Ranjithkumar and Others vs The Secretary, Tamil Nadu Public Service Commission, Chennai 6 and The Controller of Examinations, Tamil Nadu Public Service Commission, Chennai 6 and Others etc. etc.

S. Nagamuthu, J.—Since, more or less, common grounds have been raised in all these Writ Petitions, they were heard together and they are

disposed of by means of this Common Order. The facts, which have given rise to these Writ Petitions, are as follows:-

The Tamil Nadu Public Service Commission [hereinafter referred to as ''the respondent Commission''] issued notification/advertisement calling for

applications for direct recruitment to the post of Forest Apprentice in the Tamil Nadu Forest Subordinate Services included in Group-IV services

to the vacancies for the years 2006-2007, 2007-2008 and 2008-2009. The total number of vacancies are 80, including one carried forward

vacancy for SC/ST. As per the notification, the distribution of vacancies will be as per the Rule of Reservation of appointments. The advertisement

further states that in G.O.Ms. No. 145, Personnel and Administrative Reforms (S) Department, dated 30.09.2010, the Government have issued

orders to fill up 20% of all vacancies in direct recruitment on preferential basis to persons studied in Tamil Medium. It is further stated that a

clarification, in this regard, is awaited from the Government, and hence, the distribution of vacancies is not announced. The candidates, who claim

reservation with reference to orders issued in the above Government Order, should enclose evidence in support of their claim in a separate white

sheet and applications submitted without evidence for PSTM [Persons Studied in Tamil Medium], will not be considered for the above said

reservation. It is also stated that if no qualified and suitable women candidates are available for selection against the vacancies reserved for them,

those vacancies will be filled by male candidates belonging to the respective communal categories. Reservation of appointment to ""Destitute

widows"", Ex-serviceman"" and ""Physically Handicapped"" will not apply to this recruitment.

As per the said notification, the educational qualification prescribed is as follows [vide Clause 5(B) of the Notification]:-

Candidates should possess the following or its equivalent qualifications on the date of this Notification (viz 24.11.2010)

(a) Must posses a Bachelor''s degree in Forestry or its equivalent degree of any recognized University

OR

(b) Must possess the Bachelor''s Degree or its equivalent degree of any recognized University in any one of the following subjects:

Agriculture

Botany

Chemistry

Computer Applications/Computer Science

Engineering (Agriculture/Chemical/Civil/Computer/Electrical/Electronics/Mechanical)

Environmental Science

Geology

Horticulture

Mathematics

Physics

Statistics

Veterinary Science

Zoology

Provided that only if candidates with the qualifications referred to in item (a) are not available for selection, candidates with qualifications referred

to in item (b) will be considered for selection.

[Emphasis supplied]

Note:

(1) The qualification prescribed for this post should have been obtained by passing the required degree course in the order of studies 10th, HSC,

Bachelor''s degree.

(2) Persons claiming equivalence of qualification should enclose evidence for such claim failing which their application will be summarily rejected.

For further details refer para-9 of the Instructions etc. to candidates.

Clause 5(c) of the Notification prescribes Physical Qualifications which are as follows:-

For Men:

(i) Must not be less than 163 Cms. in height

(ii) Must have a chest measurement of not less than 84 cms. (round the chest) on full expiration.

(iii) Must have a chest expansion of not less than 5 Cms. on full inspiration.

For Women:

(i) Must not be less than 150 Cms. in height

(ii) Must have a chest measurement of 79 Cms. (round the chest) on full expiration.

(iii) Must have a chest expansion of not less than 5 Cms on full inspiration.

Note: The following minimum height Standards is allowed in case of candidates belonging to Scheduled Tribes and races such as Assamese,

Bhutanese, Garhwalis, Gorkhas, Kumoanis, Ladakhes, Mizo, Naga, Nepalese, Sikkimese and those from Arunachal Pradesh. Lahaul and Spiti

Meghalaya:

Male Candidates: 152 Cms

Female Candidates: 145 Cms

The Notification prescribes Physical Test as follows:-

(D) PHYSICAL TEST:

(a) A candidate will be required to undergo a physical test consisting of a walk over 25 Kms and 16 Kms to be completed in four hours by male

and female candidates respectively, which will be conducted by the Principal Chief Conservator of Forests. A certificate to this effect must be

produced from a Gazetted Forest Officer nominated by the Principal Chief Conservator of Forests on his behalf.

(Walking Test will be conducted only at Chennai.)

(b) An applicant must satisfy a Medical Board in Chennai as to his/her physique, fitness and capacity for rough outdoor work in the Forest

Department.

Clause 6(A) of the Notification deals with the Scheme of Written Examination (Objective Type) and Oral Test which reads as follows:-

Note:- [omitted as unnecessary for these writ petitions]

The important clause is Clause (8) of the Notification which speaks of the procedure of selection. The said clause reads as follows:-

PROCEDURE OF SELECTION:

Selection will be made in three successive stages i.e., (i) Written Examination (ii) Physical Test (Walking Test) and (iii) Oral Test in the shape of an

interview. Final selection will be made on the basis of the total marks obtained by the candidates at the Written Examination and Oral Test taken

together subject to the rule of reservation of appointments and subject to qualifying Physical Test. Appearance in each subject of the Written

Examination, Physical Test and Oral Test is compulsory. A candidate who has not appeared in any of the subjects or the Physical Test will not be

considered for Oral Test, even if he/she secures qualifying marks in the Written Examination. (For further details please refer paragraph 22(b) of

the instructions, etc. to candidates'').

