IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 19-8-2008 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.426 of 2008 M.P.Nos.1 & 2 of 2008 B. Kali Jothi ... Petitioner Vs. 1. Metropolitan Transport Corporation (Chennai) Ltd., An Undertaking of the Government of Tamil Nadu, rep.by its Joint Managing Director, Anna Salai, Chennai - 600 002. 2. The General Manager, Metropolitan Transport Corporation (Chennai) Ltd., Anna Salai, Chennai - 600 002. 3. The Assistant Director, Office of the District Employment Office, 56/140, Santhome High Road, Chennai - 4. ... Respondents Prayer: This writ petition is filed under Article 226 of Constitution of India, praying this Court to issue a writ of Certiorarified Mandamus calling for the records of the first respondent Letter No.14950/PS(T)1/MTC/2007, dated 12.11.2007 and to quash the same insofar as petitionr is concerned and direct the first respondent to appoint petitioner to the post of conductor in accordance with law. For Petitioner : Mr.G.Rajan For Respondents 1&2 : Mrs.Rita Chandrasekaran, for Mr.Jayesh B.Dolia For 3rd Respondent : Mrs.Lita Srinivasan, Government Advocate https://hcservices.ecourts.gov.in/hcservices/ O R D E R By consent of both sides the writ petition is taken up for final disposal. 2. Prayer in the writ petition is to quash the order of the first respondent dated 12.11.2007 and to direct the first respondent to appoint the petitioner in the post of Conductor. 3. The case of the petitioner is that she is a destitute widow and her husband died in the year 1990, leaving behind the petitioner and two daughters. After the demise of her husband, petitioner passed S.S.L.C. examinations in the year 1993 and also M.A.Degree through Open University Stream. Petitioenr also obtained conductor licence and registered her name in the Employment Exchange in the year 1999. Petitioner was not called for interview for over eight years. The first respondent on 24.2.2007 called the petitioner for interview for the post of Conductor, which was held on 12.3.2007. Petitioner's certificates were verified and according to the petitioner the vacancies available was 250, for which more than 2000 candidates appeared for the interview. Several women candidates also attended the interview. Petitioner also states that out of the 250 vacancies 75 posts are earmarked for women candidates. Petitioner was neither informed of the selection or non-selection and on enquiry from the respondent, petitioner claims that she was informed that the Corporation took a policy decision not to recruit any women candidates to the post of Conductor. Petitioner submitted a representation on 19.7.2007 to the first respondent. As the said representation was not considered by the first respondent, petitioner filed W.P.No.2590 of 2007 and prayed for issuing a writ of mandamus to consider her representation dated 19.7.2007 and on 2.8.2007 this Court directed the respondents 1 and 2 to consider the representation of the petitioenr in accordance with law within a period of six weeks. After the said order, on 3.9.2007 a reply was sent by the first respondent stating that if the petitioner is possessing all the qualifications, she will be selected in accordance with law. 4. The first respondent called for fresh list of candidates from the third respondent/Employment Office by communication dated 12.11.2007 stating that there are 250 vacancies available for posting Temporary/Daily Paid Conductor and therefore suitable candidates may be sponsored. In the said communication details of reservation as per Rule 22 of the State and Subordinate Service Rules is also stated. It is specifically stated therein that women candidates are to be sponsored for complying with G.O.Ms.No.89 P&AR Department, dated 17.2.1989 and for priority category G.O.Ms.No.541 P&AR Department, dated 29.9.1989 is to be followed. Since the petitioner https://hcservices.ecourts.gov.in/hcservices/ is not given appointment and the first respondent having chosen to invite further list from the third respondent for appointment of Conductors, petitioner has filed the present writ petition seeking the above prayer. 5. The respondents 1 and 2 have filed counter affidavit wherein it is stated that the first respondent called for the list of candidates from the third respondent and the petitioner's name was also sponsored and she was interviewed for the post of conductor on 12.3.207 at Annanager Training Centre along with others. The women candidates, who have participated in the interview shall have to undergo medical test and oral test. The Selection Committee constituted for conducting oral interview, not selected the petitioner since her performance in the personal interview was below average and therefore she was not selected for the conductor post. It is further stated in the counter affidavit that female candidates have also been appointed in the Corporation, who have fulfilled all the conditions and