1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06/04/2011 C O R A M THE HONOURABLE Mr.JUSTICE K.VENKATARAMAN Writ Petition (MD) No.459 of 2011 K.Muthamilselvan S/o.C.Karunanithi 5/581 Ramar Colony,Renganathapuram NGO Colony (PO), Dindigul .. Petitioner Vs 1.The State of Tamil Nadu represented by its Secretary Home (II) Department Secretariat, Chennai. 2.The Chairman, Tamil Nadu Uniform Service Recruitment Board, Changalvaraya Naickar Maaligai, Anna Salai, Chennai. 3.The Director General of Police, Chennai-4 4.The Superintendent of Police, Office of Superintendent of Police, Dindigul District. .. Respondents Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorarified Mandamus to call for the records on the file of the second respondent in his proceedings in Na.ka.No.D3/7078/2010 dated 15.12.2010 and quash the same and consequently directing the respondents to consider the claim of the petitioner under the Special category namely, the category of “Wards of Policemen” for selection as Grade II Police Constable and further direct the respondents to select and appoint the petitioner to the post of Grade II Police Constable for the year 2010. For petitioner ...Mr.M.Siddharthan For Respondents ...Mr.N.Elango Government Advocate O R D E R The petitioner has come up with the present Writ Petition challenging the order of the second respondent, dated 15.12.2010, a letter of intimation to the petitioner's father stating that the petitioner was not selected, since he has not enclosed the “wards certificate” along with the application filed by him for the post of Grade II Police Constable and further seeking a direction to the respondents to consider the claim of the petitioner under special https://hcservices.ecourts.gov.in/hcservices/ 2 category, namely, to the category of “Wards of Policemen” for the selection to the said post and to select and appoint him to the said post. 2. The brief facts of the case as stated in the affidavit filed in support of the Writ Petition is stated hereunder: The petitioner has applied to the post of Grade II Police Constable. His father is a retired Sub Inspector of Police. As per the notification, the wards of policemen are entitled to 10% quota. The petitioner applied under the said quota. 2.1. He was called for written examination on 08.08.2010 and secured 52 marks. Thereafter he was directed to appear for physical endurance test on 05.10.2010. Since he has come out successfully, he was directed to appear for physical endurance test. Even in the physical endurance test, he had secured 6 marks. Thus, the total marks obtained by him was 58. In the backside of the hall-ticket issued for physical endurance test, he was directed to produce the original “ward cum dependant certificate” obtained after the date of advertisement, namely, on and from 05.05.2010. He has produced the ward cum dependent certificate obtained in the year 2008. However, he has approached the fourth respondent and obtained a fresh ward cum dependent certificate on 30.09.2010. On the date of physical endurance test, the officials verified the certificate including the ward cum dependent certificate. He was directed to produce the said certificate on 11.10.2010. i.e. on the date of physical efficiency test. He has produced the same on the said date. 2.3. Since he has obtained a total of 58 marks and the cut off marks for the wards quota was 50, he was expecting the appointment order in his favour. However, his name was not found in the selection list for medical test. Therefore, his father sent a detailed representation to the second respondent to include his name under the special category, namely, wards of policemen. Even in the said representation, his father has stated that the necessary certificate was obtained from one Mr.Dinakaran, IPS, Superintendent of Police, Dindigul District and was produced before the authorities. However, by the impugned order dated 15.12.2010, the request made was rejected. Thus, the said order is under challenge in this present Writ Petition. 3. Counter affidavit was filed on behalf of the respondents. It speaks about the marks to be obtained and the marks that have been obtained by the petitioner. Further, it is stated that the ward certificate was not enclosed along with the application form submitted by the petitioner. In view of the said fact, according to the counter affidavit, he was not selected. 4. On the basis of the above pleadings, I have heard the learned counsel appearing for the petitioner as well as the learned https://hcservices.ecourts.gov.in/hcservices/ 3 Government Advocate appearing for the respondents. 5. It is not in dispute that the petitioner has applied to the post of Grade II Police Constable and he has come out successfully in the written test as well as physical endurance test and physical efficiency test. It is also not disputed that he has secured 58 marks in all the tests and cut off mark for the ward quota is 50 marks. The only ground on which the petitioner was not selected is that the petitioner has not produced the ward certificate as per the claim of the respondents. It is the case of the petitioner that he has enclosed the relevant certificate along with the application. But, however, it is disputed by the respondents. The question that arises for consideration is whether the non enclosure of the ward certificate would deprive the petitioner, the employment that has been sought for by him, namely, Grade II Police Constable. I am of the considered view that even assuming that the petitioner has not enclosed the ward certificate, the fact remains that he is the son of the retired Sub Inspector of Police. This fact is not denied even by the respondents. The necessity of producing the ward certificate is meant only for establishing that the person, who has applied for the said post, is the son or daughter, who served or serving in the police department. In the case on hand, as stated already, it is not disputed that the petitioner's father has served as Sub Inspector of Police, now retired. 