The Petitioners, in all these Writ Petitions, are applicants for the said post. So far as the individual educational qualifications of the petitioners are

concerned, the petitioner in W.P. No. 27500 of 2012 is a post graduate in Applied Life Biology and the petitioners in the rest of writ petitions are

non forestry graduates. They were admitted for the written examination. Subsequently, they were called for physical test and they are qualified in

the same also. Thereafter, the respondent Commission published the list of candidates who have been admitted provisionally for oral test scheduled

to be conducted between 22.08.2012 and 23.08.2012. In the said list, the names of the Petitioners do not find a place. According to the

Petitioners, as per the procedure of selection, they should have been called for oral test. With the said grievance, the petitioners have approached

this court with these writ petitions questioning the said provisional list for oral test.

During the hearing of these Writ Petitions, one of the grievances expressed by the petitioners was that the marks secured by the candidates in

the written examination were not published and instead, the register number of the candidates provisionally admitted for the oral test alone had

been published. It was contended that they have right to know the marks. It was opposed by the Commission, referring to clause 22(b) of the

Instructions to the Candidates, etc that mark list will be published only after final selection. The said issue was taken up as a preliminary issue. After

hearing the counsel at length, this Court passed an interim order on 06.09.2012 issuing the following direction:-

The respondent/TNPSC is directed to publish the marks obtained by all candidates in the written examination held as per Advertisement No. 254

for the post of Forest Apprentice in the Tamil Nadu Forest Subordinate Services included in Group VI services to the vacancies for the years

2006-07, 2007-08 and 2008-09. It is further directed that the respondent/TNPSC shall also publish cut-off marks prescribed by the Commission

for all categories for calling the candidates for oral interview. The said exercise shall be completed on or before 17.09.2012. It is further directed

that the final selection list of candidates shall not be published until further orders from this Court.

The above interim direction was duly complied with and thus, as of now, the candidates know the marks obtained by them in the written

examination as well as the cut off mark for each category. Subsequently, during the course of hearing of these writ petitions, the Secretary, Tamil

Nadu Public Service Commission, Chennai, has submitted a report to this Court by way of typed set of papers wherein, he has given the following

details:-

Total number of candidates applied for the post 10911

Total number of candidates appeared for written 3642

examination

Total number of candidates sent for Physical Test 1200

Total number of candidates qualified in the Physical Test 716

Total number of candidates having Decree in Forestry 131

qualified in Physical Test

Total number of candidates in Non-Forestry decree 1069

qualified in the Physical Test

Number of candidates summoned for Oral Test of all 170

branches in degree qualification including Forestry

Number of candidates attended Oral Test of all branches169

in degree qualification

According to the respondent Commission, as stipulated in clause (8) of the Notification, the selection will be made in three successive stages

i.e., (i) written Examination (ii) Physical Test (walking Test) and (iii) Oral Test in the shape of an interview. The Final selection will be made on the

basis of the total marks obtained by the candidates at the written Examination and Oral Test taken together subject to the rule of reservation of

appointments and subject to qualifying Physical Test. According to the respondent Commission, the provisional list of candidates for oral test was

prepared in the following manner [vide report-paras 3, 4 & 5]:-

AS per the procedure 22(b) of the instruction etc., to the candidates which is part of procedure of selection, the commission has arranged the

list of candidates who have successfully completed written test and physical test in terms of reservation of vacancies applicable to each category

based on the educational qualification of Forestry and non-Forestry degree.

It is submitted that 131 candidates who have qualified in written examination and physical test for available final selection.

By applying rule of reservation for 80 vacancies, totally 170 candidates possessing Forestry Degree and also Non-forestry Degree holder are

arranged on the merit basis on descending order and summoned for interview for final selection. In the said process even among the 131 Forestry

graduates appeared for written examination and qualified in the Physical Test, 88 candidates alone having degree in Forestry are summoned for

interview for final selection. The balance 82 candidates summoned for interview are non-Forestry graduates.

Since, clause 22(b) of the Instructions to the Candidates, etc., has been extensively quoted in the report, at this juncture, we may refer to

clause 22(b) of the Instructions to the candidates, which read as follows:-

(b) Posts for which selection is made on the basis of Written Examination and Oral Test where the selection is made on the basis of both, Main

written Examination/Written Examination and Oral Test, the Main Written Examination/Written Examination will precede the Oral Test. If the

number of vacancies notified/reserved to be filled up for any one or more of the reservation groups (viz., Scheduled Castes, Scheduled Caste

(Arunthathiyars), Scheduled Tribes, Most Backward Classes/Denotified Communities, Backward Classes(other than Muslim) or Backward

Classes (Muslim) or General Turn) is five and above, the number of candidates to be admitted to the Oral Test shall be two times the number of

vacancies for which recruitment has to be made against those reservation groups based on the marks obtained by the candidates at the Main

Written Examination or Written Examination, as the case may be. Similarly, if the number of vacancies in any one or more of the remaining

reservation groups for the same recruitment is four and below, the number of candidates to be admitted to the Oral Test from those particular

reservation group(s) shall be three times the number of vacancies for which recruitment has to be made against those reservation group(s). In

respect of the posts, the total cadre strength of which is one only and for which the rule of reservation of appointments does not apply, the number

of candidates to be admitted to the oral test on the basis of the marks obtained at the Written Examination will be three. The final selection will be

made on the basis of the total marks obtained by the candidates at the Main written Examination or Written Examination, as the case may be, and

Oral Test taken together subject to the rule of reservation of appointments wherever it applies. Appearance in all the papers at the Main Written

Examination/Written Examination and for Oral Test is compulsory. The candidates who have not appeared for any of the subjects in the Main

Written Examination/Written Examination will not be considered for selection even if they secure the minimum qualifying marks for selection. The

marks obtained by the candidates appearing for the Oral Test, both in the Written Examination as well as in the Oral Test will be placed in the

Notice Board in the Office of the Tamil Nadu Public Service Commission in the evening either on the last day fixed for Oral Test or on the

succeeding working day. The same will also be made available on the internet in the Commission''s website www.tnpsc.gov.in.

