Dr. D. Suresh Kumar vs The Secretary, Tamil Nadu Public Service Commission

N. Paul Vasanthakumar, J.—Prayer in the writ petition is to call for the records of the respondent pertaining to the written examination held

for direct recruitment to the post of Assistant Surgeon (General/Specialities) in the Tamil Nadu Medical Service 1999 on 27.11.1999 and

28.11.1999, particularly in respect of candidates belonging to backward class and to verify as to the correctness of the non-selection of the

petitioner by the respondent for oral test as intimated in the memorandum No. 4840/QD-D1/2000 dated 4.7.2000 issued by the respondent and

direct the respondent to permit the petitioner to attend oral test for the post of Assistant Surgeon (General/Specialities) in the Tamil Nadu Medical

Service 1999.

The brief facts necessary for disposal of the writ petition are that the respondent issued notification on 22.7.1999 and invited applications against

778 vacancies for direct recruitment for the post of Assistant Surgeon (General/Specialities) in the Tamil Nadu Medical Service, 1999. The

distribution of vacancies as stated in the advertisement are as follows,

Schedules Castes .. 139 (including 42 vacancies reserved for women)

Scheduled Tribes .. 9 (including one carried towards vacancy and two vacancies reserved for women)

Most Backward Classes/ .. 155 (including 46 vacancies Denotified Communities reserved for women)

Backward Classes .. 234 (including 70 vacancies reserved for women)

General Turn .. 241 (including 72 vacancies reserved for women)

Petitioner submitted his application for the said post and his application was duly acknowledged by the respondent. Petitioner was permitted to sit

for the written examination held on 27.11.1999 and 28.11.1 999. In the written examination, petitioner secured the following marks,

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Sl. No. Subject Max.Marks Marks obtained

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General Knowledge 100 52.26

General Tamil/ 100 74.36

General English

Optional Subject-I 300 186.63

Optional Subject-II 300 236.17

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Total ... 549.42

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Petitioner belongs to Agamudayar caste, which is classified as Backward Class in the list furnished in the Government Order issued by the Tamil

Nadu Government. The prescribed marks for the Backward Class candidates to be called for oral test was fixed as 530. Petitioner secured

549.42 marks, which is more than the prescribed marks for permitting the petitioner to appear for the oral test. Petitioner, having not been called

for the oral test, submitted a representation on 9.9 .2000 and requested the respondent to permit him to appear for the oral test. Since no reply

was given, petitioner filed O.A. No. 7033 of 2 000, which is now transferred to this Court. 3. The Tamil Nadu Administrative Tribunal, while

admitting the Original Application on 22.9.2000, passed an interim order that if any interview is to be conducted for other candidates, the

petitioner shall also be allowed to participate in the oral test, however the result shall be withheld until further orders.

Respondent herein filed a counter affidavit wherein it is stated that classification of candidates as SC/ST/BC is being made only if they belong to

the state of Tamil Nadu and not to any other state. Since the birth place of petitioner''s father is out of Tamil Nadu, petitioner was not treated as

backward class candidate, even though he produced community certificate and obtained the required cut off marks eligible to attend for oral test. It

is further contended that the petitioner''s representation dated 9.9.2000 was received by the respondent and without waiting for reply petitioner has

filed the original application on 22.9.2000. According to the respondent, the interim order could not be complied with in view of the fact that the

oral test for all the candidates was over between 18.2.2000 to 21.3.2000 and the list of selected candidates was also sent to the Government. In

the counter affidavit it is admitted that the petitioner has secured 549.42 marks in the written test and the cut of mark for General Turn candidates

was 560.75 and for the Backward Class was 530.82. Since the petitioner was not considered as Backward Class candidate, he was not called

for the oral test even though he secured 549.42 marks.

From the above averments in the affidavit as well as counter affidavit, the undisputed facts are that the marks secured by the petitioner was

549.42 and that if he is considered as Backward Class candidate, he is entitled to be called for oral test.

The learned Counsel for the petitioner submitted that the community certificate to be produced by the candidates is only that of the candidates

and not that of the father of the candidates. Learned counsel argued that the place of birth of the father is irrelevant for the purpose of deciding the

community status of the candidates, and therefore not treating the petitioner as Backward Class candidate, in spite of his producing community

certificate validly issued, is illegal and due to the said illegality petitioner was not called for the oral test and consequently he was not selected for

the post.

