IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.08.2010 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NO.2958 OF 2010 R.Rajesh ... Petitioner Versus 1.The Secretary Tamil Nadu Public Service Commission Omandurar Estate Chennai. 2.The Principal Secretary Department of Rural Development St. George Fort, Chennai. 3.C.Kalaivani (District Employment Officer) ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorarified Mandamus calling for the records of the 1st respondent selection cum waiting list dated 03.06.2009 and quash the same in so for selecting the 3rd respondent herein as Assistant Director of Rural Development in the SC General quota and direct the 1st respondent to appoint the petitioner as Assistant Director of Rural Development under the SC General reserve list. For Petitioner : Mr.R.Shanmugam Senior counsel for Mr.T.C.Gopalakrishnan For Respondent-1: Ms.C.N.G.Niraimathi For Respondent-2: Mrs.Lita Srinivasan Government Advocate For Respondent-3: Mr.V.Venkatesan https://hcservices.ecourts.gov.in/hcservices/ O R D E R The first respondent issued a notification dated 01.08.2007 calling for applications to fill the vacancies for various posts included in Grade – I Services for the year 2006- 2007. Pursuant to the said notification, the petitioner applied for the same. The petitioner was successful in the preliminary examination; written examination and also in the oral test. In total, he secured 387.5 out of 680 marks. The petitioner belongs to Scheduled Caste. His rank was 226 in General category and 19 in SC category. He was selected as Deputy Registrar of Co- operative Societies. 2.While the petitioner was selected as Deputy Registrar of Co-operative Societies, he stood No.1 in the reserve list for the post of Assistant Director of Rural Development under SC General category. There are 29 vacancies in the Assistant Director of Rural Development post. Out of 29 vacancies, 5 vacancies are earmarked for SC category. Among 5 vacancies, 3 are for SC General category and 2 are for SC Women category. The marks obtained by the 5 persons, selected to the post of Assistant Director against SC category and the ranking are as follows:- 1)Ms.Vembu - 403 marks - 23rd rank 2)Mr.Easwaran - 390 marks - 26th rank 3)Mr.Jeyaraman - 388.50 marks - 27th rank 4)Ms.Loganayaki - 382 marks - 28th rank 5)Ms.Ramyadevi - 381 marks – 29th rank While the petitioner was kept in the SC General reserve list, the third respondent herein was kept in the SC Women reserve list. The third respondent obtained 379.5 marks, while the petitioner obtained 387.5 marks. 3.Though one Ms.Vembu is a woman, she was selected against SC General category, as she obtained highest marks among all the SC candidates. However, Ms.Vembu did not join the post. Hence, a vacancy arose due to her non-joining the post. 4.The third respondent - Ms.Kalaivani was selected in the vacancy that arose due to the non-joining of Ms.Vembu and she was appointed as Assistant Director of Rural Development. The petitioner is aggrieved over the selection and appointment of third respondent as Assistant Director of Rural Development as the vacancy arose in SC General category and the third respondent obtained lesser marks than the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 5.In these circumstances, the petitioner filed the present writ petition seeking to quash the selection and appointment of the third respondent as Assistant Director of Rural Development and for a consequential direction to the first respondent to appoint him as Assistant Director of Rural Development under the SC General category from the SC General reserve list. 6.The writ petition was admitted on 16.02.2010. The first respondent has filed counter affidavit. 7.Heard Mr.R.Shanmugam, learned senior counsel for the petitioner; Ms.C.N.G.Niraimathi, learned counsel for the first respondent; Mrs.Lita Srinivasan, learned Government Advocate for the second respondent and Mr.V.Venkatesan, learned counsel for the third respondent. 8.It is stated in the counter affidavit that though Ms.Vembu was selected against SC General category, she was fitted against SC Women category in the 100 point roster prepared as per Schedule – III read with Rule 22 of the Tamil Nadu State and Subordinate Service Rules (in short "the Rules"). Since Ms.Vembu was fitted in SC Women category in the roster point, the third respondent from SC Women category was selected in the vacancy caused due to the non-joining of Ms.Vembu. The details of the roster points to which the selected candidates were allotted and the category to which the roster point belongs to have been stated in the counter affidavit and the same are as follows: "Name of the candidate Roster point Category Ms.Vembu 6th SC (W) Mr.Easwaran 16th SC Ms.Loganayaki 22nd SC (W) Mr.Jayaraman 26th SC Ms.Ramyadevi 32nd SC " According to the first respondent, there is no illegality in selecting the third respondent in the vacancy caused due to the non-joining of Ms.Vembu. 