Now, It is obvious that it is the stand of the respondent Commission that the number of candidates to be admitted to the oral test shall be two

times the number of vacancies for which the recruitment has to be made against those reservation groups based on the marks obtained by the

candidates in the written examination. Here, in the instant cases, since the total number of vacancies are 80, according to the respondent

Commission, they have admitted 170 candidates for oral test. Out of 170 candidates, 88 candidates are Forestry graduates and 82 candidates are

Non-Forestry graduates. As we have already pointed out, the total number of Forestry graduates who are eligible for oral test based on the marks

obtained in the written examination are 130. But, 15 candidates did not appear for the physical test and 27 candidates failed in the physical test.

Therefore, 88 Forestry graduates were included in the provisional list for oral test and the rest of the 82 candidates are Non-Forestry graduates.

Admittedly, shortlisting of candidates for oral test has been made by applying the rule of reservation and applying 200 point communal roster at this

stage itself.

Now, let us turn to the contentions of the petitioners. The first contention of the petitioners is that the rule of reservation should be applied only

during the final selection and not at every stage of the selection. But, quite contrary to the same, according to the petitioners, even for calling the

candidates for oral test, the rule of reservation has been illegally applied and thus, their valuable right to participate in the oral test has been denied.

To substantiate this contention, the learned counsel relied on the judgments of the Hon''ble Supreme Court in Indra Sawhney etc. etc Vs. Union of

India and others, etc. etc., R.K. Sabharwal and others Vs. State of Punjab and others, ; Bimlesh Tanwar Vs. State of Haryana and Others, ; and

finally in Rajesh Kumar Daria Vs. Rajasthan Public Service Commission and Others, .

The next contention of the petitioners is that the 200 point communal roster maintained as per the Tamil Nadu State and Subordinate Service

Rules should not be applied and instead, 100 point communal roster alone should be applied, that too, at the final selection and not for shortlisting

the candidates for oral test.

Let us, at the first, take up the first contention for consideration. The crux of the contention of the petitioners is that roster points prescribed

under Rule 22 of he Tamil Nadu State and Subordinate Service Rules shall be applied only at the time of final selection and that too to identify the

number of vacancies earmarked for various categories, such as, reservation categories and open category. In Rajesh Kumar Daria''s case, cited

supra, the Hon''ble Supreme Court took the view that the roster points shall be used only for identifying the number of vacancies available to

various categories including the open quota in a particular selection and not for any other purpose.

But, it is the contention of the learned Advocate General as well as the learned Senior Counsel appearing for the TNPSC that the roster point

shall be applied at the stage of shortlisting the candidates for oral test and that the law laid down by the Hon''ble Supreme Court in Rajesh Kumar

Daria''s case, cited supra, has got no application to the State of Tamil Nadu inasmuch as, according to them, here, the rule of reservation is

specifically governed by rule 22 of the Tamil Nadu State and Subordinate Service Rules; whereas in the State of Rajasthan, there was no such rule

of reservation in force.

In this regard, I may state that I had an occasion to deal with an identical question in a batch of writ petitions in K.R. Shanthi Vs. The

Secretary to Government, Education Department, Fort St. George, Chennai 9 and The Chairman, Teachers Recruitment Board, 4th Floor, E.V.K.

Sampath Maaligai, DPI Compound, College Road, Chennai 6, . In the said case, I have elaborately considered the law on the subject laid down

by the Hon''ble Supreme Court commencing from The State of Madras Vs. Srimathi Champakam Dorairajan, . I have extracted the law laid down

in Indra Sawhney etc. etc Vs. Union of India and others, etc. etc., as follows:-

... reservation under Article 16(4) do not operate on communal ground. Therefore if a member from reserved category gets selected in general

category, his selection will not be counted against the quota limit provided to his class....

I have also referred to the subsequent judgment of the Hon''ble Supreme Court in Anil Kumar Gupta and Others Vs. State of U.P. and

Others, wherein, the Hon''ble Supreme Court has held as follows:-

The proper and correct course is to first fill up the Open Competition quota (50%) on the basis of merit; then fill up each of the social reservation

quotas, i.e., S.C., S.T. and B.C; the third step would be to find out how many candidates belonging to special reservations have been selected on

the above basis. If the quota fixed for horizontal reservations is already satisfied-in case it is an overall horizontal reservation-no further question

arises. But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against

their respective social reservation categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of

compartmentalized horizontal reservation, then the process of verification and adjustment/ accommodation as stated above should be applied

separately to each of the vertical reservations. In such a case, the reservation of fifteen percent in favour of special categories, overall, may be

satisfied or may not be satisfied.)

The judgment in Indra Sawhney''s case came to be considered again in R.K. Sabharwal and others Vs. State of Punjab and others, by the

Hon''ble Supreme Court. That was a case pertaining to the roster points to be maintained in respect of reserved posts. In para 4 of the said

judgment, the Hon''ble Supreme Court has held as follows:

When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the

posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general

category are not entitled to be considered for the reserve posts. On the other hand the reserve category candidates can compete for the non-

reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the

percentage of reservation. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of

appointments or posts in favour of any backward class of citizen which, in the opinion of the State is not adequately represented in the Services

under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the backward class/classes for which the

reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a

particular backward class and its representation in the State Services. When the State Government after doing the necessary exercise makes the

reservation and provides the extent of percentage of posts to be reserved for the said backward class then the percentage has to be followed

strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the backward class have already been

appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a backward class has to be filled by way

of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is

reserved for the backward class. The fact that considerable number of members of a backward class have been appointed/promoted against

general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said

class but so long as the instructions/Rules providing certain percentage of reservations for the backward classes are operative the same have to be

followed. Despite any number of appointment/promotees belonging to the backward classes against the general category posts the given

percentage has to be provided in addition. We, therefore, see no force in the first contention raised by the learned counsel and reject the same.

