IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 11-07-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.21899 of 2006 O.A.No.2251 of 1995 Dr.R.Sakthivel .. Petitioner. Versus 1.The Secretary, Tamil Nadu Public Service Commission, Madras-600 002. 2.The Secretary to Government, Health and Family Welfare Department, Fort St. George, Madras-600 009. .. Respondents. Prayer: This petition has been filed seeking for a writ of Certiorarified Mandamus, to call for the proceedings of the Tamil Nadu Public Service Commission, the 1st respondent herein in Proceedings NO.9011/AFD.F/94, dated 6.4.95 and quash the same and direct the 1st respondent Tamilnadu Public Service Commission to evaluate the answer books of the applicant for the four written examinations written on 17.12.94 and 18.12.94 for Special Recruitment December 1994 for Assistant Surgeon regularisation and call the applicant for interview and consider him on merits on par with the other candidates and finalise the selection for regularisation according to law. For Petitioner : Mr.K.Rajkumar For Respondents : Mr.C.N.J.Ezhilarasi (R1) Mr.T.Seenivasan Additional Government Pleader (R2) O R D E R Heard the learned counsel appearing for the petitioner, the learned standing counsel for the Tamilnadu Public Service Commission appearing for the first respondent and the learned Additional Government Pleader appearing for the second respondent. 2. The petitioner has stated that on his successful completion of the M.B.B.S. course and one year of Compulsory Rotary Residential Internship, he had registered himself with the Tamilnadu Medical Council. The petitioner was appointed as a temporary Assistant Surgeon in the Tamilnadu Medical Service, under Rule 10(a)(i) of the Tamil Nadu State and Subordinate Service General rules, on 5.4.90. While so, the second respondent had directed the regularisation of all temporary https://hcservices.ecourts.gov.in/hcservices/ Assistant Surgeons appointed, under 10(a)(i) of the Tamilnadu State and Subordinate Service General Rules, during 1989-90 and who were working as on the date of the Government Order. The said directions were issued in G.O.Ms.No.312, Health and Family Welfare Department, dated 20.4.94. The Government had directed that a Special Test for regularisation would be conducted by the first respondent Service Commission. All candidates, who were successful in the Special Qualifying Examination by securing the minimum qualifying marks of 30 per cent, were to be absorbed regularly in the existing vacancies and they were to be placed below the list of candidates selected by the Service Commission in the Reserve List for the year 1991-92. Accordingly, the first respondent Service Commission had issued a notification, on 24.8.94, for special recruitment for regularisation of the services of the persons appointed temporarily as Assistant Surgeons in the Tamil Nadu Medical service. 3. The petitioner has further stated that he had appeared for the main written examination for Assistant Surgeon (Special Recruitment), held on 17.12.94 and 18.12.94. The petitioner had appeared for the four papers; (1) General Knowledge; (2) General English/General Tamil; (3) Medical Science Paper-I and (4) Medical Science Paper-II. The Medical Science Paper-I examination was conducted, on 18.12.94 fore noon, which the petitioner had written. However, before the petitioner had taken the Medical Science Paper-II, on 18.12.94, after noon, the invigilator attached to the Hindu Higher Secondary School, Triplicane, had required the petitioner to give a statement accepting that the invigilator had taken a bit paper from the petitioner's table, on 18.12.94, fore noon. Though the petitioner had denied the incident, he had signed the statement dictated by the invigilator, as he was threatened. In the said statement, it was stated that a rough sheet was taken from the top of the table. However, he had not copied any material from the rough sheet. 4. The petitioner has stated that he had not taken any rough sheet or a bit of paper, along with him, into the examination hall on the fore noon of 18.12.94. The invigilator had picked up a sheet from the examination hall and questioned the petitioner. Though the petitioner had stated that he had nothing to do with the said paper, a statement had been extracted from him. It has been further stated that the first respondent Service Commission, by a show cause notice, dated 6.1.95, stated that the petitioner, in violation of the instruction No.16 issued to the candidatess, was found keeping a portion of books/xerox copies of portion of books. The show cause notice had also stated as to why the petitioner should not be debarred from appearing for any of the Commission's examination and selections, with reference to instruction No.21. The petitioner had submitted his explanation on 30.1.95, denying the charges made against him. No enquiry had been conducted by the first respondent Service Commission, nor any further opportunity had been given to the petitioner to put forth his defence. The report of the invigilator had not been furnished to the petitioner before the final order was passed. Therefore, the first respondent Service Commission had issued the impugned order, dated 6.4.95, rejecting the explanation submitted by the petitioner. 5. It was concluded that the petitioner had violated instruction No.16 and consequently, he was debarred for one year, with effect from https://hcservices.ecourts.gov.in/hcservices/ 1.3.95 from appearing for the examinations and selections held by the Commission. Thus his application for the special recruitment to the post of Assistant Surgeon was rejected and his answer book for Medical Science Part-I was also invalidated. In such circumstances, the petitioner has filed an original application before the Tamilnadu Administrative Tribunal in O.A.No.2251 of 1995, which has been transferred to this Court and re-numbered as W.P.No.21899 of 2006. 