The learned standing counsel for the Tamil Nadu Public Service Commission submitted that in accordance with the rules and the past practice

only the respondent did not treat the petitioner as Backward Class candidate his father''s place of birth is not in the state of Tamil Nadu.

I have considered the rival submissions of the learned Counsel for the petitioner as well as the learned Standing Counsel for the respondent.

A Division Bench of this Court in the judgment reported in 2000 WLR 833 (V.R. Rajeswar v. Tamil Nadu Public Service Commission and

Ors.) considered a similar issue as against the very same respondent in so far as the post of Civil Judge was concerned. The Division Bench in the

said decision held that whether a person belongs to or does not belong to Tamil Nadu, does not depend solely on the place of birth of the person''s

parents, but is dependent on several other factors as well, and those born and domiciled in Tamil Nadu must be regarded as ''belonging'' to Tamil

Nadu for the purpose of claiming the benefits of reservation. The Division Bench held that the stand of the respondent taking note of the place of

birth of the parents is improper and the petitioner in the above writ petition was directed to be treated as a person ''belonging'' to the state of Tamil

Nadu for the purpose of extending him the benefits accorded to the Backward Class candidates. The said direction was given by the Division

Bench after taking note of the fact that on evaluation of answers of the petitioner in the said case it was found that the petitioner therein did not

qualify himself for being called for interview/oral test.

Applying the said decision of the Division Bench, which has become final, I hold that the action of the respondent in treating the petitioner as

general candidate instead of treating him as Backward Class candidate is illegal and contrary to the above referred decision. The difference

between this case and the one decided by the Division Bench referred above is that the petitioner herein secured higher marks than the prescribed

marks and he is eligible to be called for the oral test as he had secured 549.42 marks as against the requirement of 530.82 marks. Had the

petitioner been permitted to appear in the oral test, there would have been a chance of his getting selected under the Backward Class category.

Hence it is to be declared that the petitioner''s just claim was unjustly denied by the respondent.

The learned Counsel for the respondent argued that the selection was over as early as in the year 2000 and no relief could be granted at this

stage. The said submission is without any merit because the petitioner challenged the action of the respondent as early as in the year 2000 itself and

the original application was admitted on 22.9.2000 itself. It is well settled in law that the petitioner cannot be denied the benefits, merely because

the case is not disposed of immediately on any reason, if he is otherwise entitled to legally.

The learned Counsel for the respondent reiterated that as the selection was over in the year 2000 and thereafter two selections are also over

and at this stage it may not be proper to conduct oral test for the petitioner alone based on the marks obtained by him in the selection made in the

year 2000.

The Honourable Supreme Court in the decision reported in Vikram Singh and another Vs. The Subordinate Services Selection Board,

Haryana and others, in para 10, issued directions to the respondents before the Supreme Court to give appointment to the appellants therein in the

post of Excise Inspector in case they are found otherwise suitable for such post. It was made clear that in case the appellants become over aged

during the intervening period, the same shall not be considered as disqualification for their appointment. The Respondent was directed to take

suitable steps and issue proper orders for appointing the appellants within one month of the communication of the said order. The matter in issue

before the Supreme Court was regarding the selection made pursuant to the advertisement dated 7.8.1985. In that case also several other

recruitments were made subsequent to the filing of the writ petition before the Punjab & Haryana High Court and during pendency of the matter

before the Honourable Supreme Court, still the Honourable Supreme Court gave the direction as stated supra and therefore there is no

impediment to give such a direction to the respondent herein to conduct oral test for the petitioner and if he is found eligible he shall be selected.

In the light of the above cited Supreme Court judgment there is no escape for the respondent but to permit the petitioner to appear for the oral

test and if he is found eligible, he is entitled to be appointed. As the selection process will be completed only after appearance in the oral test no

positive direction to appoint the petitioner can be given at this stage. Therefore a direction is given to the respondent to treat the petitioner as

backward class candidate for the selection conducted in the year 2000. As the petitioner was wrongly denied appearance in the oral test,

respondent is directed to conduct oral test for the petitioner and consider his claim along with the Backward Class (General) candidates of the year

2000 and pass orders within a period of six weeks from the date of receipt of copy of this order. I am issuing such direction only because

admittedly petitioner has got 549.42 marks, when the cut off marks for Backward Class candidates, according to the counter affidavit is only

530.82 marks.

The writ petition is allowed with the above directions. No costs.