In P.S. Ghalaut Vs. State of Haryana and Others, , however, a contrary view had been taken. In that case, while considering the purpose of

Roster, the Hon''ble Supreme Court, in Paragraph No. 4, has held as follows:

4.... It is seen that when the roster is maintained to give effect to the constitutional policy of reservation to render socioeconomic justice to the

concerned sections, respective places assigned to the candidates belonging to them, general candidates, backward classes or Scheduled Castes or

Scheduled Tribes, as the case may be, the change in the order of merit inevitably get affected. If original order of merit prepared by the Public

Service Commission or Selection Committee, if remains unaffected, roster becomes redundant and always remains unimplemented. The reserved

candidates always remain at the bottom of the select list unless selected as general candidates in the order of merit. To relieve such injustice and

hardship, roster is maintained and vacancies are filled up in the order maintained therein. The placement of candidates shall be to the respective

points fixed in the roster. Take for instance vacancy No. 1 and 6, as pointed out in the Chief Secretary''s letter have admittedly been reserved for

Scheduled Castes. Suppose recruitment was made to fill up ten vacancies, three candidates from Scheduled Castes were selected. The first one as

general and second and third were selected on the basis of reserved quota. The question is whether the first candidate will be put in the quota

allotted to the Scheduled Castes in the roster. Having been selected as a general candidate, though he is more meritorious than the second and

third candidates, he will not get the placement in the roster, reserved for Scheduled Castes i.e. No. 1 and 6 points. Consequently candidates Nos.

2 and 3 will get the placement at No. 1 and 6 and the first candidate will get the placement in the order of merit along with the general candidates

according to the order of merit maintained by the Selection Committee or the Public Service Commission. He cannot complain that having been

selected in the merit, he must be placed in the placement reserved for Scheduled Castes at point No. 1 in the roster. Equally, though general

candidate is more meritorious in the order of merit prepared by the Public Service Commission or the Selection Committee, when the

appointments are made and the vacancies are filled up according to the roster, necessarily and inevitably the Reserved candidates though less

meritorious in the order of merit maintained by the Public Service Commission would occupy the respective places assigned in the roster. Thereby

they steal a march over some of the general candidates and get seniority over the general candidates. This scheme is, therefore, constitutional, valid

and is not arbitrary.

But, the judgment in P.S. Ghalaut''s case [cited supra] was overruled by a Larger Bench of the Hon''ble Supreme Court in Bimlesh Tanwar

Vs. State of Haryana and Others, , wherein the Hon''ble Supreme Court in paras 40 & 52 has held as follows:-

An affirmative action in terms of Article 16(4) of the Constitution is meant for providing a representation of class of citizenry who are socially

or economically backward. Article 16 of the Constitution of India is applicable in the case of an appointment. It does not speak of fixation of

seniority. Seniority is, thus, not to be fixed in terms of the roster points. If that is done, the rule of affirmative action would be extended which

would strictly not be in consonance of the constitutional schemes. We are of the opinion that the decision in P.s. Ghalaut does not lay down a good

law.

In this case also, although there does not exist any statutory rule but the practice of determining inter se seniority on the basis of the merit list

has been evolved on interpretation of the Rules. A select list is prepared keeping in view the respective merit of the candidates. Not only

appointments are required to be made on the basis of such merit list, seniority is also to be determined on that basis as it is expected that the

candidates should be joining their respective posts almost at the same time.....

(Emphasis added)

The same view has been taken by the Hon''ble Supreme Court in Union of India (UOI) Vs. Ramesh Ram and Others etc.,

In Rajesh Kumar Daria''s case [cited supra], the Hon''ble Supreme Court explained the method to be adopted while making the selection as

against the general category as well as reservation categories in its judgment in paras 8 to 11 as follows:-

We may also refer to two related aspects before considering the facts of this case. The first is about the description of horizontal reservation.

For example, if there are 200 vacancies and 15% is the vertical reservation for SC and 30% is the horizontal reservation for women, the proper

description of the number of posts reserved for SC, should be: ""For SC: 30 posts, of which 9 posts are for women"". We find that many a time this

is wrongly described thus: ""For SC: 21 posts for men and 9 posts for women, in all 30 posts"". Obviously, there is, and there can be, no reservation

category of ''male'' or ''men''.