recommended by the Selection Committee. According to the respondents, if no women candidates are available, which involves physical fitness and technical parameters, vacancies in the said category can be considered for male candidates. The petitioner was also given reply on 3.9.2007, pursuant to the direction given by this Court on 2.8.2007. The list of selected and non-selected candidates was intimated to the third respondent. It is further stated in the counter affidavit that as per the Government Order, 1:1 ratio was not violated by the Employment Exchange in sponsoring the candidates, and the reservation of 1/3rd vacancies to the women candidate is not applicable to the post of Conductor, which involves physical skill/fitness, technical parameters, medical fitness, first aid certificate, Conductor licence, etc. The petitioner's performance having been found below average, she was not selected and she has no vested right to seek selection merely because she has participated in the interview. 6. The learned counsel for the petitioner submits that 250 vacancies having available not less than 75 women conductors are bound to be appointed as 1/3rd vacancies are reserved for women. According to the learned counsel, 22 women candidates were called for interview, of which only three candidates were selected and other four candidates' claim were rejected on the ground that they have not satisfied the requirements of either height/weight/eye test, against 75 vacancies and the petitioner also came out successful in all the tests and therefore there is no reason to deny appointment to the petitionerm who was within the age at the time of interview. 7. The learned counsel appearing for the respondents on the other hand submitted that the interview committee while conducting https://hcservices.ecourts.gov.in/hcservices/ interview awarded marks to each of the candidates and the petitioner secured only four marks, whereas the minimum marks prescribed was five for selection and the petitioner having not secured the said minimum marks, she was not selected. The learned counsel also produced the mark list of all the candidates who attended the interview along with the petitioner on 12.3.2007. The leanred counsel further submitted that even though there is no rule prescribing minimum marks to be secured in the interview, the same was prescribed by the Interview Committee and the petitioner having not obtained the minimum marks was not selected and as such there is no discrimination. 8. I have considered the rival submissions made by the learned counsel for the petitioner as well as learned counsel for the respondents. 9. Admittedly petitioner is a destitute widow. Petitioner was also called for interview for selection to the post of Conductor as she was found eligible. The petitioner was aged 44 years at the time of interview and the petitioner's height was 161 cm and weight was 55 Kg. Petitioner also passed 10th standard (SSLC) and she was given four marks in the oral interview. The marks are awarded to all candidates by using pencil. However, the petitioner has not alleged any motive against the respondents by awarding marks through pencil. Hence I am not dealing with the pros and cons of awarding marks by using pencil. 10. The Government of Tamil Nadu issued G.O.Ms.No.89 P&AR Department dated 17.2.1989 by providing 30% of posts in direct recruitment in Government Departments/Government owned undertakings/Corporations/Societies and also in local bodies. The said 30% of the vacancies shall be set apart for woemn candidates following the existing reservation for SC/ST/BC/OC. The women candidates are also entitled to compete for the remaining 70% of the vacancies along with male candidates. It is further stated in the Government Order that if qualified and suitable women candidates belonging to SC/ST/BC/OC are not available for selection in the turn allotted for them in the cycle, the turn so allotted shall go to the male candidates within the respective category. Thus, it is evident that 30% of the vacancies are reserved for women candidates, which comes to 75 posts since the vacancies available for selection at that time was 250. Admittedly only three women candidates are selected and all other vacancies were given to male candidates. As per proviso to Rule 21(b) of the Tamil Nadu State and Subordinate Service Rules, ten percentage of vacancies earmarked for women, shall be set apart for destitute widows. From the said provision it is further evident that destitute widow shall be given the first posting in https://hcservices.ecourts.gov.in/hcservices/ every ten (10) vacancies reserved for women. The upper age limit is also relaxed by five years through G.O.Ms.No.98 P&AR Department, dated 17.7.2006 since there was a ban imposed by the Government earlier through G.O.Ms.No.212 P&A Department dated 29.11.2001, which was in force till February, 2006. 