6. In this connection, the learned counsel appearing for the petitioner relied on the decision reported in AIR 1996 MADRAS 178 (Midhuna Nathan and etc., etc., petitioners v. State of Tamil Nadu and others, respondents). The Division Bench of this Court in the said judgment has held that the right to selection is determined by the fact that the candidate belonged to that category and not by certificate. It was only a peace of evidence. In the said case, it was alleged by the respondents that when the petitioner had applied for admission to M.B.B.S., course reserved for children born on inter-caste marriage was not produced. Overruling the objection, the Division Bench has directed the respondents therein to consider the claim of the petitioner. Paragraph No.21 of the order made thereunder is usefully extracted hereunder: “21.Very recently, the first Bench of this Court had to consider the effect of non-production of the relevant certificate along with the application in V.Premanand v. State of Tamil Nadu, (1995) 2 Mad LJ 325. In that case, the petitioner applied for admission to the seat reserved under clause 3.5(viii) of the prospectus issued by the Directorate of Medical Education, Tamil Nadu, for the academic year 1994-95. Under that clause, 12 seats were reserved for children born of inter-caste marriages. The petitioner in that case was born of an inter-caste marriage between a Scheduled Caste/Scheduled Tribe and forward community. He filed an application for admission within https://hcservices.ecourts.gov.in/hcservices/ 4 time, but he could not enclose the Tahsildar certificate with the application as it was not issued to him by that time. He was able to produce the same before the Selection committee which considered the applications. However, the Selection Committee rejected the application relying upon clause 13.5 of the prospectus, according to which the candidates seeking admission against special category seats should submit necessary certificates obtained from appropriate authorities in the prescribed form and submit the same along with the application to the Selection Committee. It is to be noted that the said clause is the same as present cl.14.5. Holding that the Selection Committee acted arbitrarily while it rejected his application, the Bench said:- “5.It must be pointed out that clause 13.5 only prescribed the procedure in order to eliminate persons who do not belong to that category, to that undue advantage. As long as it is not in dispute that the petitioner belongs to that category of children born of inter-caste marriage b etween SC/ST and forward community and in addition to this, he was able to produce the certificate before the application was scrutinised for admission, rejection of such application amounted to giving greater value to the procedure than to the substantive right. The procedure is intended to facilitate enforcement of substantive right and not to defeat the substantive right. Procedure is hand-maid of justice and not to defeat justice.” The above ruling shows that the right to selection is determined by the fact that the candidate belonged to that category and not by the certificate, which was only a piece of evidence.” 7. Even in the case on hand, it is not in dispute that the petitioner is the son of the retired Sub Inspector of Police and to that effect he has produced the certificate on 05.10.2010, when he has applied for the physical endurance test and on 11.10.2010, when he has appeared for the physical efficiency test. In paragraph No.7 of the affidavit, it has been clearly spelled out by the petitioner that such certificate was produced at the time of physical endurance test and on 11.10.2010, on the date of physical efficiency test. However, there is no denial in the counter affidavit with regard to the said statement. 8. It is also stated by the petitioner that he has obtained a fresh ward cum dependant certificate on 30.09.2010 and produced the same on 11.10.2010. Even as per the case of the respondents, the ward cum dependant certificate shall be furnished at the time of submission of application and at the time of physical efficiency test, a recent certificate has to be produced at the time of the https://hcservices.ecourts.gov.in/hcservices/ 5 physical efficiency test. As stated earlier even assuming that the petitioner has not enclosed the certificate along with the application form, it seems that he has produced the certificate on 11.10.2010. This statement has not been disputed in the counter affidavit. In such circumstances, I am of the considered view that the respondents should have considered the certificate produced by the petitioner. The failure to do so is totally erroneous. 9. In view of the above stated position, I am inclined to set aside the impugned order of the second respondent dated 15.12.2010 and consequently direct the respondents to consider the claim of the petitioner under the special category, namely, category of wards and dependants for selection to the post of Grade II Police Constable. The second respondent is directed to pass suitable orders keeping in mind that the observations made above. The said exercise has to be carried out by the second respondent within a period of 12 weeks from the date of receipt of a copy of this order. The Writ Petition is ordered accordingly. No costs. Sd/- Deputy Registrar(LA) /True Copy/ Assistant Registrar To 1.The Secretary State of Tamil Nadu,Home (II) Department Secretariat, Chennai. 2.The Chairman, Tamil Nadu Uniform Service Recruitment Board, Changalvaraya Naickar Maaligai, Anna Salai, Chennai. 3.The Director General of Police, Chennai-4. 4.The Superintendent of Police, Office of Superintendent of Police, Dindigul District. +1cc to Mr.M.Siddharthan,Advocate, Sr.No.12744 W.P.(MD) No.459 of 2011 06.04.2011 RR SMA/9.4.2011/6C/5P https://hcservices.ecourts.gov.in/hcservices/