The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC,

ST and OBC under Article 16(4) are ''vertical reservations''. Special reservations in favour of physically handicapped, women etc., under Articles

16(1) or 15(3) are ''horizontal reservations''. Where a vertical reservation is made in favour of a backward class under Article 16(4), the

candidates belonging to such backward class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their

own merit, their numbers will not be counted against the quota reserved for the respective backward class. Therefore, if the number of SC

candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC

candidates, it cannot be said the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to

those selected under Open Competition category. [vide-Indira Sawhney (Supra), R.K. Sabharwal and others Vs. State of Punjab and others,

Union of India and others etc. Vs. Virpal Singh Chauhan etc., and Ritesh R. Sah Vs. Dr. Y.L. Yamul and others, . But the aforesaid principle

applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided

within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for scheduled castes in order of merit and then

find out the number of candidates among them who belong to the special reservation group of ''Scheduled Castes-women''. If the number of

women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special

reservation quota. Only if there is any shortfall, the requisite number of scheduled caste women shall have to be taken by deleting the

corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs

from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal

reservation for women. Let us illustrate by an example:

If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit,

from out of the successful eligible candidates. If such list of 19 candidates contains four SC women candidates, then there is no need to disturb the

list by including any further SC women candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the

next two SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the

bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four women SC candidates. [But if the

list of 19 SC candidates contains more than four women candidates, selected on own merit, all of them will continue in the list and there is no

question of deleting the excess women candidate on the ground that ''SC-women'' have been selected in excess of the prescribed internal quota of

four.]

In this case, the number of candidates to be selected under general category (open competition), were 59, out of which 11 were earmarked

for women, when the first 59 from among the 261 successful candidates were taken and listed as per merit, it contained 11 women candidates,

which was equal to the quota for ''General Category-women''. There was thus no need for any further selection of woman candidates under the

special reservation for women. But what RPSC did was to take only the first 48 candidates in the order of merit (which contained 11 women) and

thereafter, fill the next 11 posts under the general category with woman candidates. As a result, we find that among 59 general category candidates

in all 22 women have been selected consisting of eleven women candidates selected on their own merit (candidates at Sl. Nos. 2, 3, 4, 5, 9, 19,

21, 25, 31, 35 & 41 of the Selection List) and another eleven (candidates at Sl. Nos. 54, 61, 62, 63, 66, 74, 75, 77, 78, 79 & 80 of the Selection

List) included under reservation quota for ''General Category-women''. This is clearly impermissible. The process of selections made by RPSC

amounts to treating the 20% reservation for women as a vertical reservation, instead of being a horizontal reservation within the vertical reservation.

Similarly, we find that in regard to 24 posts for OBC, 19 candidates were selected by RPSC in accordance with merit from among OBC

candidates which included three woman candidates. Thereafter, another five women were selected under the category of ''OBC-women'', instead

of adding only two which was the shortfall. Thus there were in all 8 women candidates, among the 24 OBC candidates found in the Selection List.

The proper course was to list 24 OBC candidates as per the merit and then find out number of woman candidates among them, and only fill the

shortfall to make up the quota of five for woman.

(Emphasis added)

Relying on the above judgment and after having considered the stand taken by the Government, in K.R. Shanthi''s case, cited supra, in

Paragraph No. 27 of the judgment, this court has held as follows:-

Thus, the Teachers Recruitment Board itself has now impliedly conceded before this Court that the method of selection under various

categories already done by the Teachers Recruitment Board is not correct and therefore the lists of selected candidates already published are liable

to be withdrawn. Therefore, the entire select lists, including the select lists for the posts for which there is no challenge, are liable to be set aside. As

per G.O.Ms. No. 65 Personnel and Administrative Reforms (K) Department, dated 27.05.2009 and the Government Letters cited supra, there

shall be reservation for Backward Class (other than Muslims)=26.5%, Backward Class (Muslims)=3.5%, Most Backward Class/Denotified

Category = 20%, Scheduled Castes=18% and Scheduled Tribes=1%. (In the State of Tamil Nadu, whether total reservation can exceed 50% is

under examination of the Hon''ble Supreme Court]. Thus, as of now the reservation is 69% which is subject to the outcome of the case before the

Hon''ble Supreme Court. These reservations are vertical reservations. Similarly, there shall be reservation for women at 30%, physically challenged

at 2% and the persons studied in Tamil Medium at 20% (vide G.O.Ms. No. 145, Personnel and Administrative Reforms (S) Department, dated

30.09.2010). These three reservations are horizontal reservations. The open quota is 31%. Now it is for the Teachers Recruitment Board, as

undertaken before this Court to adhere to the above reservations by following the above method more particularly the method as illustrated by the

Hon''ble Supreme Court in Rajesh Kumar Daria vs. Rajasthan Public Service Commission reported in (2007) 8 SCC 785.

Finally, in the said judgment, this court issued the following directions in Paragraph No. 228:-

(i)... (omitted as unnecessary)

(ii)... (omitted as unnecessary)

(iii)... (omitted as unnecessary)

(iv)... (omitted as unnecessary)

(v) After such publication, the respondent Board shall call the candidates for certificate verification by strictly following the method of selection for

non-reserved category and reserved categories as indicated supra.

(vi) It is made clear that candidates to be selected as against the non-reserved category shall not be adjusted against the reserved category. (vii)

The interse seniority of the candidates selected shall be strictly based on merit namely the marks secured in the selection process and the same shall

not be as per the Roster points.

(viii) After making the selection by strictly following the above procedure, the respondent Board shall publish the list of the selected candidates in

its official website.

This court is informed that the above directions, except direction (vii), have been scrupulously followed by the Tamil Nadu Teachers

Recruitment Board. The learned Advocate General would submit that as against the direction (vii), writ appeals are contemplated by the

Government of Tamil Nadu.

The learned Advocate General appearing for the State as well as the learned Senior Counsel appearing for the TNPSC would submit that

Clause 22(b) of The Instructions to the Candidates, etc., has not been challenged in these writ petitions and so, the shortlisting of the candidates for

oral test applying the rule of reservation as per clause 22(b) cannot be questioned.

