1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12.08.2011 CORAM: THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.(MD)No.1875 of 2011 M.P.(MD)No.2 of 2011 M.Ramachandran ... Petitioner Versus 1. The Chairman, Tamil Nadu Public Service Commission, No.1, Greams Road, Chennai 600 006. 2. The Secretary, Tamil Nadu Public Service Commission, No.1, Greams Road,Chennai 600 006. ... Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of Writs of Certiorarified Mandamus, to call for the records on the file of the 2nd respondent, dated 03.01.2011 in Memorandum No.6908/PSD-A/08, quash the same as illegal, unjust and further direct the respondent to appoint the petitioner under appropriate service based on the marks obtained by the petitioner in the Combined Subordinate Service Exam No.1-2007, in pursuant to the Advertisement No.115 of 2007, dated 30.06.2007, published by the respondents with all service and monetary benefits. For Petitioners .. Mr.P.Pethu Rajesh For Respondent .. Mr.S.P.Maharajan, O R D E R By memo, dated 03.01.2011, the Tamil Nadu Public Service Commission, has debarred the petitioner for one year from appearing in anyone of the examination and selections to be conducted by the Commission with effect from 02.12.2010, besides rejecting his application, canceling the provisional selection to the posts included in CSSE-I-2007 recruitment. Being aggrieved by the same, the petitioner has filed the present writ petition. 2. Short facts leading to the writ petition are as follows: When the petitioner was working as Apprentice Junior Engineer (temporary) at Integral Coach Factory,Southern Railway, Chennai, he absented himself from duty due to some family problems and ill-health. Disciplinary proceedings were initiated by the Senior Electrical Engineer (Designs), Integral Coach Factory, Chennai, on 11.01.2007. He was https://hcservices.ecourts.gov.in/hcservices/ 2 removed from service on the ground of unauthorised absence from duty for 143 days. While removing him from service, the authority had made an observation that the said order of removal will not debar him from getting further employment. Challenging the removal order passed against him, he preferred an appeal before the Deputy Chief Electrical Engineer (Design), Integral Coach Factory, Chennai, on 21.02.2007 and same was also dismissed by the said authority on 22.3.2007. Being aggrieved by the same, the petitioner has filed a mercy petition to the Chief Design Engineer/Electrical, Integral Coach Factory, Chennai, on 10.05.2007 and the said petition was not considered till the date of filing of the writ petition. 3. In the mean while, pursuant to an advertisement in Tamil daily news paper for the Combined Subordinate Service Exam No.l, vide Advertisement No.115, dated 30.06.2007, the petitioner submitted his application on 23.07.2007. While filling up the application form, he had furnished the requisite details and enclosures. In the application, he has clearly stated about his previous employment in the Integral Coach Factory, Chennai for the period between 13.03.2004 and 11.01.2007 in Column No.24 of the application form and further, made a declaration that no criminal or disciplinary proceedings were pending against him, on the date of submission of the application form. He wrote the examination on 17.11.2007 and was allowed to participate in the interview held on 20.03.2008. 4. During the interview, the authorities had enquired about the non-furnishing of the 'No Objection Certificate' from the employer. While replying the said question, the petitioner has expressed his inability to furnish the NOC, as he was no more an employee under the Integral Coach Factory, Chennai. Immediately, the TNPSC has directed the petitioner to submit the self-explanatory letter, on the same day, narrating the events, which led cessation of office. Therefore, the petitioner was under the bona fide impression that he would be selected for the post notified and for which, examination was conducted. 5. The petitioner has further submitted that for all others, results were published on 21.04.2008 and in respect of his case, it was withheld. When he approached the respondent and demanded the reasons, he was informed that he had suppressed certain facts with regard to the pendency of the appeal, challenging the disciplinary proceedings conducted by the Senior Electrical Engineer - Designs, Integral Coach Factory, Chennai and thereby, made a false declaration in the application form. 6. When the Commission has asked for the details, the Deputy Chief Personal Officer-II, Integral Coach Factory, Chennai, sent a reply that no appeal with regard to the disciplinary proceeding was pending and the same was disposed of on 22.3.2007. Despite the above, a show cause notice, dated 30.08.2010, was issued by the Commission, seeking for explanation, for which, a detailed reply was given. It was clarified that mere filing of the mercy petition is not equal in filing an appeal. Without considering the explanation in proper perspective, the Commission by its memo, dated 03.01.2001, debarred the petitioner for one year from appearing in anyone of the examination and selection conducted by TNPSC., with effect from 02.12.2010 and also rejected the petitioner's https://hcservices.ecourts.gov.in/hcservices/ 3 provisional selection made for the post of Combined Subordinate Service Exams-I, 2007. 