11. From the Government Orders referred above, it is clear that the petitioner is not only entitled to be considered under the General category O.C. and also under B.C.(Women), apart from preference under destitute widow category. Petitioner has produced destitude widow certificate issued by the Tahsildar, Saidapet, dated 21.8.1991. The only reason given by the respondent in the counter affidavit is that the petitioner has not secured minimum marks of five in the interview and the marks secured by the petitioner is only four and therefore she was not selected. Since it is an admitted fact that there is no rule prescribing minimum marks for selection in the interview, the respondents are not justified in contending that the petitioner has not secured the prescribed marks of five and she is not entitled to get selected. 12. Similar issue was considered by the Supreme Court in the decision reported in AIR 2008 SC 1470 (K.Manjusree v. State of A.P.) wherein minimum marks for interview was prescribed without prescription of the same in the rule of selection. The Supreme Court disapproved the prescription of minimum marks in the oral interview and directed to prepare a fresh list without reference to their marks in the written test and interview without applying any minimum marks for interview and directed to finalise selection in accordance with law. 13. In this case also there is no minimum marks prescribed under the rules. Even acccording to the counter affidavit, the Committee adopted a procedure to have minimum of five marks. The said procedure adopted by the Committee has no legal sanctity and the same is without any valid reason. 14. The question whether the post of conductor can be denied to a candidate on the ground of deformity in the left hip due to non- union neck or femur left and whether that will affect the performance of the duties of a conductor, and how the Court should approach those matters was considered by a Division Bench of the Madurai Bench of Madras High Court in the decision in W.A.(MD)No.317 of 2008 dated 22.7.2008 (P.Mahavishnu v. The General Manager, Tamil Nadu State Government Transport Corporation (Madurai) Ltd., Tirunelveli). The Division Bench in paragraphs 6 to 13 held as follows: "6. We are of the view that, in this matter, the manner in which discretion has been exercised https://hcservices.ecourts.gov.in/hcservices/ by the learned Judge does not have our approval. 7. It is also not in dispute that the petitioner has submitted a Medical Certificate issued by the Orthopaedic Surgeon, Government Medical College, Thoothukudi to the effect that the aforesaid alleged deformity does not prevent the petitioner from walking around and working as a Conductor. 8. It is common knowledge that as a result of the deformity, which is alleged against the petitioner, his gait, if at all, may become a little inartistic. The petitioner is not appointed as a dance trainer but only as a Conductor in a bus and he satisfies all other requirements. 9. It cannot be disputed that in the present day grim situation of unemployment, a person's opportunity to be employed has been equated by the Apex Court as his right to life under Article 21 of the Constitution of India. So, by denying employment to the petitioner, virtually, his fundamental right to life is sought to be taken away solely on the aforesaid technical consideration. 10. The Apex Court has repeatedly emphasised that when a person is denied his fundamental rights, such denial has to be based on a procedure which is just, reasonable and fair. There is no fixed standard of fairness. Fairness has to be judged in the facts and circumstances of each case and in judging the fairness of a procedure, the Court must have due consideration of the entire facts and circumstances of the case, including the societal condition in which the parties are placed. The case of a person, who is trying to eke out his living by accepting the job of a bus conductor must be judged with a standard of a fairness which is obviously a little different from the cases of business barons or those of corporate magnets. In the cases of persons who are lowly placed the courts have a duty to stretch the law as far as possible, without violating it, to give relief to those persons. 11. Going by the aforesaid consideration, this Court finds that the decision of the respondent in the instant case in refusing the employment to the petitioner on the grounds https://hcservices.ecourts.gov.in/hcservices/ mentioned above does not meet the standards of fairness of any person of ordinary prudence. Unfortunately, the learned Judge did not approach the issues involved in this case from this angle. 12. It is left to this Court to interpret and apply the rule in the light of Human Rights jurisprudence incorporated by the Apex Court in our laws and as a result of which the right to life has received a very liberal interpretation. So, we are constrained to take a different view from the one which has been taken by the learned Judge. 