IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:07.10.2009 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.No.9322 of 2007 K.Muthuswamy ...petitioner Vs 1.The Chairman, Tamil Nadu Public Service Commission, Omanthoorar Government Estate, Chennai – 600 002. 2.The Secretary, Tamil Nadu Public Service Commission, Omanthoorar Government Estate, Chennai – 600 002. ... Respondents PRAYER: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.505 of 2002 from the file of Tamil Nadu Administrative Tribunal to call for the records relating to 1)proceedings No.8750/PD-D2/97 dated 5.2.1999 of the Secretary, TNPSC (the second respondent herein) 2)Proceedings No.2569/PD-D2/99, dated 1.7.2000 of the Chairman, T.N.P.S.C. , (the first respondent herein) 3)Proceedings No.6433/PD-D2/2000, dated 29.3.2001 of the Chairman , T.N.P.S.C., (the first respondent herein) and set aside the same with a direction to grant all attendant and consequential relief with all prerequisites. For Petitioner : Mr.R.Muthukannu For Respondents : Mr.M.Baskar for TNPSC. ORDER The Original Application in O.A.No.505 of 2002 before the Tamil Nadu Administrative Tribunal is the present writ petition. https://hcservices.ecourts.gov.in/hcservices/ 2.The petitioner entered the service of Tamil Nadu Public Service Commission, (in short "TNPSC") as Junior Assistant on 29.06.1976. Subsequently, he was promoted as Assistant Section Officer on 08.01.1981 . He was further promoted as Section Officer on 20.01.1997. He rendered 25 years of unblemished record of service, which is not disputed . 3.The TNPSC is an agency, selecting the candidates for various posts, for the state of Tamil Nadu. In this case, TNPSC conducted the examination on the forenoon as well as afternoon of 13.12.1997 and also on the forenoon of 14.12.1997, for recruitment of Assistant Engineers (Rural Development). 4.The said examination was conducted in several centers throughout Tamil Nadu. The respective District Collectors sponsored the names for appointment of Chief Invigilator and Invigilator, for the conduct of the examination in each center.i.e., the Chief Invigilator and the Invigilator of each center, where examinations were conducted, were the employees of Tamil Nadu Government. The Staff members from TNPSC were deputed to the examination centers, in connection with the various items of work involved in the conduct of the examination.The petitioner and one Thiru D.Venkatesan, Assistant Section Officer were deputed from TNPSC, regarding the conduct of examination at the Municipal Higher Secondary School, Salem. The staff members deputed from TNPSC are to supervise the examinations and they were trained in the conduct of the examinations. 5. In the said Salem center, one Mr.A.Karunakaran, Head Assistant in Collector Office, Salem was appointed as Chief Invigilator and one Mr.Ramachandran, Junior Assistant, Collector Office, Salem was appointed as Invigilator. The Chief Invigilators were required to take delivery of question paper bundles from the Sub-Treasuries. While taking delivery, they should see that the proper question paper bundles were taken by them. The staff members of the TNPSC also should ensure that the Chief Invigilators took proper question papers and those question papers were distributed to the candidates, who appeared for the examinations . 6.The question papers meant for 14.12.1997 were distributed to the candidates, who appeared for the examination in the forenoon session on 13.12.1997 . Realising the mistake, the question papers were immediately collected back. Then, different question papers were given to the candidates. This time also, the question papers were meant for the afternoon session of 13.12.1997. 7.In view of this said confusion, the entire examinations throughout the state of Tamil Nadu were cancelled. This resulted in placing the petitioner under suspension, by an order dated 15.12.1997. Later, a charge sheet dated 19.05.1998 under Rule 17 (b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules was https://hcservices.ecourts.gov.in/hcservices/ issued, making the following three allegations . "1.That the said Thiru K.Muthuswamy, Section Officer, office of the Tamil Nadu Public Service Commission, Chennai-600 002 while functioning as an offical deputed to carry out the various items of work involved in the conduct of the Main Written Examination relating to the Post of Assistant Engineer (Rural Development) in the Panchayat Unions slated for 13.12.97 F.N. & A.N. and 14.12.97 F.N. at the Municipal Higher Secondary School, Salem has failed to supervise and see effectively that the correct bundles of question papers relating to the examination scheduled for 13.12.97 F.N. had been promptly taken delivery of without omission by the Chief Invigilator at the time of delivery of question paper bundles at the Sub-Treasury , Salem. 