7. On the abovesaid pleadings and taking this Court through Column Nos.24 and 25 and the declaration in the OMR application form issued by the TNPSC and the Information Brochure, learned counsel for the petitioner submitted that on the date of submission of the application form, there was no pending disciplinary proceedings or appeal before any authority and in such circumstances, the petitioner has bona fidely filled up Column No.24, furnishing the details of the previous employment as Apprentice Junior Engineer (temporary) at Integral Coach Factory,Southern Railway, Chennai, from 12.03.2004 to 11.02.2005 and Apprentice Training JE, ICF Chennai (Temporary) from 12.02.2005 to 11.01.2007. According to him, what is required to be furnished in Column No.24, is only the particulars of the previous employment, which he had furnished and if there was any intention to suppress or to commit fraud in securing job, he could have even omitted to furnish the above said details. 8. Learned counsel for the petitioner further submitted that when the Senior Electrical Engineer (Designs), Integral Coach Factory, Chennai, has removed the petitioner from service on the ground of unauthorised absence, specific observation was made in the order, stating that the removal would not debar the petitioner from securing future employment and in such circumstances, the Commission ought not to have debarred the petitioner for one year in anyone of the examination and selections to be conducted by the Commission, with effect from 02.12.2010. Therefore, the provisional selection ought not to have been canceled. 9. Learned counsel for the petitioner further submitted that in the year 2009, when Information Brochure was issued by the TNPSC, the details regarding departmental action/criminal case, sought for in Column Nos.23 and 23-A, as well as participation in the political activities in Column No.23C, were directed to be furnished in a separate sheet, when a declaration is required to be submitted to the abovesaid aspects. Whereas, when a notification was issued in the year 2007, there was no specific information in the brochure issued to the candidates and in such circumstances, failure to furnish details of the proceedings initiated by the previous employment in a separate sheet, ought not to have been construed as suppression on the part of the petitioner. As there was no provision in the notification to furnish the details in separate sheet, the petitioner has not bona fidely thought to furnish the details of the previous employment, as he was not in service with the previous employment. When the removal order is not a bar for securing employment under the State service, alleged suppression is liable to be rejected. For the abovesaid reasons, he prayed to set aside the impugned order and consequently, appoint him on the basis of the marks obtained in the Combined Subordinate Service Exam No.1-2007. 10. On the basis of the counter affidavit filed by the Deputy Secretary and inviting the attention of this Court to the contentions contained in the Information Brochure, referred to earlier, Mr.S.P.Maharajan, learned counsel appearing for the TNPSC submitted that the Commission by its Notification dated 25.06.2007 (Advertisement No. https://hcservices.ecourts.gov.in/hcservices/ 4 115) has invited applications from the qualified candidates for appointment by direct recruitment to the posts, included in Combined Subordinate Services Examination-I, 2007. The last date for receipt of the applications at Commission's Office was on 31.07.2007. The written Examination for the said recruitment was held on 17.11.2007 and 18.11.2007 all over the State. The procedure for selection, as per paragraph 2 of the Notification, is as follows:- "The selection of candidates for appointment to the posts mentioned against SI.Nos.1 to 17 of the Table-I will be made in two successive stages viz. (i) Written examination and (ii) Oral Test in the shape of an interview and the final selection will be made on the basis of total marks obtained by the candidates in the written examination and oral test taken together and the post option exercised by the candidates and by following the rule of reservation of appointments separately for each post and unit. The selection for appointment to the posts mentioned against SI.Nos.18 to 26 of the Table-I I will be made on the basis of total marks obtained by the candidates in the written examination alone and the post option exercised by the candidates following the rule of reservation of appointments separately for each post and unit. Two separate Rank lists will be prepared for Interview posts mentioned against SI. Nos.1 to 17 under Table-I and Non-interview posts (Sl.No.18 to 26) under Table -II. Selection in respect of Non-interview posts will be taken up after finalizing the selection for the Interview posts mentioned against SI.Nos.1 to 17 excluding those who have been selected for the interview posts." 