13. In these facts and circumstances of the case, we direct the respondent to give appointment to the petitioner/appellant to the post of Conductor since the candidature of the petitioner is free from any other defect except the one pointed out in the order under the appeal. Such appointment should be offered to the petitioner/appellant within a period of four weeks from this date." 15. It is evident from the facts in this case that the Transport Corporations, which are fully owned by the Government of Tamil Nadu, are not following the two policy decisions of the Government. The first one is, not providing 30% of Conductor posts to women candidates, though the Government through G.O.Ms.No.89 P&AR Department, dated 17.2.1989 ordered to give 30% of posts to women. The said Government Order reads as follows: "GOVERNMENT OF TAMIL NADU ABSTRACT PUBLIC SERVICES - Appointments - Recruitment of Women - Orders Issued. ------------------------------------------------------- ---------------------------------------------- PERSONNEL AND ADMINISTRATIVE REFORMS (PERSONNEL.S) DEPARTMENT G.O.Ms.No.89 Dated the 17th February, 1989 ORDER: The Government direct that a minimum of 30% of all future vacancies in Government Departments/Government Owned Undertakings/ Corporations/Societies and also in Local Bodies, which are to be filled through direct recruitment shall be set apart for women candidates irrespective of the fact whether the rule of reservation applies to the posts or not. In respect of the posts to which the rule of reservation applies, the https://hcservices.ecourts.gov.in/hcservices/ 30% of the vacancies shall be set apart for women candidates following the existing reservation for Scheduled Castes and Scheduled Tribes, Backward Classes and Open Competition. Women candidates will also be entitled to compete for the remaining 70% vacancies along with men candidates. 2. The order of rotation to be followed shall be as specified in the annexure to this order. 3. If a qualified and suitable woman candidate belonging to Scheduled Castes/Scheduled Tribes or Backward Classes or Open Competition is not available for selection for appointment in the turn allotted for them in the cycle, the turn so allotted shall go to the male candidate within the respective category. In respect of the posts to which the rule of reservation does not apply the turn so allotted shall go to the next male candidate. 4. This order shall take immediate effect. 5. Formal amendment to the Tamil Nadu State and Subordinate Services Rules shall be issued separately. (BY ORDER OF THE GOVERNOR) M.M.RAJENDRAN, CHIEF SECRETARY TO GOVERNMENT" 16. Secondly, the respondents failed to follow the rule of reservation in giving appointment to the destitute widows in terms of proviso to Rule 21(b) of the Tamil Nadu State and Subordinate Service Rules, as stated supra. In the reply furnished by the third respondent dated 17.12.2007 it is stated that no destitute widow is selected. Had the respondents 1 and 2 followed the above policy decisions, the petitioner might have been selected as Conductor as she is eligible to be appointed as Conductor. At least in future, the Government must see that those policy decisions are implemented by the Transport Corporations and by the Public Sector Undertakings. 17. Applying the principle laid down by the Division Bench cited supra to the facts of this case i.e., petitioner being a destitute widow; a women candidate appeared for interview for which 75 conductor post are reserved for women candidates, however only three candidates were appointed' and the petitioner is denied appointment only on the ground that she has not secured minimum of five marks in the interview; and having regard to the fact that no minimum mark is prescribed under any rule for selection to the post of conductor, the non-selection of the petitioner to the post of conductor is to be treated as illegal. https://hcservices.ecourts.gov.in/hcservices/ 18. In view of the above findings, a direction is issued to the second respondent to select and appoint the petitioner as Conductor and necessary order to that effect is directed to be passed by the second respondent within a period of two weeks from the date of receipt of copy of this order. The writ petition is ordered on the above terms. No costs. Connected miscellaneous petitions are closed. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar vr To 1. The Joint Managing Director, Metropolitan Transport Corporation (Chennai) Ltd., An Undertaking of the Government of Tamil Nadu, Anna Salai, Chennai - 600 002. 2. The General Manager, Metropolitan Transport Corporation (Chennai) Ltd., Anna Salai, Chennai - 600 002. 3. The Assistant Director, Office of the District Employment Office, 56/140, Santhome High Road, Chennai – 4. +1 cc to Mr.G.Rajan, Advocate, SR.No.46197 Order in W.P.No.426 of 2008 TS(CO) SMK/28.8.08 https://hcservices.ecourts.gov.in/hcservices/