IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.04.2010 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN W.P.Nos.26963 & 26535 of 2009 W.P.No.26963 of 2009: 1. Union of India rep.by Government of Puducherry through the Secretary to Government for Public Works Department Puducherry 2. The Chief Engineer Public Works Department Puducherry .. Petitioners -vs- 1. Central Administrative Tribunal by its Registrar, Madras Bench 2. S.Vengadeswaran 3. N.Jayaraman .. Respondents Petition under Article 226 of The Constitution of India, praying for the issue of a Writ of Certiorari, calling for the records of the first respondent Tribunal dated 19.8.2009 in O.A.No.527 of 2008 and to quash the same. For Petitioners :: Mr.R.Syed Mustafa Additional Government Pleader (Puducherry) For Respondents :: Mr.V.Ajayakumar for R2 Mr.Karthik Rajan for R3 W.P.No.26535 of 2009: N.Jayaramanan .. Petitioner -vs- 1. The Registrar Central Administrative Tribunal Madras Bench, Chennai https://hcservices.ecourts.gov.in/hcservices/ 2. Union of India rep.by Government of Pondicherry through the Secretary to Government for Public Works Department Puducherry 3. The Chief Engineer Public Works Department Puducherry 4. S.Vengadeswaran .. Respondents Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorari, calling for the records of the 1st respondent Tribunal in O.A.No.527 of 2008 and quash the order passed in O.A.No.527 of 2008 dated 19.8.2009. For Petitioner :: Mr.Karthik Rajan For Respondents :: Mr.R.Syed Mustafa Additional Government Pleader (Puducherry) for R2 & R3 Mr.V.Ajayakumar for R4 ORDER D.MURUGESAN, J. Both the writ petitions pertain to the filling up of the post of Draughtsman Grade-II in the Public Works Department, Puducherry. The issue arises under the following circumstances. The Chief Engineer, Public Works Department, Puducherry issued a notification dated 31.7.2006 calling for applications for the post of Draughtsman and the total vacancies notified were 25. The details of the vacancies were as follows: General - 14 Other Backward Classes - 7 (MBC – 4, OBC – 3) Scheduled Caste - 4 Among those vacancies, 3 vacancies were horizontally reserved for Ex- Servicemen, 1 vacancy for Physically Handicapped person and 1 for Meritorious Sportsperson. One Thiru S.Vengadeswaran, the applicant before the Central Administrative Tribunal in O.A.No.527 of 2008 (hereinafter referred to as "the applicant") is a degree holder in Civil Engineering and he also possesses a Diploma in Civil Engineering. As per the eligibility and other qualifications, he is eligible and fully qualified for the post of Draughtsman. He applied to the said post and his name was also sponsored by the employment exchange. Along with him, one N.Jayaraman, the third respondent in the original application (hereinafter referred to as "the third respondent) also applied. The said Jayaraman was selected as against the one vacancy reserved for meritorious sportsperson. A list containing the names of 22 candidates selected for the posts was published on 27.12.2006. As the select list did not contain the name of the applicant, he was under the impression that his name would be https://hcservices.ecourts.gov.in/hcservices/ considered as against the one vacancy reserved for meritorious sportsperson, as he was the winner in the 20th Senior Men's National Atya-Patya Championship held during 2005-2006 and he also participated in the 47th Winter National Bridge Championship held in Chennai. Further, he had participated in the VIII State Atya-Patya Championship. He was awarded gold medal as well. 2. As his name was not even considered as against the seat reserved for meritorious sportsperson and the name of the candidate selected against the said vacancy was not known, he sought information under the Right to Information Act and he was informed that the third respondent was appointed to the said vacancy. He also came to know that the third respondent had only participated in the National Sports and he was not a winner. In terms of the Office Memorandum dated 4.8.80, which was further clarified by a subsequent Office Memorandum dated 4.5.95, the applicant ought to have been considered in preference to the third respondent. Hence he approached the Central Administrative Tribunal challenging the selection of the third respondent and for a further direction that he should be appointed to the post of Draughtsman as against the one vacancy reserved for meritorious sportsperson. That application was allowed and the selection of the third respondent was set aside with a further direction that the applicant should be appointed to the said post. This order is questioned by the Union Territory of Puducherry in W.P.No.26963 of 2009 (hereinafter referred to as "the official respondents"). As the selection and appointment of the third respondent was set aside, he has filed W.P.No.26535 of 2009. As both the writ petitions concern with the same order, they are taken up together and disposed of by this order. 