9.The learned senior counsel for the petitioner submits that the petitioner ought to have been included in the very first selection list itself, as he obtained more marks than Ms.Ramyadevi. He has no objection for selecting Ms.Loganayaki though she also obtained less marks, as two posts were earmarked for SC Women category and the selection of Ms.Vembu and Ms.Loganayaki against those posts were correct. But the selection of Ms.Ramyadevi is illegal. In this regard, the judgment of the Honourable Apex Court in RAJESH KUMAR DARIA VS. RAJASTHAN PUBLIC https://hcservices.ecourts.gov.in/hcservices/ SERVICE COMMISSION reported in 2007 (8) SCC 785 is relied on by the learned senior counsel for the petitioner. In any event, the learned senior counsel submits that when Ms.Vembu was selected against General category and Ms.Loganayaki and Ms.Ramyadevi were selected against SC Women category, the vacancy that was caused due to the non-joining of Ms.Vembu should have been allotted to the petitioner. 10.On the other hand, the learned counsel representing the first respondent – TNPSC vehemently contends that they strictly followed Rule 21(b) of the Rules which provides for reservation for women in the matter of appointments. She also submits that Rule 21(b) was upheld by the Division Bench of this Court in G.VIJAYARAGHAVAN VS. THE STATE OF TAMIL NADU in W.P.No.18399 of 2008 (decided on 23.07.2009). According to her, 30% of vacancies in SC, ST, BC, MBC and General category have to be earmarked for women as per Rules. Further, it is submitted that 30% is minimum and the women could compete for the remaining 70% of the vacancies among the male candidates. Thus, there is no illegality in appointing Ms.Ramyadevi against SC Women category, as two posts were earmarked for SC women and Ms.Vembu was selected against SC General category. 11.The learned counsel representing the first respondent further submits that in view of Rule 21(b) of the Rules, the judgment of the Honourable Apex Court in RAJESH KUMAR DARIA VS. RAJASTHAN PUBLIC SERVICE COMMISSION reported in 2007 (8) SCC 785, as relied on by the learned counsel for the petitioner is not applicable to the facts of this case. 12.The learned counsel for the first respondent further submits that in view of the amendment made to 4th proviso to Rule 22 of the Rules by G.O.Ms.No.27, Personnel and Administrative Reforms (S) Department, dated 18.02.2008, the selection and appointment of the third respondent in the vacancy caused due to the non-joining of Ms.Vembu, who was fitted in SC Women roster point, is perfectly in order. 13.The learned counsel for the first respondent fairly submits that though the third respondent was appointed in the vacancy caused due to non-joining of Ms.Vembu, she was not fitted in the roster point to which Ms.Vembu was allotted. Ms.Vembu was allotted the highest position by giving roster point No.6 meant for SC Women. But the third respondent was not given 6th roster point meant for SC Women and she was given roster point at 34(A), since the 29 persons were selected against roster points between 5 and 34. She further submits that pursuant to the order of this Court, a candidate, who appeared in the last selection, was accommodated against 12th roster point. In this regard, the https://hcservices.ecourts.gov.in/hcservices/ judgment of the Honourable Apex Court in BIMLESH TANWAR VS. STATE OF HARYANA reported in 2003 AIR SCW 1508 is relied on by the learned counsel for the first respondent. 14.I have considered the submissions made on either side. It is not disputed that the petitioner obtained more marks than Ms.Loganayaki, Ms.Ramyadevi and Ms.Kalaivani, the third respondent herein. Though there was no pleading that the selection of Ms.Ramyadevi is bad, it is sought to be argued that the selection of Ms.Ramyadevi is bad. It is also relevant that Ms.Ramyadevi is not made as a party to the writ petition. 15.The learned senior counsel for the petitioner, getting inspiration from the judgment of the Honourable Apex Court reported in 2007 (8) SCC 785 advanced arguments that the selection of Ms.Ramyadevi itself is illegal and the petitioner ought to have been selected in the place of Ms.Ramyadevi, instead of keeping him in the reserve list. The said judgment relates to appointments made in Judicial Services in Rajasthan. The Honourable Apex Court, while considering the Service Rules therein, held that the reservation for Women, Physically Handicapped persons, Ex- servicemen are called horizontal reservation, while the reservation for SC, ST, BC and MBC are called vertical reservation. It is also held that when horizontal reservation is provided, the methodology could not be adopted in filling up the posts in horizontal reservation as was done in vertical reservation. In that case, 59 posts were earmarked for General category. Among the 59 posts, 11 