In this regard, I may state that there is no controversy before this Court in applying the communal roster at the time of final selection. But, the

controversy is as to whether the roster points could be used for shortlisting the candidates even for the purpose of oral test, in my considered

opinion, as has been held by this Court in K.R. Shanthi''s case cited supra, roster point is a device only to identify the vacancies earmarked for

various categories in a particular selection and not either for fixing the seniority of the candidates or for any other purpose in a particular selection

process. That apart, As per clause (8) of the Notification of the respondent Commission, final selection will be made only on the basis of marks

secured in the written examination as well as the oral test. Therefore, the question of applying the roster to apply the rule of reservation will arise

only at the time of final selection and not for shortlisting the candidates for the purpose of oral test.

But, it is the contention of the learned Advocate General that as per clause 22(b) of the instructions to the Candidates etc., the number of

candidates admitted to the oral test shall be two times the number of vacancies for which the recruitment has to be made against those reservation

groups based on the marks obtained by the candidates in the written examination. It is only by following the said instructions, shortlisting of the

candidates based on the marks secured in the written examination has been made and that as against each vacancy under a particular reservation

group two candidates have been called for oral test as against each vacancy. Similarly, as against each general category, two candidates have been

called for oral test as against each vacancy. Though there appears to be some force in the said argument. I find it very difficult to accept the same.

The Notification and the Instructions should be understood in the context of the judgments of the Hon''ble Supreme Court cited supra. Since as per

clause (8) of the Notification, which states that final selection will be made only on the basis of marks secured in the written examination and the

oral test, the respondent Commission ought to have ranked the candidates based on their marks in the written examination and to have called the

candidates based on rank for the purpose of oral test. After holding the oral test, the respondent commission ought to have selected the

candidates, based on merits, i.e., based on the total marks secured in the written examination and the oral test, provided the candidate has secured

minimum qualifying marks as prescribed in clause 6(A) of the Notification i.e., 306 marks for Scs, SC(A), STs, MBCs/DCs, BCS (other than

BCMs) and SCMs and 408 marks for others. In the said process, in case sufficient number of candidates as against the reservation groups, both

vertical as well as horizontal, have been selected, then, the process will come to an end. For any reason, if sufficient number of candidates have not

been selected in any reservation group, then, the remaining candidates available [belonging to the same reservation category] alone shall be called

for oral test in the ratio of 1:2 and then the said reservation category''s remaining vacancies shall be filled up. To make it more understandable, let

us have the following illustration:-

Let us assume, out of 80 vacancies, 22 vacancies are earmarked for SC including SC(w), SC(A) and SC (A)(w). The candidates having Rank

Nos. 1 to 160 based on the written examination marks are called for oral test. Based on the marks secured in the written examination and oral test,

let us assume that some candidates get selected under open category and there are only 12 candidates found eligible for appointment as against 22

vacancies earmarked for SC. Now, the remaining 10 more vacancies for SC are to be filled up. The next stage is that 20 candidates belonging to

SC should be called for oral test by issuing a supplement list i.e., in the ratio 1:2. After the first stage is over, the candidates belonging to SC falling

from rank Nos. 161 to downwards should be segregated. Now, out of the segregated SC candidates 20 candidates should be short listed on the

basis of written examination marks and they should be called for oral test. Out of 20 candidates, based on the marks in the written examination and

the oral test together, 10 should be selected. Now, the total tally of selected candidates of SC works out to 22. For any reason, if out of the 20

candidates called for second phase of oral test, only 8 are qualified and there remains two more vacancies, then, the next 4 candidates in the SC

category based on their marks shall be called and out of them 2 should be selected.

The above procedure, in my considered view, is the correct procedure that should be followed for each reservation category. Obviously, the

respondent Commission has not followed this procedure. In view of the above settled position, it should be held that the rule of reservation shall be

applied only at the time of final selection and not at every stage of the selection process. Therefore, the action of the respondent Commission in

shortlisting the candidates for oral test by applying the rule of reservation is not correct, as it is not in tune with the judgements of the Hon''ble

Supreme Court in Rajesh Kumar Daria''s case and the other cases cited supra and so, the same is liable to be set aside.

Now, let us take up the second contention of the Petitioners. The learned counsel, Mr. M. Ravi, appearing for the petitioners in some of the

writ petitions, would submit that G.O.Ms. 55 Personnel and Administrative Reforms Department dated 08.04.2010 amending Part I and Part II of

the Tamil Nadu State and Subordinate Services Rules in Volume I of the Tamil Nadu Services Manual shall not be given retrospective effect so as

to cover the vacancies which arose prior to the date of coming into force of the said amended rules. To be precise, in the instant cases, according

to the notification, the vacancies notified arose for the years 2006-07, 2007-08 and 2008-09. The date of the notification is 24.09.2010. The

amendment prescribing 200 point communal roster came into force from 29.04.2009, whereas the vacancies notified were of the years prior to

29.04.2009. Therefore, according to the learned counsel, only 100 point communal roster, which was in force during the said years, should be

followed by the respondent Commission.

In this regard, we may refer to G.O.Ms. 55, by which the rule was amended. The Tamil Nadu Government Gazette Extraordinary dated

08.04.2010 reads as follows:-

In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Tamil Nadu hereby makes the

following amendment to the Part I and Part II of the Tamil Nadu State and Subordinate Services Rules in Volume I of the Tamil Nadu Services

Manual.

(i) The amendments 1(i)(b) and 2(a) hereby made shall be deemed to have come into force on the 29th October 2007;

(ii) The amendments except 1(i)(b) and 2(a) hereby made shall be deemed to have come into force on 29th April 2009.