11. He further submitted that based on the marks obtained by the candidates in the written examination and applying the Rule of reservation, a list of selected candidates was published by the Commission on 22.02.2008, through Internet and in the Commission's office notice board. The Oral Test for the above recruitment was conducted in the months of March and April' 2008 and after the oral test, the list of the selected candidates was drawn up, based on the marks obtained by the candidates in the written examination and oral test, vacancy position, qualification and the rule of reservation. 12. Learned counsel further submitted that in the application for recruitment, at Column No.24, about the previous employment, the petitioner has furnished the following details, viz., "Apprentice Training JE; Southern Railway (Temporary) from 12.03.2004 to 11.02.2005 and Apprentice Training JE, ICF Chennai (Temporary) 12.02.2005 to 11.01.2007." On the day of Oral Test (i.e. On 20.03.2008), it was learnt from the petitioner that he had been removed from service on 11.01.2007 A.N. Therefore, the petitioner's provisional selection to the posts included in CSSE-I 2007 has been withheld for want of clarification, regarding the action taken against him. Therefore, the Chief Personnel Officer, ICF was addressed in this regard, vide letter No.6908/OTB- B2/2008 dated 05.11.2008. The Deputy Chief Personnel Officer/II ICF, in his reply has stated that the petitioner, who was earlier appointed as Traninee, Electrical Design Assistant, had been removed from Service, with effect from 11.01.2007, on account of his unauthorized absence from service for 143 days continuously from 09.01.2006 to 31.05.2006. It was https://hcservices.ecourts.gov.in/hcservices/ 5 also replied that the petitioner's appeal for re-instatement in service has been turned down by the Appellate Authority. 13. Taking through the declaration column in OMR application form issued by the TNPSC and the Commission's instructions to the Candidates, learned counsel for the respondents submitted that in case any Criminal/Disciplinary action is taken against or if any punishment is imposed against such persons, the candidate is bound to furnish the information in the separate sheet and as per Rule 12(b) of the General Rules of Tamil Nadu State and Subordinate Service, no person shall be eligible for appointment to any service by direct recruitment unless he satisfies the Commission in cases where the appointment has to be made in consultation with it that his character and antecedents are such as to qualify him for such service. 14. According to the learned counsel, the Commission, with the material information regarding the disciplinary proceedings taken against the petitioner by the previous employer, when he was a trainee in the Southern Railway, has rejected the petitioner's application, after giving him a reasonable opportunity and therefore, there is no violation of principles of natural justice. He further submitted that whenever a notification is issued for recruitment to any post, 1000 and odd applications are received by the Commission and after a preliminary scrutiny of the details furnished in the OMR application form, the Commission permits the candidates to take up the examination. According to him, it is not possible at that stage to verify with the employers regarding the details of the previous employment and even after the examination, if the Commission finds that there is suppression of certain details, it can always order for cancellation of the provisional selection. 15. On the submission of learned counsel for the petitioner that though removal is not a dis-qualification for appearance in any of the TNPSC examination and therefore, the candidature ought to have been considered for the post notified, learned counsel for the respondents submitted that the said argument can be accepted, if there is no suppression in the application form. According to him, the Commission is concerned only with the details furnished in the application form and the intention of any candidate in not furnishing any details regarding the disciplinary action taken. 16. Learned counsel for the Commission further submitted that when the petitioner has to furnish the details regarding the period of his previous employment, he ought to have been furnished the details of the disciplinary action and the results thereof in a separate sheet. According to him, when the declaration column specifically requires the petitioner to state about the criminal or disciplinary action, initiated/pending/finalised against him, he should have furnished the details regarding initiation and finalisation of the disciplinary proceedings and in such circumstances, it is sufficient for the Commission to take appropriate decision. 17. As regards the contentions that only in the year 2009, the candidates are required to furnish the abovesaid particulars, in a separate sheet along with OMR application form and that such provision https://hcservices.ecourts.gov.in/hcservices/ 6 was not made in the provisional selection and that therefore, the petitioner cannot be blamed, learned counsel for the Commission submitted that it is not open to the petitioner to take advantage of any subsequent notification. For the reasons stated supra, he submitted that there is no manifest illegality in canceling the provisional selection and debarring the petitioner for one year. He prayed this Court to sustain the impugned order. 