posts were earmarked for Women. The merit list was prepared for 48 persons. Even among the 48 persons, there were 11 women candidates. Besides appointing those 11 women, 11 more women were appointed against General category. Those 11 additional women were appointed among the women candidates, though they obtained lesser marks than male candidates. The Honourable Apex Court, while interpreting the Service Rules, held that the method adopted was not correct. The merit list should be prepared for all the 59 vacancies. If 11 women are found among the 59 candidates, then that could satisfy the horizontal reservation provided to women category. The said judgment is relied on by the learned senior counsel for the petitioner to advance argument that the selection of Ms.Ramyadevi itself is bad. 16.According to the petitioner, though Ms.Loganayaki also obtained less marks than petitioner, she could be accommodated along with Ms.Vembu against the horizontal reservation meant for women. https://hcservices.ecourts.gov.in/hcservices/ 17.In my view, the learned senior counsel for the petitioner is estopped from advancing this argument, without making Ms.Ramyadevi as a party to the writ petition and without making any averments in this regard. Thus, the argument of the learned senior counsel for the petitioner is rejected. 18.Hence, I am not going into the submissions made by the learned counsel for the first respondent that Rule 21(b) of the Rules provides a minimum of 30% reservation for Women and that therefore, the judgment of the Honourable Apex Court reported in 2007 (8) SCC 785 is not applicable to the appointments made under the Service Rules applicable in Tamil Nadu. 19.The marks obtained by the Scheduled Caste candidates including Scheduled Caste women candidates, the ranking list in the selection, the roster point and the category assigned in the roster point as well as the general rank indicating the merit are given below: "Scheduled Caste Category Fitment:- Roste r turn Categor y Mark detail s Categor y adjuste d Genera l rank Name S.No. in the post wise ranking list 6th SC (W) 403.00 139 Vembu 23 16th SC 390.00 216 Easvaran 26 22nd SC (W) 382.00 258 Loganayak i 28 26th SC 388.50 224 Jayaraman 27 32nd SC 381.00 Women 263 Ramyadevi 29 The petitioner and the third respondent herein, were not in the selection list. Admittedly, the general rank of the petitioner, according to the merit list is 226 and the general rank of the third respondent is 266. 20.According to the learned counsel for the first respondent, a minimum of 30 % vacancies among SC were provided to SC Women and that is why, Ms.Loganayaki and Ms.Ramyadevi were selected besides the selection of Ms.Vembu. 21.Rule 21(b) of the Tamil Nadu State and Subordinate Services Rules is extracted hereunder: "21.Appointment of women – (a) Women alone shall be appointed to post in any institution or https://hcservices.ecourts.gov.in/hcservices/ establishment specially provided for them; Provided that men may be appointed, if suitable and qualified come are not available for such appointment. (b) A minimum of 30 percent of all vacancies which are to be filled through direct recruitment shall be set apart for women candidates irrespective of the fact whether the rule of reservation of appointments applies to the posts or not. In respect of the posts to which the rule of reservation of appointments applies, 30 percent of vacancies shall be set apart for women candidates following the existing reservation for Scheduled Castes and Scheduled Tribes, Backward Classes, Most Backward Classes / Denotified communities and General Turn. Women Candidates shall also be entitled to compete for the remaining 70 percent of vacancies along with male candidates. Provided that in the case of direct recruitment to the posts in the scale of pay, the minimum of which does not exceed Rs.4000/-, ten percent of vacancies out of thirty percent vacancies set apart for women shall be set apart for destitute widows and the first vacancy in every ten vacancies set apart for destitute widows and the first vacancy in every ten vacancies set apart for women in each category namely the General Turn, Backward Classes, Most Backward Classes/Denotified Communities, Scheduled Castes or Scheduled Tribes shall be set apart for destitute widows. If no qualified and suitable destitute widow is available, the turn so set apart for destitute widow shall go to the women (other than destitute widow) belonging to the respective category." 22.That is, even according to the learned counsel for the first respondent, Ms.Vembu was selected not against SC Women category and on the other hand, she was selected against SC General category. When the vacancy arose due to her non-joining the post, the same has to be filled by treating it as SC General category. In SC General category, both males and females candidates could contest. Thus, if the third respondent obtained more marks than the petitioner, she could claim the post in the vacancy that was caused due to the non-joining of Ms.Vembu. Admittedly, the third respondent obtained less marks. Hence, she https://hcservices.ecourts.gov.in/hcservices/ lost the race. The petitioner alone is entitled to be appointed in the vacancy that is caused due to the non-joining of Ms.Vembu. 