2.That during the month of December '97 and having been deputed to discharge the aforesaid duty at the said examination centre, the said Thiru K.Muthuswamy, Section Officer has not acted with due care and alterness before the commencement of the examination in the morning of 13.12.97 at a particular point of time of opening of the bundles of question papers as a consequence of which question papers taken therefrom at the first instance, were found meant for the examination scheduled for the following day i.e., 14.12.97 instead of for the 13.12.97 F.N. and the question papers taken from another bundle at the second instance were found meant for the examination, scheduled for the afternoon session instead of for the forenoon session of 13.12.97. Thereby he has miserably failed to supervise effectively over the process of opening of bundles of question papers in the said examination centre on the morning of 13.12.97 and he had thus violated the specific and strict instructions issued to him in this regard in this office Proceedings No.8230/ID-A/97, dated 4.12.97. 3.That during the said period and while functioning as aforesaid the said Thiru K.Muthuswamy, Section Officer has miserably failed in the discharge of the official duties and responsibilities entrusted to him in this aforesaid office proceedings his act of which has placed the Commission in an embarassing position leading to cancellation of the entire examination https://hcservices.ecourts.gov.in/hcservices/ and conduct of the examination afresh, on the plea of several affected candidates causing hardship to candidates and a burden of additional expenditure to the Government therefor." 8.An enquiry was conducted. The Enquiry Officer found that the charge Nos.1 & 2 were established and the charge No.3 was not established. The 2nd respondent, the Disciplinary Authority, passed an order dated 05.02.1999, based on the report of the Enquiry Officer, and imposed the punishment of reversion from Section Officer to Assistant Section Officer for 10 years. After the expiry of the punishment of reversion, the petitioner would be restored to the original post. After restoration, he would continue to draw the pay he was drawing before the reversion and the period of reverison would not count for further increments in the category of Section Officer. 9.The petitioner filed an appeal to the first respondent. On receipt of the appeal, the Appellate Authority felt that the findings of the Disciplinary Authority against the third charge was not correct. 10.That is, the Appellant Authority, differed from the findings of the disciplinary authority/enquiry authority . Hence, he recorded a differed view and sought explanation from the petitioner, on his views. After obtaining explanation, the Appellate Authority recorded the findings that all the three charges were established. 11.Though the appellate authority held that all the 3 charges were proved, while the disciplinary authority held that only 2 charges were proved, the appellate authority reduced the punishment from reversion for 10 years to reversion for 5 years. 12.In the meantime , the Chief Invigilator and the Invigilator, who were proceeded against for their lapses, were imposed with the punishment of stoppage of increment for one year without cumulative effect, by the Collector salem, by an order dated 07.12.1999. This was brought to the notice of the first respondent by way of revision.But the revision was rejected by the first respondent in the order dated 29.03.2001. 13.The petititioner, therefore, filed Original Application in O.A.No.505/2002 (W.P.No.9322/2007) to quash the order of the second respondent dated 05.02.1999, and the orders of the first respondent dated 01.07.2000 and 29.03.2001. 14.Heard, Mr.Muthukannu, learned counsel for the petitioner and Mr.M.Baskar, learned counsel for the respondents. https://hcservices.ecourts.gov.in/hcservices/ 15.The only contention of the learned counsel for the petitioner is that when the Chief Invigilator and the Invigilator were imposed with the minor punishment of stoppage of increment for one year without cumulative effect, the respondents were not justified in imposing the different punishment on the petitioner. It is submitted that the main duty relating to collection of the question papers from the Treasury and distribution to the candidates mainly rests with the Chief Invigilator. Since, the Chief Invigilator was imposed with minor punishment, imposing major punishment to the petitioner is arbitrary, discriminatory and violative of Article 14 of the Constitution. The learned counsel for petitioner relies on the following decisions for the said proposition . 1.Man Singh Vs State of Haryana and Others reported in (2008) 8 MLJ 518 (SC). 2.T.R.Venkatachary Vs The Special Officer, Corporation of Madurai reported in 2002 Writ L.R. 449. 3.M.Rajamanickam Vs The Executive Director, Bharat Heavy Electricals Ltd., reported in 1997 Writ L.R. 536. 4.N.Nandagopolan Vs The Secretary to Government reported in 2007 Writ L.R. 52 5.V.Arulkumar Vs Housing and Urban Development Corporation Ltd., (HUDCO) reported in 2009 (3) CTC 388. 