3. We have heard Mr.R.Syed Mustafa, learned Additional Government Pleader (Puducherry) for the petitioner in W.P.No.26963 of 2009, namely, the official respondents, Mr.Karthik Rajan, learned counsel for the petitioner in W.P.No.26535 of 2009, namely, the third respondent and Mr.V.Ajayakumar, learned counsel for the contesting respondent in both the writ petitions, namely, the applicant. 4. As far as the eligibility, educational qualifications including essential and desirable educational qualifications, age limit, registration with employment exchange and nativity of both the applicant and the third respondent, there is no dispute. The dispute is only in regard to the method of selection. The relevant paragraph of the notification relating to the method of selection is as follows:- "7. Method of Selection: The candidates who are found eligible in all respects as per the eligibility conditions mentioned above only will be called for the written examination. The actual date, venue and time will be intimated in due course." According to Mr.R.Syed Mustafa, learned Additional Government Pleader (Puducherry), the total number of posts advertised were 25. The applicant stakes his claim in the petition for selection to the one vacancy reserved for meritorious sportsperson. In terms of the https://hcservices.ecourts.gov.in/hcservices/ provisions of method of selection, only such of those candidates who are found eligible in all respects as per the eligibility conditions mentioned in the notification alone will be called for written examination. Therefore, even for consideration as against the one vacancy reserved for meritorious sportsperson, the candidates shall take the written examination and only the candidate who secures higher marks will be selected. He has further submitted that the third respondent had secured 58 marks out of 100 marks and he was a meritorious sportsperson in carrom event, whereas the applicant was a participant in Atya-Patya event and had secured only 46 marks out of 100 marks in the written examination. Hence the third respondent was selected and appointed to the post of Draughtsman. The selection was on the basis of the notification and the applicant who had secured lesser marks than the third respondent, cannot question the selection, especially when he does not question the notification. Mr.Karthik Rajan, the learned counel for the third respondent has also defended the selection and opposed the petition on the above grounds. 5. On the other hand, Mr.V.Ajayakumar, learned counsel for the applicant would contend that though the method of selection as notified did not contain any procedure to follow the order of preference among the meritorious sportspersons, the official respondents are bound by the Office Memorandum dated 4.5.95 prescribing the order of preference in selection of the candidates. By that order of preference, the applicant, who had participated in Atya-Patya event at the national level and had won gold medal, ought to have been selected in preference to the third respondent, who had only participated in the national Carrom event. 6. As the submissions are restricted only in respect of consideration of both the applicant and the third respondent to the post of Draughtsman as against the one vacancy reserved for meritorious sportsperson, we are not considering the selection of candidates against other vacancies. As far as the meritorious sportsperson is concerned, there is no dispute that the applicant had participated in the 20th Senior Men's National Atya-Patya Championship held during 2005-2006 and secured first place. He had also participated in the 47th Winter National Bridge Championships-2005 held in Chennai. Further, he had participated in the VIII State Atya- Patya Championship. He had also won a gold medal in the national level Atya-Patya championship held during 2005-2006. As against the merits of the applicant, the third respondent had only participated in the Union Territory Championship held during 1993 in Carrom event and secured first place. During 1994, he participated in the State Championship and secured first place. He had also participated in State Championship during 1995 and secured second place. He participated in Junior Nationals in 1994 and Senior National Championship in 1998. Though he had participated in the State Championship on three occasions and at the national level on two occasions, he had not won any gold medal. 7. Keeping the above achievements in sports in mind, the respective claims should be considered. Of course, in the notification, the method of selection is prescribed. By the method of selection, all the candidates seeking for selection to the post https://hcservices.ecourts.gov.in/hcservices/ should take the written examination. The question is whether a candidate, as against the one vacancy reserved for meritorious sportsperson, should be considered on the basis of the marks obtained in the written examination or as per the order of preference as provided in the Office Memorandum dated 4.5.95. Earlier the Government of India issued an Office Memorandum dated 4.8.80 prescribing the method of selection of meritorious sportsperson. The said Office Memorandum relating to the appointment of meritorious sportspersons in relaxation of Recruitment Rules, prescribed a scheme for such appointment to fill up some vacancies in Group 'C' and Group 'D' posts. That scheme prescribed the eligibility criteria and order of preference. The norms relating to eligibility criteria and order of preference were revisited and the Office Memorandum No.14034/95- Estt.