in the notification dated 27.12.2000. The purpose of using scaling technic is to minimise the subject bias and thus a fair chance is given to every subject so as to give representation for candidates choosing any optional subjects. It is stated that the said technic was followed only after obtaining experts opinion in the field and the same was followed by Rajasthan Public Service Commission. It is also stated that the scaling technic has been followed by the TNPSC in cases where number of candidates appeared in the subject were more than 5. In respect of the subjects where the candidates appeared are 5 or less than 5, the raw marks awarded were taken as scaled marks. It is also stated that there is no formula for scaling of marks which was universally accepted. It is stated that the non-following of scaling technic for less than 5 candidates is not violation of Article 14. The marks obtained through scaling technic in optional subjects are added with the raw marks in general subjects. 10(d). It is the case of the respondent Service Commission that the petitioner in the said writ petition while challenging the non- implementation of scaling system in case where the candidates are https://hcservices.ecourts.gov.in/hcservices/ less than 5 in number, has taken a contradictory stand saying that the non-implementation of the scaling technic is violative of Article 14. It is also stated that even before the said selection, the TNPSC has used the scaling technic in the year 1999-2000 and some of the candidates who have objected to the said system have approached the Tamil Nadu Administrative Tribunal by filing O.A.No.1211 of 2002, etc. which were dismissed on 30.12.2002. 10(e). It is also the case of the TNPSC that the Supreme Court in State of U.P. v. S.C.Dixit (AIR 2004 SC 163) has ruled that the adoption of scaling formula is not arbitrary or illegal. It is also stated that even this Court has approved the non-following of scaling technic in respect of candidates who are less in number in another batch of writ petitions. It is stated that while there is no dispute about the marks obtained by the said writ petitioner in his qualifying examinations, the same are not the factors to be considered in the competitive examinations. It is also stated that following the instructions of the Commission, 48 answer books were invalidated for the reason that the candidates have used colour pens, sketch pens, etc. for underlining and drawing in the answer books. It is also stated that in respect of valuation of answer books first dummy numbers are given and only thereafter, the papers were handed over to examiners for valuation. After valuation, original numbers will be restored in answer books. The answer books were valued twice by different examiners and the marks given by each examiner were entered separately and totalled by the examiners themselves. The answer books were placed for third valuation in case the difference of marks awarded by two examiners has exceeded 15% of total marks. 10(f). It is also stated that the role of Commission staff is restricted only to verify and to ensure that only the marks awarded by the examiners were entered in the mark sheets and to scrutinse the answer books to confirm that all answers were valued and if any answer was left unvalued and there is any discrepancy in awarding of marks, it is brought to the notice of the examiner concerned and the issue is settled then and there by the Commission. Therefore, there is no scope for the staff of the TNPSC to commit any mistake. The allegation in respect of written entry made in Group I Service Commission Examinations, 1999-2000 is denied. The main written examinations for Group I Service Commission, 1999-2000 were held from 9.2.2002 to 13.3.2002. There was a ban on recruitment issued by the Government in 2001 and the Government has confirmed the vacancies only on 18.3.2004 and directed that the results of the main written examinations already held by the TNPSC be published and interview to be completed after the Parliamentary Elections are over. Therefore, the results were published on 05.06.2004 and oral tests were conducted from 21.06.2004 to 24.06.2004 and the selection was finalised in August, 2004 and therefore, there is no delay on the part of the Service Commission in completing the same. https://hcservices.ecourts.gov.in/hcservices/ 11. In the counter affidavit filed by the TNPSC in the writ petition filed by S.Madhavan in W.P.No.482 of 2005 who is also the only writ petitioner in W.P.No.17969 of 2004, the TNPSC has stated that the said S.Madhavan who was selected in the preliminary examination has appeared for the main written examinations conducted between 9.2.2002 and 13.3.2002 and he was found not eligible to be admitted to the oral tests conducted between 21.6.2004 to 24.6.2004. While denying the allegations made against the officials of the TNPSC and reiterating the stand in respect of the method of selection as stated in the counter affidavit filed in W.P.No.30885 of 2004, it is stated that in respect of candidates who have written the main written examinations, they were summoned for oral tests and their marks were hosted in the Commission's web site after publication of final results. In respect of OMR answer sheets which are used in the preliminary examinations originally, the shading by HB pencil was allowed. Due to the reason that the candidates who have wrongly shaded in the column and erased the same and shaded in some other column and due to the reason of improper erasing of the original shade it posed a problem for valuing the OMR answer sheets, the Commission has substituted blue/black ball point pen in the place of HB pencil with the result, when answer is shaded it cannot be erased. This was effected from the year 2000 to put an end to the difficulty of scanning OMR answer sheets. 11(a). It is stated that in paragraph-22 of the Commission's instructions etc., to candidates appearing for the main written examinations, which in the form of descriptive type, it was mentioned that the candidates who violate any one or more of the instruction(s) printed on the main answer book or in the memorandum of admission will be rejected and their answer books will be invalidated and debarred for such period as the Commission may consider fit. In the note annexed to the Memorandum of Admission it is stated that, "The candidates should not use colour pens, sketch pens, pencils except those permitted in the instructions etc. to candidates for any purpose including drawing and highlighting." It is explained that in the said note No.5 in the expression, 'colour pens, sketch pens, pencils' the term, 'colour' should be taken as common adjective and it should be read as colour pen, colour sketch pen, colour pencils. According to the respondent Commission, the said note does not prevent the use of HB pencils for drawing, etc. as it would not reveal the identity of the candidates.