16. When the first respondent passed the order dated 01.07.2000, modifying the punishment of 10 years reversion to 5 years reversion, the petitioner did not bring to the notice of the first respondent about the order of the District Collector , Salem, imposing a minor punishment on the Chief Invigilator and the Invigilator. The petitioner was not aware of the minor punishment being imposed by the District Collector. As soon as he came to know the imposition of minor penalty to the Chief Invigilator, the petitioner filed a revision to the first respondent . The first respondent rejected the revision in the order dated 29.03.2001. While rejecting the revision petition, the first respondent held as follows : "I have gone through the revision petition carefully. The Commission staff are deputed to various examination centres precisely to ensure that the examinations are conducted in a smooth manner and the revision petitioner has miserably failed to ensure that. It is not open to him to quote the punishment awarded to the Chief Invigilator and seek redressal since he has greater responsibilities to ensure that the https://hcservices.ecourts.gov.in/hcservices/ examinations are held properly in every respect. I do not find any valid reasons to modify the orders already passed, which cannot be said to be excessive considering the consequences of his lapses. I therefore reject the revision petition as devoid of merits". 17.The first respondent held in categorical terms that the petitioner bears greater responsibility than the Chief invigilator. In this regard the learned counsel for TNPSC submits that while the Chief Invigilator and Invigilator, who are the employees of the Tamil Nadu Government, are not trained in conducting examinations, the petitioner is trained in conducting the examination, being the staff of TNPSC. 18.It is further submitted that the the main job of TNPSC is to conduct periodical examinations for recruitment of various posts . Hence, the staff members of TNPSC are deputed to supervise the examinations. The petitioner, being the Secion Officer, who rendered 25 years of service, could not compare with Chief Invigilator, who is an employee of the Tamil Nadu Government and seek for modification of punishment, based on the punishment imposed on the Chief Invigilator. It is submitted that the TNPSC was put to embarassing position, due to the gross negligence of the petitioner, and it involved in huge expenses for conducting the examinations for the second time. It is also submitted that the candidates were also put to a lot of difficulties, due to the inaction on the part of the petitioner. The learned counsel for TNPSC strenously contends that the petitioner cannot make comparison with the Tamil Nadu Government employees and the punishment given by Tamil Nadu Government could not be compared for the disciplinary action that was initiated by the Commission. 19.I have considered the submissions made on either side. I have perused the judgments relied on by the learned counsel for the petitioner. In all those cases, the disciplinary authority is one and the same. Further, in all those cases, the Courts held that when employees are placed in same and similar situations, the concerned authorities shall not discriminate between one employee and another. 20.In this case, the first respondent categorically held that the petitioner is not similarly situated like that of Chief Invigilator. It is the categorical findings of the first respondent that the petitioner has greater responsibility, in conducting the examinations than the Chief Invigilator. In view of such categorical findings on fact by the first respondent, it cannot be said that the impugned orders suffer due to the exercise of power in a discriminatory manner. Hence, none of the judgements, apply to the facts of the case. Hence, there is no infirmity in the order of the https://hcservices.ecourts.gov.in/hcservices/ first respondent, in refusing to compare the petitioner with the Chief Invigilator. Hence the writ petition fails and accordingly the same is dismissed. 21. At this juncture, the learned counsel for the petitioner submits that he may be given liberty to make mercy petition to the first respondent to persuade him to modify the punishment from reversion, a major penalty to anyone of the minor penalties, without comparing with the Chief Invigilator and the Invigilator. 22. Accordingly, liberty is given to the petitioner to make a mercy petition to the first respondent and it is for the first respondent to consider the same and pass necessary order as expeditiously as possible . With these directions, the writ petition is disposed of . No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar gv To 1.The Chairman, Tamil Nadu Public Service Commission, Omanthoorar Government Estate, Chennai – 600 002. 2.The Secretary, Tamil Nadu Public Service Commission, Omanthoorar Government Estate, Chennai – 600 002. + 1 CC to Mr.R.Muthukannu,Advocate,SR.52232 + 1 CC to Mr.M.Baskar,Advocate,SR.51516 W.P.No.9322 of 2007 KU(CO) EM/2.11.09 https://hcservices.ecourts.gov.in/hcservices/