18. Heard the learned counsel for the parties and perused the materials available on record. 19. Before adverting to the rival contentions, it is necessary to extract certain clauses from the Information Brochure, enclosed along with the OMR application form issued by the TNPSC in the year 2007. As per the Information Brochure, Clauses 24 and 24A, states that, "Write the information asked for, if applicable". The check list for production of documents along with the application is given in the Instructions at Clause 25, which states that, "The candidate should send attested copies of the certificates to the Commission using the bigger outer cover supplied, (* if applied) 1.Postal receipt (to be pasted in the OMR application) 2.Evidence of Date of Birth (SSLC/HSC/TC) 3.Evidence of Educational qualification (SSLC/HSC/Diploma/ Degree/P.G.Degree or Provisional Certificate etc.,) 4.Evidence of Tamil qualification (viz., SSLC/HSC/Degree Certificate for having passed the Second Language Test (Full Test) in Tamil conducted by the Tamil Nadu Public Service Commission) 5.Evidence of Technical qualification* 6.Community Certificate from the competent authority (ie., Life Card)* 7.Certificate of character and conduct issued by Group A or Group B officer on or after the first day of the month in which the Advertisement announcing the vacancies is published in the dailies. 8.Certificate of Character and Conduct obtained from the Head of the Institution in which he/she last studied or studying. 9.Physical Fitness Certificate* 10.Physically challenged certificate from a Medical Officer to the effect that he/she is a fit person to discharge his/her duties and with the entries therein regarding the percentage of physical handicap* 11.Income Certificate in respect of physically challenged persons, who claim fee exemption* 12.A certificate of Destitute Widow from the RDO or the Assistant Collector or the Sub-Collector concerned in the format prescribed.* 13.A certificate as evidence for claim in respect of Ex- Serviceman* 14.Evidence of Practical Experience if any prescribed for the post advertised.* https://hcservices.ecourts.gov.in/hcservices/ 7 15.Medical Registration Certificate/ Bar Council Registration Certificate/ Driving Licence/ Declaration in separate sheet* 16.Evidence of extra-curricular activities if any* 17. Other special records, if any specified in the Notification/Advertisement. Note: Original documents need not be sent Xerox copies of documents duly self attested by the candidates or attested by Group A or Group B officers should be sent along with the application. If the copies of certificates referred to above are not received, the candidates's application will be summarily rejected." 20. In Column No.24 in the OMR application form issued in the year 2007, the candidates have to furnish the particulars of the previous/present employment and the said column is extracted hereunder: 24. Particulars of previous/present employment Post & Office From To 21. After filing up of all the details, the candidate has to furnish the following declarations, "(1 ) I hereby declare that all the particulars furnished in the application are true, correct and complete to the best of my knowledge and belief. In the event of any information being found false or incorrect or ineligibility being detected before or after the examination, the action can be taken against me by the TNPSC. (2) I declare that I fulfil all the eligibility conditions prescribed for admission to the examination. (3) I have informed my employer in writing that I am applying for this Examination. (4) I have gone through the Instructions Brochure and the Commission's notification/Advertisement for this Recruitment below filing up the application form. I also certify that I have not been debarred by the TNPSC or any other recruiting agency. I also certify that no criminal or any disciplinary proceeding has been initiated or pending against him. (5)I declare that I possess the physical standards prescribed for the post (s) for which I am not applying. (6) I hereby declare that I will not be a party to any kind of canvassing on my behalf." 22. In the Instructions to Candidates, Clause 1(vi) states that filing in of the application form should be correct and complete and it should be sent with all the documents as required in the Commission's Notification/Advertisement"/Brochure and "Instructions, etc., to Candidates", which form part of the test for selection. Failure in this regard will entail summary rejection of the application. https://hcservices.ecourts.gov.in/hcservices/ 8 23. Clause 15(g) deals with the No Objection Certificate and Notes (ii) to the said Clause states that in case any criminal/disciplinary action is taken against or if any punishment is imposed against such persons, after the production of "No Objection Certificate" and before the actual appointment, such candidates should report this fact forthwith to the Commission, indicating their Register Number. 