(D), dated 4.5.95 was issued. That Office Memorandum reads as follows: "Subject:--Order of preference for appointment of meritorious sportspersons to Groups 'C' and 'D' posts in relaxation of Recruitment Rules. The undersigned is directed to say that the scheme for appointment of meritorious sportspersons under Government is contained in this Department's O.M.No.14015/1/76-Estt.(D) dated 4.8.1980, as amended from time to time. A complete list of games/sports covered by the scheme was circulated with this Department's O.M.No.14034/1/91-Estt.(D) dated 21.3.1991. 2. In order to facilitate proper selection of sportspersons, it has been decided that sportspersons who fulfil the eligibility conditions laid down in Para 1 of this Department, OM, dated 4.8.1980, referred to above shall be considered in the following order of preference:-- (a) First preference to those candidates who have represented the country in an International Competition with the clearance of the Department of Youth Affairs and Sports. (b) Next preference may be given to those who have represented a State/UT in the Senior or Junior Level National Championships organized by the National Sports Federations recognized by Department of Youth Affairs and Sports or National Games organized by Indian Olympics Association and have won medals or positions up to 3rd place. Between the candidates participating in Senior and Junior National Championships/Games, the candidates having participated and won medal in Senior National Championship should be given preference. https://hcservices.ecourts.gov.in/hcservices/ (c) Next preference may be given to those who have represented a University in an Inter- University competition conducted by Association of Indian Universities/Inter University Sports Board and have won medals or positions up to 3rd place in finals. (d) Next preference may be given to those who have represented the State Schools in the National Sports/Games for Schools conducted by the All India School Games Federation and have won medals or positions up to 3rd place. (e) Next preference may be given to those who have been awarded National Award in physical efficiency under National Physical Efficiency Drive. (f) Next preference may be given to those, who represented a State/Union Territory/ University/State School Teams at the level mentioned in categories (b) to (d) but could not win a medal or position, in the same order of preference. Note 1.-- In the event of tie, those who have secured a higher position or won more than one medal may be given the preference. Note 2.-- Participation in individual and team event/item may be given the same preference. Note 3.-- No preference may be given for winning more than one medal/position. Note 4.--In case of any doubt about the status of a tournament, the matter will be decided by the Department of Personnel and Training in consultation with Department of Sports and Youth Affairs. 3. All other conditions relating to eligibility, appointment, seniority, etc., laid down in the OM dated 4.8.1980, as amended from time to time, remain the same. 4. The above instructions may be brought to the notice of all concerned for information and necessary action." 8. It is not the case of the official respondents that the said Office Memorandum is not applicable to the selection made by Government of Puducherry. In terms of paragraph-2 of the Office Memorandum, consideration of the eligible candidates for the post should be on the basis of the order of preference, namely, a candidate who falls under clause (a) will exclude the other https://hcservices.ecourts.gov.in/hcservices/ candidates falling under the rest of the clauses (b) to (f). Likewise, a candidate falling under clause (b) excludes the candidates falling under the rest of the clauses (c) to (f). The same method of preference shall be followed in respect of the other candidates as well. In view of the achievements at the national level sports championship and had won a gold medal, the applicant should fall under clause 2(b) of the Office Memorandum. The third respondent, who had only participated in the national level championship and had not won any medal, should fall under clause 2 (f). In terms of the Office Memorandum, the applicant, who falls under clause 2(b), will exclude the rest of the candidates falling under clauses (c) to (f) and should have been preferred for selection to the post as against the third respondent, who falls only under clause 2(f). Though the notification prescribed the written examination for all the candidates including the candidates who can be considered against one vacancy reserved for meritorious sportsperson, in our opinion, that method of selection should be only in respect of the candidates applying in general as against other vacancies. In the event of the candidates being considered as against the vacancies reserved for general, other backward classes and scheduled caste, those candidates can be selected on the basis of their respective marks in the written examination and in respect of the category to which such candidates belong. 