23.The justification given for appointing the third respondent in the vacancy caused due to the non-joining of Ms.Vembu is on the sole ground that she was fitted against the SC Women in the roster point. 24.Though Ms.Vembu was selected against SC General category, she was assigned roster point No.6 meant for SC Women, as she obtained highest marks among all the SC candidates. As stated above, the selection of 29 Assistant Directors' were fitted in the roster points between 29 and 34 and the roster point No.12 was filled by appointing a person who appeared for selection in the 1996-1997 recruitment pursuant to the order of this Court. 25.According to the first respondent, placing Ms.Vembu at roster point No.6 is in order; since Ms.Vembu did not join and since that point is meant for SC Women, only SC Woman alone has to be filled in the vacancy. Placing Ms.Vembu who was selected against SC General category at the roster point meant for SC Women, as she obtained highest marks, is justified, based on the judgment of the Honourable Apex Court in BIMLESH TANWAR VS. STATE OF HARYANA reported in 2003 AIR SCW 1508. 26.Justifying their action in fitting Ms.Vembu at roster point No.6 meant for SC women, though she was selected against SC General category, reliance is made to para 34 of the judgment of the Honourable Apex Court reported in 2003 AIR SCW 1508 wherein, the Honourable Apex Court disapproved the decision rendered by the two learned Judges of the Honourable Apex Court in P.S.GHALAUT VS. STATE OF HARYANA reported in 1995 (5) SCC 625. In this regard, para 34 of the judgment of the Honourable Apex Court reported in 2003 AIR SCW 1508 is extracted hereunder: "34.P.S. Ghalaut v. State of Haryana & Ors. (1995 (5) SCC 625) relied upon by Dr Chauhan, is a decision rendered by a two-Judge Bench. In that case Rule 13 of the Rules envisaged that the seniority inter se of members of the service shall be determined by the length of continuous service on any post in the service; provided further that in the case of two or more members appointed by direct recruitment, the order of merit determined by the Commission shall not be disturbed in fixing the seniority. Despite the said rule, it was held: https://hcservices.ecourts.gov.in/hcservices/ “Take for instance Vacancies Nos. 1 and 6, as pointed out in Chief Secretary’s letter have admittedly been reserved for Scheduled Castes. Suppose recruitment was made to fill up ten vacancies, three candidates from Scheduled Castes were selected. The first one as general and second and third were selected on the basis of reserved quota. The question is whether the first candidate will be put in the quota allotted to the Scheduled Castes in the roster. Having been selected as a general candidate, though he is more meritorious than the second and third candidates, he will not get the placement in the roster, reserved for Scheduled Castes i.e. Nos. 1 and 6 points. Consequently Candidates 2 and 3 will get the placement at Nos. 1 and 6 and the first candidate will get the placement in the order of merit along with the general candidates according to the order of merit maintained by the Selection Committee or the Public Service Commission. He cannot complain that having been selected in the merit, he must be placed in the placement reserved for Scheduled Castes at Point No. 1 in the roster. Equally, though general candidate is more meritorious in the order of merit prepared by the Public Service Commission or the Selection Committee, when the appointments are made and the vacancies are filled up according to the roster, necessarily and inevitably the reserved candidates though less meritorious in the order of merit maintained by the Public Service Commission would occupy the respective places assigned in the roster. Thereby they steal a march over some of the general candidates and get seniority over the general candidates. This scheme is, therefore, constitutional, valid and is not arbitrary.” We have not been able to persuade ourselves to the aforesaid view." 27.According to me, nobody disputes about the action of the first respondent in fixing Ms.Vembu against roster point No.6 https://hcservices.ecourts.gov.in/hcservices/ meant for SC Women, though she was selected against SC General category. In fact, the selected candidates, who were assigned roster points below her, did not question the same, as admittedly Ms.Vembu obtained higher marks than all the SC candidates. Therefore, there is no dispute over the fixation of Ms.Vembu at roster point No.6 meant for SC Women on her selection against SC General category. It is also true that the said action is supported by the decision of the Honourable Apex Court reported in 2003 AIR SCW 1508, para 34 referred to above. 