24. In the case on hand, when the petitioner was provisionally selected on the basis of the marks and when his results were withheld, for want of certain details regarding his previous employment for the oral test held on 20.03.2008, the petitioner has come forward to furnish certain information that he was removed from the post of Apprentice Junior Engineer (temporary) at Integral Coach Factory, Southern Railway, Chennai, on 11.01.2007 A.N., due to unauthorized absence from duty, without permission and that he had also made an appeal to the higher officials. Therefore, the Commission was constrained to address the Deputy Chief Personnel Officer/II ICF, who had confirmed the order of removal and further stated that the appeal for reinstatement has been turned down by the appellate authority. 25. While that be the factual position of the previous employment, the petitioner had furnished only the following details in the application form, viz., "Apprentice Training JE; Southern Railway (Temporary) from 12.03.2004 to 11.02.2005 and Apprentice Training JE, ICF Chennai (Temporary) 12.02.2005 to 11.01.2007." Thus it could be seen that though the declaration specifically states that the petitioner should certify that no criminal nor any disciplinary proceedings has been initiated or pending against him and when the check list for production of documents, as required in Column No.25, which specifically states that the other special records, if any specified in the Notification/Advertisement has to be furnished, the petitioner has failed to furnish the same to the Commission and that the initiation and the final decision on the disciplinary action, had come to light only during verification. 26. At this juncture, it is to be noted that thousands and thousands of application forms are received by the TNPSC, whenever they conduct examinations for appointment to various State and Subordinate Service in the State of Tamil Nadu. Therefore, the candidates will be permitted to take up the examination, on the basis of the details furnished. Initial scrutiny of the details furnished in the application form along with the documents, as per the Check List, would confirm to its correctness of the entries made in the relevant columns. 27. Considering the magnitude of applications received, when the number of posts notified by the Commission, it is not possible for the Commission to conduct any roving enquiry or call for the details from the previous employers, as to the nature of disciplinary action or criminal cases, initiated, pending or finalised. It is obligatory on the part of the applicant to a post notified, to submit the true and correct particulars of the details called for in the relevant columns and also support the same with the documents, wherever required. When the TNPSC in the notification issued in the year 2007 specifically required an applicant to make a declaration about the details of the disciplinary https://hcservices.ecourts.gov.in/hcservices/ 9 action/criminal case and also furnish other special records, if any, specified in the advertisement or notification, the petitioner ought to have furnished the details of the disciplinary action taken against him. 28. Though the petitioner has contended that non-furnishing of the abovesaid particulars are not intentional and removal from service is not a bar for recruitment, the same cannot be countenanced for the reason that when the petitioner was removed from service on 11.01.2007, for his misconduct of unauthorized absence, he should have furnished the details, when he made the declaration on 23.07.2007. So far as the Commission is concerned, it is only a recruitment body, which acts on the basis of the details furnished. The details called for in the application are only to ascertain the eligibility of a person to appear in the examination and if there is any suppression of details, the Commission can either summarily reject the application or cancel the provisional selection, if the Commission, at a later point of time, has any knowledge of suppression. 29. As permission to take up the examination is purely based on the details furnished along with the supporting documents wherever required and on the basis of the declaration, it would be impossible for the Commission at the time of initial scrutiny to conduct any roving enquiry into the details furnished. That is why a check list is directed to be furnished, along with the documents, in respect of the particulars 1 to 17 mentioned in the application form at column NO.25. Though removal is not a bar for entry into State and Subordinate Services of the State of Tamil Nadu, what is relevant to be considered is whether there was any suppression of any particulars called for. Intention to withhold an information by the applicant on the application form is immaterial and any details with regard to disciplinary/criminal action, initiated/pending/finalised ought to have been furnished in the application form in a separate sheet. Is a given case, if