1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07/06/2011 C O R A M THE HONOURABLE Mr.JUSTICE K.VENKATARAMAN Writ Petition (MD) No.2919 of 2011 Yogam ...Petitioner Vs 1.The Secretary, Tamil Nadu Public Service Commission, Secretariat, Government Estate, Chennai - 2 2.The Deputy Secretary, Tamil Nadu Public Service Commission Secretariat, Government Estate, Chennai-2 3.The District Collector, Tirunelveli District, Tirunelveli. ...Respondents Petition filed under Article 226 of the Constitution of India praying for a Writ of Mandamus to direct the first and second respondents to select the name of the petitioner bearing Registration No.02910059 and to appoint the petitioner as typist grade III in the regular time scale of pay and confer all the consequential benefits. For petitioner ...Mr.C.Mayilvahana Rajendran For Respondents ...Mr.SP.Maharajan For R1 & R2 Standing Counsel for TNPSC For R-3 ...Mr.B.Pugalendhi, Spl. Govt.Pleader O R D E R The petitioner has come up with the present writ petition for a mandamus directing the respondents 1 and 3 to select him to the post of Typist Grade III in the regular time scale of pay and also confer all the consequential benefits to him. 2. The case of the petitioner in nutshell is stated hereunder: He belonged to Hindu Pallar Community, which comes under the Scheduled Caste. After completing his studies, he took part in the examination conducted by the respondents. He is eligible to the post of Typist Grade III examination. He came out successfully in the examination. The respondents also issued a call letter dated 12.11.2008 requesting him to attend for certificate verification. He appeared along with necessary certificates before the respondents. He has produced the community certificate at that point of time. However, the petitioner has not received any communication from the respondents about his selection. Hence, the petitioner made a representation dated 25.11.2009 to the first respondent. Since there is no response, the petitioner was constrained to send another representation dated 22.01.2010 to the first respondent. Thereupon the petitioner received a response from the second respondent https://hcservices.ecourts.gov.in/hcservices/ 2 stating that the community certificate has been sent to the third respondent for verification to verify the genuineness of the certificate. In pursuant to the same, the third respondent by his notice dated 13.07.2010 directed him to appear for community certificate verification on 20.07.2010 before the District Level Scrutiny Committee. The petitioner appeared before the committee and produced all the certificates to establish that he belonged to Hindu Pallar Community. However, there was no communication from the respondents. So long as the community certificate issued to the petitioner was not cancelled, the respondents cannot deny him appointment. In view of the attitude of the respondents 1 and 2, the petitioner was driven to file the present writ petition. 3. The learned counsel appearing for the petitioner strenuously contended that the petitioner has produced the certificate to prove that he belonged to Hindu Pallar Community. When such a certificate has been produced by the petitioner, the respondents 1 and 2 cannot deny him employment. He further added that as long as the community certificate produced by the petitioner was not cancelled, the respondents 1 and 2 cannot deny him employment on the ground that they sought verification pertaining to the certificate produced by the petitioner with the third respondent. 4. The learned counsel appearing for the respondents 1 and 2 fairly submitted that the petitioner has produced the certificate to show that he belonged to Hindu Pallar Community. But, however, the second respondent sought to verify about the certificate and sent the communication to the third respondent. There is no response from the third respondent, in spite of the fact that a reminder has been sent to the third respondent. He has further added that as and when the third respondent sends a communication stating that the petitioner belonged to the Hindu Pallar Community, the case of the petitioner will be considered. 5. The learned Special Government Pleader appearing for the third respondent submitted that the petitioner appeared for an enquiry and produced the certificates to show that he belonged to Hindu Pallar Community. The genuineness of the certificate is verified and orders will be passed by the District Level Scrutiny Committee at the earliest. 6. I have considered the submissions made by the learned counsel appearing for the petitioner, the learned counsel appearing for the respondents 1 and 2 and the learned Special Government Pleader appearing for the third respondent. 7. It is not in dispute that the petitioner has applied to the post of Typist Grade III examination, when it has been called for. It is also not disputed that he came out successfully in the examination. The petitioner did in fact was directed to appear for the certificate verification and he has produced all the certificates including the community certificate. 8. The community certificate produced by the petitioner shows that he belonged to Hindu pallar Community. No doubt the second respondent entertaining a doubt has sought to verify the genuineness of the certificate with the third respondent and a communication has been sent to the third respondent. It is stated that the petitioner has appeared before https://hcservices.ecourts.gov.in/hcservices/ 3 the District Level Scrutiny Committee and produced all the certificates to show that he belonged to that particular community. Till date the District Level Scrutiny Committee has not passed any order. In such circumstances, the petitioner, who is possessing the valid community certificate, cannot be denied employment on the ground that the certificate verification is made by the second respondent. As long as the community certificate produced by the petitioner is intact and has not been cancelled, he cannot be denied employment. 