28.But the approach of the first respondent in treating the vacancy as SC Women is erroneous, as Ms.Vembu was selected against SC General category. It is a different matter, if either Ms.Loganayaki or Ms.Ramyadevi did not join the post. Then it should be filled from only among the candidates from the waiting list of SC Women reserve list. In that event, the petitioner could have no grievance and he could not say that since he obtained more marks, he should be appointed in the place of Ms.Loganayaki or Ms.Ramyadevi. In this case, the vacancy caused is due to non-joining of Ms.Vembu. Just because, she was fitted against SC Women roster point, her selection against SC General category could not vanish. 29.The third respondent's selection is bad, because she obtained less marks than the petitioner and the vacancy is the one that arose in SC General category. In fact, paras 37 and 47 of the judgment reported in 2003 AIR SCW 1508 supports the case of the petitioner. "37.An affirmative action in terms of Article 16(4) of the Constitution is meant for providing a representation of a class of citizenry who are socially or economically backward. Article 16 of the Constitution of India is applicable in the case of an appointment. It does not speak of fixation of seniority. Seniority is, thus, not to be fixed in terms of the roster points. If that is done, the rule of affirmative action would be extended which would strictly not be in consonance of the constitutional schemes. We are of the opinion that the decision in P.S. Ghalaut does not lay down a good law. 47..............In the instant case, Respondents 8 to 11 admittedly were more meritorious. They were unjustly deprived of their right of appointment, although they were entitled thereto having regard to Rule 10 of the Rules. They suffered for no fault on their part. They https://hcservices.ecourts.gov.in/hcservices/ had to approach the High Court for ventilating their grievances. The High Court directed the first respondent herein to make appointment and only pursuant thereto and in furtherance thereof they were appointed. Should they in the aforementioned situation be permitted to lose their seniority is the question involved in this appeal. The answer thereto must be rendered in the negative. Long-standing practice as well as justice and equity favour the respondents. It is beyond any cavil that merit has a role to play in the matter of determination of inter se seniority." The said case was relating to the inter se seniority between the general turn candidates and the reserved candidates. Hence, the judgment, as such, is not applicable to the facts of this case. However, the observation made in paras 37 and 47 supports the case of the petitioner. Though he obtained more marks, he is deprived of his selection to the post of Assistant Director. Otherwise, injustice done to the petitioner could not be remedied. 30.It is seen that the first respondent admits that the third respondent is not given the same roster point at No.6 and she is given roster point No.34(A). There is no 34(A) in the roster. Now for administrative convenience, it is created as 34 (A). Such a creation is recognized in G.O.Ms.No.146, Personnel and Administrative Reforms (S) Department, dated 13.09.2006. The reason is that Ms.Kalaivani, the third respondent herein, could not be fixed at roster point No.6, since she obtained less marks. The reason for fixing Ms.Vembu at roster point No.6 is due to her obtaining the highest marks. 34(A) could be SC General or SC Women or General or BC or MBC category. That is, if any person in General category / BC category / MBC category did not join and a person from the reserve list is appointed, he has to be assigned the roster point 34A or 34B or...., as the selected candidates were fitted between roster points 29 and 34. 31.In this case, the selection of Ms.Vembu was against General category. Hence, the selection of third respondent to the post of Assistant Director of Rural Development is bad and the same is set aside. The first respondent is directed to select and appoint the petitioner to the post of Assistant Director of Rural Development, within a period of four weeks from the date of receipt of a copy of this order. https://hcservices.ecourts.gov.in/hcservices/ 32.The writ petition is allowed on the above terms. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. TK To 1.The Secretary Tamil Nadu Public Service Commission Omandurar Estate Chennai. 2.The Principal Secretary Department of Rural Development St. George Fort, Chennai. 1 cc to Mrs. C.N.G. Niraimathi, Advocate, Sr. 58028 1 cc to Mr.T.C. Gopalakrishnan, Advocate, Sr. 57520 W.P.NO.2958 OF 2010 VS (CO) kk 25/8 https://hcservices.ecourts.gov.in/hcservices/