Thus, it is crystal clear from the above Gazette Notification that two different dates have been specified in respect of the date of coming into force

of the different provisions of the amended rules. The amendments 1(i)(b) and 2(a) pertain to the reservation for ''Arunthathiyars'' and ''Backward

Class Muslims''. These two provisions, as per Gazette Notification, have come into being on 29.10.2007. It is obvious from the said Gazette

Notification that amendment 2(b) has come into force from 29.04.2009. By this amendment, Rule 22(1)(a) was substituted by deleting the then

existing rules. Rule 22(1)(a) as it stood prior to 29.04.2009 reads as follows:-

22(a). The unit of selection for appointment, for the purpose of this rule, shall be hundred, of which eighteen shall be reserved for the Scheduled

Castes, one for the Scheduled Tribes, Thirty for the Backward Classes (other than the Most Backward Classes and De notified Communities),

twenty for the Most Backward Classes and the Denotified Communities and thirty one shall be filled on the basis of merit.

The amended rule, as substituted w.e.f. 29.04.2009, reads as follows:-

(a) The unit of selection for appointment, for the purpose of this rule, shall be two hundred, of which thirty six shall be reserved for the Scheduled

Castes including six offered to Arunthathiyars on preferential basis amongst the Scheduled Castes, two for the Scheduled Tribes, fifty three for the

Backward Classes (other than Backward Class Muslims, Most Backward Classes, and Denotified Communities), seven for the Backward Class

Muslims, forty for the Most Backward Classes and the Denotified Communities and sixty two shall be filled on the basis of merit:

Provided that if even after filling up of the required appointments or posts reserved for Arunthathiyars amongst the Scheduled Castes in Schedule

III to this part, if more number of qualified Arunthathiyars are available, such excess number of candidates of Arunthathiyars shall be entitled to

compete with the other Scheduled Castes in the inter-se-merit among them and if any appointment or post reserved for Arunthathiyars remain

unfilled for want of adequate number of qualified candidates, it shall be filled up by Scheduled Castes other than Arunthathiyars;

From the above unamended as well as amended rules, it is obvious that prior to 29.04.2009, the unit of selection for appointment for the

purpose of reservation was 100; whereas, as per the amended rule, which came into effect on 29.04.2009, the unit of selection for appointment

for the purpose of reservation shall be 200. In other words, the 100 point communal roster, which was in force, has been done away with and in

its place 200 point communal roster has been introduced.

The explanation to sub rule (c) of Rule 22, as introduced by means of the amendment, further makes it ipso-facto clear that the vacancies

arising on and from 29.04.2009 shall be filled up as per Schedule III and all selections for appointment shall be started afresh from serial number

one in the said Schedule III with effect on and from the said date.

In the cases on hand, admittedly, the respondent Commission has applied 200 point communal roster for shortlisting the candidates for oral

test by applying the amended sub rule (a) to rule 22. Admittedly, as per the notification, in the instant case, the vacancies notified were of the years

2006-07, 2007-08 and 2008-09 i.e., these vacancies had arisen prior to 29.04.2009 and so, 200 point communal roster cannot be applied. In

this regard, the learned counsel, Mr. M. Ravi, relies on the judgment of the Hon''ble Supreme Court in P. Mahendran and others Vs. State of

Karnataka and others, . That was a case where the Karnataka Public Service Commission held selection for 200 posts of Motor Vehicle

Inspectors. As per the Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1962, the candidates possessing either Diploma

in Automobile Engineering or Mechanical Engineering were eligible for the said post. As per the said Notification, number of candidates, who were

possessing Diploma in Mechanical Engineering had also, applied. The service commission held interview in the month of August 1984 including the

candidates who were possessing Diploma in Mechanical Engineering. But, the process could not be completed due to certain interim orders

passed by the Karnataka High Court in Writ Petition challenging the reservation for local candidates. Finally, after the hurdle was over, the Service

Commission completed the interview on 2nd June 1987, declared the result of the selection on 22.06.1987 and the same was published in the

Karnataka Gazette dated 23rd July, 1987. In the meanwhile, the recruitment rule was amended w.e.f. 14.05.1987 omitting the qualification of

Diploma in Mechanical Engineering for the said post. After the said amendment, the very notification for selection process dated 28.09.1983 and

the select list dated 22.06.1987 were challenged on the ground that after the amendment dated 14.05.1987, the selection should have been done

only as per the amended rules and not as per the old rules. In other words, it was the contention before the Hon''ble Supreme Court that the

Diploma Holders in Mechanical Engineering were not eligible as per the amended rules and therefore, the select list should be quashed. While

considering the question as to whether amended rule is prospective or retrospective in force, in para 5 of the judgment, the Hon''ble Supreme

Court has held as follows:-

It is well-settled rule of construction that every statute or statutory Rule is prospective unless it is expressly or by necessary implication made to

have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the Rule must be held to

be prospective. If a Rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the

absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in the matter of procedure. The

amending Rule of 1987 does not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the

necessary intendment for enforcing the Rule with retrospective effect. Since the amending Rule was not retrospective, it could not adversely affect

the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of

selection had already commenced when the amending Rules came into force. The amended Rule could not affect the existing rights of those

candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment

moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control

over the subject matter.

The same view was subsequently reiterated in another judgment of the Hon''ble Supreme Court in P. Mohanan Pillai Vs. State of Kerala and

Others, wherein, in Paragraph No. 11, the Hon''ble Supreme Court has held as follows:-

It is now well-settled that ordinarily rules which were prevailing at the time, when the vacancies arose would be adhered to. The qualification must

be fixed at that time. The eligibility criteria as also the procedures as was prevailing on the date of vacancy should ordinarily be followed.