6. In the reply affidavit filed on behalf of the respondents, the claims made by the petitioner have been denied. It has been stated that the first respondent Commission in its notification, dated 24.8.94, had announced a Special Recruitment for regularisation of persons appointed temporarily as Assistant Surgeons in the Tamilnadu Medical service. Applications were invited only from persons appointed temporarily during the period from January 1989 to December 1990, who were in service as Assistant Surgeons on 20.4.94 and who had possessed the requisite qualifications for regularisation of their service. The petitioner was one among those, temporary Assistant surgeons, who had applied for the post in response to the said notification. The Register number assigned to his application was 256. The main written examination for the post comprising of four papers were scheduled to be conducted on 17.12.94 and 18.12.94. Hall Tickets were issued to the applicants well in advance enclosing copies of the "instructions to candidates appearing for the competitive examinations for recruitments". The petitioner had written the examination held on 17.12.94. He was also present for the examination held on 18.12.94. When the petitioner was writing the examination in the paper relating to Medical Science Paper-I in the fore noon, on 18.12.94, one of the staff of the Commission's Office was on a surprise inspection of the examination halls. When such staff was invigilating the hall, where the petitioner was writing the examination, he had found that the petitioner was having bits of written matters on his desk. The staff of the Commission's office had immediately seized those bits of written matters from the petitioner in the presence of the invigilator of the said examination hall. A statement was obtained from the petitioner in this regard, duly endorsed by the invigilator concerned and also authenticated by the Chief Invigilator of the examination Centre. The petitioner had given a statement stating that when he was writing the medical paper, the Commission's staff seized a rough sheet containing written matter kept below his answer book. After the seizure of the incriminating materials, the petitioner was allowed to complete writing his examination. By possessing the bits of papers/notes while writing the examination, the petitioner had violated instruction No.16 of the "instructions to candidates appearing for the competitive examinations for recruitement". Thereafter, the Commission had provisionally concluded to invalidate the answer book of the petitioner relating to the said Medical Science Paper-I and to debar him from appearing for the Commission's examinations and selections. Accordingly, in the commission's memorandum No.9011/Assistant Surgeon/G.J./94, dated 6.1.95, the petitioner was directed to show cause as to why he should not be debarred from appearing for any of the Commission's examinations and selections with reference to Instruction No.21 of the Commission's instructions. The petitioner had submitted his explanation in his letter, dated 30.1.95. The Commission had carefully examined the explanation submitted by the petitioner and not convinced https://hcservices.ecourts.gov.in/hcservices/ with it, the Commission had decided to confirm the provisional conclusion already arrived at. Accordingly, in proceedings No.9011/APD.F/94, dated 6.4.95, orders were issued rejecting the petitioners application for special recruitment and invalidating his answer book in the subject Medical Science Paper-I and also debarred him for one year, with effect from 1.3.95, from appearing for the future examinations and selections to be conducted by the Commission. In such circumstances, the petitioner had approached the Tamil Nadu Administrative Tribunal by way of an original application. 7. The learned counsel for the petitioner had vehemently contended that the petitioner was not at fault for the alleged charges made against him. The petitioner had not used in copying, the rough sheet/notes which was lying near his desk. All that the petitioner had done was to pick it up and keep it on his table. There was no proper enquiry conducted against the petitioner, by giving him an opportunity to present his case, before the impugned order had been passed. The statement taken from the petitioner was contrary to the principles of natural justice and the petitioner was forced to give such a statement under threat. There was no proof on the part of the respondents to show that the petitioner had obtained an undue advantage due to the rough sheet/notes, seized from the petitioner. Further, the report of the invigilator had not been furnished to the petitioner before the final orders were passed. In such circumstances, the punishment imposed on the petitioner by the impugned order of the first respondent is arbitrary, illegal and void. Further, the punishment imposed on the petitioner is disproportionate to the irregularity alleged to have been committed by the petitioner. 8. The learned counsel appearing on behalf of the respondents had submitted that the charges against the petitioner were serious in nature. The impugned order passed by the first respondent cannot be set aside based on the representation of the petitioner stating that the punishment is excessive in nature. Further, the impugned order is sustainable in law, as it has been passed after giving the petitioner sufficient opportunity to explain his case. The action of the petitioner is not in accordance with the instructions issued to the candidates by the first respondent Commission. The petitioner deserves no sympathy as he had attempted to obtain an undue advantage in the competitive examination conducted by the first respondent, on 18.12.94, with regard to the selection of the persons for the post of Assistant Surgeon (Special Recruitment). 9. In view of the submissions made by the learned counsels appearing for the petitioner, as well as the respondents, and in view of the records placed before this Court, it is clear that the petitioner was found to be in possession of certain papers on which answers had been written. In spite of the clear instructions issued by the Tamilnadu Public Service Commission, the petitioner had chosen to take a risk by retaining with him certain bits of papers on which writings have been made. Whether the petitioner had copied from the materials, which were found to be with him, or not, is immaterial as the petitioner had violated the instructions issued by the first respondent Commission to the candidates who had taken the competitive examination. If such acts https://hcservices.ecourts.gov.in/hcservices/ are encouraged it would lead to serious consequences, both in terms of the comparative merits of the candidates participating in the competitive examinations and in terms of the moral values expected of them. 10. From the records available, it is also found that sufficient opportunity was given to the petitioner to defend himself against the charges levelled against him. When the petitioner had not alleged or shown that the invigilator and the other authorities concerned had acted in a malafide manner, it cannot be said that they were prejudiced against the petitioner for some unknown reason. Once it is found that the petitioner had been given sufficient opportunity to explain the charges made against him, it cannot be said that the principles of natural justice had been violated while passing the impugned order. As the petitioner has not shown sufficient cause or reason to interfere with the impugned order of the first respondent, dated 6.4.95, the writ petition stands dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar csh To 1.The Secretary, Tamil Nadu Public Service Commission, Madras-600 002. 2.The Secretary to Government, Health and Family Welfare Department, Fort St. George, Madras-600 009. Writ Petition No.21899 of 2006 SP(CO) RVL 11.08.2008 https://hcservices.ecourts.gov.in/hcservices/