9. As far as the vacancy reserved for meritorious sportsperson is concerned, the scheme provides such reservation for meritorious sportsperson only with an object to encourage outstanding sportspersons. The consideration would be only on the basis of participation and the meritorious achievements of the candidate in sports, provided such candidate has the minimum educational qualification and fulfils the other eligibility norms. The written examination contemplated in the notification under the heading 'method of selection' if at all would only mean to test the eligibility of the candidate for consideration and the marks obtained in the written examination cannot be only the basis of selection of the candidates. Paragraph-7 of the notification relating to the method of selection should be read together with the Office Memorandum dated 4.5.95, irrespective of the fact that the order of preference is not specifically mentioned in the notification. Having regard to the Office Memorandum, in case more than one candidate falls under the same category in the order of preference, then only the marks secured in the written examination can be taken into consideration and the candidate who has secured higher marks from among the equally meritorious candidates in sports falling under the same category in the order of preference can be considered for appointment. Only to that extent, the marks obtained in the written examination is relevant. A candidate falling under clause 2(f) cannot get preference for appointment solely on the ground that he had secured higher marks than the candidate falling under clause 2(b) who had secured lesser marks. 10. This view is also supported by an order of the Division Bench of this Court dated 14.8.2008 made in W.P.Nos.14410, 14236 and 17224 of 2008 and yet another order of a Division Bench of this Court dated 28.8.2007 made in W.P.Nos.39658 & 39659 of 2006. For all these reasons, we do not find any infirmity in the order of the Tribunal. https://hcservices.ecourts.gov.in/hcservices/ 11. This takes us to the next question as to what relief the applicant is entitled to. By the order of the Tribunal, the appointment of the third respondent has been set aside and rather the applicant was directed to be appointed. As the third respondent was appointed on 2.1.2007 and has been functioning as on today, we wanted to know the actual vacancies available in order to accommodate the applicant without disturbing the appointment of the third respondent. In this regard, we also directed the Government of Puducherry to file an affidavit. Accordingly, such an affidavit dated 19.4.2010 has been filed by the Chief Engineer, Public Works Department, Puducherry and in para-5, it is stated as follows:- "5. I further submit that the two grades of draughtsman known as Draughtsman Grade-I and Draughtsman Grade-II were amalgamated into single entity of 'Draughtsman' vide G.O.Ms.No.21 dated 14.7.2009 of the Chief Secretariat (Works), Puducherry and no Recruitment Rules have been framed for the amalgamated post so far. As on date 16 posts of 'Draughtsman' are vacant in the department. The post of Draughtsman carried a revised scale of pay of Rs.9300-32300 + G.P. 4200 which is classified as Group 'B' as per the VI pay Commission recommendation. The details of the cadre strength are as follows:- Draughtsman Grade-I - 17 Draughtsman Grade-II - 52 Amalgamated strength - 69 Physical strength - 53 Vacant - 16 12. In view of the above stand taken by the Government of Puducherry, though we dismiss the writ petitions, we are not inclined to interfere with the appointment of the third respondent. On the other hand, we direct the Government of Puducherry to appoint the applicant by name S.Vengadeswaran to the post of Draughtsman in the scale of pay of Rs.9300-32300 + Grade Pay 4200. We also direct that the seniority of the applicant will be counted from the date of appointment of the third respondent viz., 2.1.2007 and he will be placed over and above the third respondent. However, the applicant would be entitled to salary from the date of his actual appointment pursuant to the order of this Court. We further direct the Government of Puducherry to issue the appointment order to the applicant forthwith so as to enable him to join duty with effect from 1.5.2010. With these observations and directions, both the writ petitions are dismissed. Consequently, M.P.Nos.1 of 2009 & 1 of 2010 are also dismissed. No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ss To 1. The Registrar Central Administrative Tribunal Madras Bench, Chennai 2. The Secretary to Government Public Works Department Union Territory of Puducherry Puducherry 3. The Chief Engineer Public Works Department Puducherry 1 cc to Mr.V.Ajayakumar, Advocate, Sr.No.26483 1 cc to Sr.Government Pleader,Pondicherry, Sr.No.26707,26708 Order in W.P.Nos.26963 & 26535 of 2009 KGK {CO} TP/26.4.2010. https://hcservices.ecourts.gov.in/hcservices/