9. In view of the above stated position, I am of the considered view that the denial of employment to the petitioner on the ground that the certificate, is sought to be verified with the third respondent and the matter is pending with the District Level Scrutiny Committee, is not acceptable. This view has been taken by the Division Bench of this Court in W.A.No.(MD) 471 of 2010 dated 16.08.2010. Paragraph Nos.4, 5 and 6 of the order made thereunder is usefully extracted hereunder: 4.The issuance of Scheduled Tribe community certificate and the consequential verification are governed by the various Government orders. So far as the issuance of community certificate to an applicant seeking for Scheduled Tribe certificate is concerned, the Government had conferred such power on the Revenue Divisional Officer having jurisdiction over the residence of the applicant. Prior to the said Government Order, the Tahsildars concerned were made entitled to issue such certificates. The first respondent was issued with a community certificate dated 09.04.2002 by the concerned Revenue Divisional Officer. On the strength of such certificate, she had enrolled her name in the employment exchange and her name was also sponsored by the employment exchange for consideration for appointment to the post of Junior Assistant in the Commercial Taxes Department and she was appointed during the period when the general strike was in progress by the Government servants to meet the exigencies. As number of such appointments were made and after the general strike was withdrawn by the Government servants, those who were appointed during the strike period made a request to the Government for their regularisation. The Government, having examined that request carefully, took a policy decision to conduct a special qualifying examination for those candidates who were temporarily appointed and on the basis of that examination, their services were regularised. 5.The first respondent is one of the candidates who took the special qualifying examination and became successful. In spite of the same, her name was not forwarded by the Tamil Nadu Public Service Commission solely on the ground that the Scheduled Tribe certificate produced by her had been forwarded to the State Level Scrutiny Committee https://hcservices.ecourts.gov.in/hcservices/ 4 for verification and till such time the orders are received from the State Level Committee, she would not be appointed. In our opinion, the stand taken by the Tamil Nadu Public Service Commission cannot be accepted and is totally unjustified. When the certificate is issued by the competent authority to a person or individual, it should be presumed to be valid till such time it is cancelled by the competent authority in the manner known to law. This law has been laid down by the Apex Court in the judgment in R.Kandasamy v. Chief Engineer, Madras Port Trust (1997) 7 SCC 505 and the said law holds the filed as of now. In fact, a Division Bench of the Principal Seat has referred to the above cited decision in W.P.No.34615 of 2007 dated 06.11.2007 and in W.A.Nos.1173 and 1174 of 2005 dated 23.01.2008. Therefore, the certificate issued in favour of the first respondent by the concerned Revenue Divisional Officer would certainly enure to the benefit of the first respondent for securing employment. She cannot be denied the regularisation solely on the ground that the Tamil Nadu Public Service Commission has forwarded the said certificate for verification and she has to wait till the State Level Scrutiny Committee decides one way or other. This practice cannot be adopted in all cases if the Scheduled Tribe candidates apply for appointment and in that event, all those who apply and are consequently selected for the post earmarked for Scheduled Tribe candidates, should have to necessarily wait till such time the State Level Scrutiny committee decides on their community certificates. If such procedure is allowed, that will result in denial of the legitimate rights of such candidates for appointment. In that view of the matter only, the Courts have held that even when a certificate is sought to be verified, till such time a final decision is taken, based on the certificate which the candidate or the individual is having, the selection or appointment, as the case may be, should not be denied. This law has been laid down by the Apex Court in the judgments in Sudhakar Vithal Kumbhare v. State of Maharashtra and others, (2004) 9 SCC 481 and in General Manager, Indian Bank, v. R.Rani and another, (2007) 12 SCC 796. 6.In view of the above, we are in entire agreement with the order under appeal and we do not find any infirmity. Of course, it is always open to the employer to take appropriate action, as has been held by the Apex Court in Kumari Madhuri Patil v. Additional Commissioner, Tribal Development, AIR 1995 SC 94, against such individual who has secured the employment. Hence the writ appeal fails and the https://hcservices.ecourts.gov.in/hcservices/ 5 same is dismissed. Consequently, M.P.(MD) No.2 of 2010 is also dismissed. No costs. 10. In view of the above stated position, there shall be a direction to the first and second respondents to consider the appointment of the petitioner to the post of Typist Grade III in the regular time scale of pay and the said exercise has to be carried out within a period of one month from the date of receipt of a copy of this order. However, it is subject to the order to be passed by the District Level Scrutiny Committee. As and when the order, if any, is against the petitioner, the respondents are at liberty to take further action in this regard. The writ petition is ordered accordingly. No costs. Consequently connected Miscellaneous petition is closed. Sd DEPUTY REGISTRAR ( ACCOUNTS ) /TRUE COPY/ ASST REGISTRAR RR To 1.The Secretary, Tamil Nadu Public Service Commission, Secretariat, Government Estate, Chennai - 2 2.The Deputy Secretary, Tamil Nadu Public Service Commission Secretariat, Government Estate, Chennai-2 3.The District Collector, Tirunelveli District, Tirunelveli. 1CC TO MR. C. MAYIL VAHANA RAJENDRAN, ADVOCATE, SR: 17348: 1CC TO MR. S.P. MAHARAJAN, ADVOCATE, SR: 17356: DM:2011:JUNE:16: W.P.(MD) No.2919 of 2011 07.06.2011 5P:6C:: https://hcservices.ecourts.gov.in/hcservices/