Very recently, in State of Bihar and Others Vs. Mithilesh Kumar, , the Hon''ble Supreme Court, while considering an identical question, in

Paragraph No. 20, has held as follows:-

The decisions which have been cited on behalf of the respondent have clearly explained the law with regard to the applicability of the rules which

are amended and/or altered during the selection process. They all say in one voice that the norms or Rules as existing on the date when the process

of selection begins will control such selection and any alteration to such norms would not affect the continuing process, unless specifically the same

were given retrospective effect.

From the above judgments, it is crystal clear that it is now well settled that unless it is either expressly or impliedly stated in the amended rule

that it has got retrospective operation, the amended rule shall not be applied retrospectively so as to affect the accrued rights of the candidates.

Applying the said well settled position of law, if we look into G.O.Ms. 55, it leaves no doubt that though the Gazette Notification is dated

08.04.2010, the Government has given with retrospective effect from 29.10.2007 in respect of amendments (1)(i)(b) and 2(a) which relate to

reservation for Arunthathiyars and Backward Class Muslims and has given the other amendments retrospective effect only from 29.04.2009. Thus,

the retrospective application has been restricted and it has been specifically declared that 200 point communal roster shall be applicable

retrospectively only from 29.04.2009 and the same shall not be used retrospectively for any period prior to 29.04.2009.

The explanation to sub-rule (c) to Rule 22, as amended, makes it abundantly clear that the vacancies arising on and from 29.04.2009 shall

alone be filled up as per 200 point communal roster. In the cases on hand, the notification clearly states that all these 80 vacancies have arisen for

the years 2006-07, 2007-08 and 2008-09. Since these vacancies have not arisen subsequent to 29.04.2009, as rightly pointed out by the learned

counsel, Mr. M. Ravi, these vacancies should not be filled up by applying 200 point communal roster. Instead, these vacancies should be filled up

only by applying the unamended rule providing 100 point communal roster.

But, it is pointed out by the respondents that in Clause (4) of the Notification, it has been declared that the rule of reservation for appointment

is applicable to the instant recruitment and the distribution of vacancies will be as per the rule in force. Relying on this clause, the learned senior

counsel would submit that the words ""rules in force"" would indicate that the rule as it was in force on 24.11.2010 [the date of notification of the

respondent commission]. As on 24.11.2010, the amended rules prescribing 200 point communal roster was in force. Therefore, according to the

respondent, the said roster has been rightly applied for shortlisting the candidates for oral test. The learned senior counsel would further add that

this clause in the notification has not been challenged and, therefore, it is not open for the petitioners to contend that 200 point communal roster

shall not be applied.

In the counter affidavit filed by the Deputy Secretary to the Government on behalf of the 4th respondent, it is stated that 200 point communal

roster is followed to accommodate the candidates as per the reservation quota. In Paragraph No. 3(7) of the counter affidavit, it is stated as

follows:-

Regarding the selection of candidates, the reservation policy of the Government is strictly followed and the candidates selected are placed against

the turns fixed for each reserved and non-reserved communal categories in the 200 point roster according to the communal eligibility and marks

secured by each of the candidate in the written examination an oral test of Tamil Nadu Public Service Commission.

Thus, there can be no controversy that in the selection process in question, the respondent commission has followed 200 point communal roster

while shortlisting the candidates for oral test.

Of course, clause 4(a)(i) of the Notification has not been challenged. But, in my considered opinion, in the present context, absence of

challenge to clause (4)(a)(i) of the Notification is of no consequence at all. The said rule only states that rule of reservation for appointment is

applicable to the recruitment and the distribution of vacancies will be as per the rules in force. Here, the term ""rules in force"" cannot be construed

to mean the rules as on the date of notification of the respondent commission i.e., 24.11.2010. It should be construed that it means the rules in

force in respect of the vacancies and not in respect of the date of notification. These vacancies were of the years 2006-07, 2007-08 and 2008-09

i.e., prior to 29.04.2009. When the amended rule clearly prescribes that 200 point communal roster shall be applicable only from 29.04.2009 in

respect of vacancies arising on and from 29.04.2009, it cannot be contended that the term ""rule in force"" as found in clause 4 of the Notification

shall refer to the date of notification. As per the said clause in the notification and as per the amended rule, to fill up these vacancies, the rule in

force in 2006-07, 2007-08 and 2008-09 i.e., the rules, which were in force prior to 29.04.2009, alone should be applied. If that is done, it is

illegal on the part of the respondent commission to have applied 200 point communal roster for the present selection process. In this regard, I may

refer to the judgment of the Hon''ble Supreme Court in Y.V. Rangaiah and Others Vs. J. Sreenivasa Rao and Others, wherein the Hon''ble

Supreme Court has held ""the vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended

rules. Similar view has been taken by the Hon''ble Supreme Court in Mohanan Pillai''s case, cited supra, wherein in Paragraph No. 11, the

Hon''ble Supreme Court has held as follows:-

It is now well-settled that ordinarily rules which were prevailing at the time, when the vacancies arose would be adhered to. The qualification

must be fixed at that time. The eligibility criteria as also the procedures as was prevailing on the date of vacancy should ordinarily be followed.

Here, the Hon''ble Supreme Court has made it very clear leaving no doubt that the crucial time is the time at which the vacancy arose and the

rule which was prevailing on the date when the vacancy arose alone shall be applicable. In view of the above settled position of law and in view of

the fact that the amended rule prescribing 200 point communal roster has come into force only from 29.04.2009, in the instant cases, the

shortlisting of the candidates based on 200 point communal roster for the purpose of oral test cannot be stated to be legal and, therefore, the same

is liable to be set aside. I hold that only 100 point communal roster should be applied that too, not for shortlisting the candidates for oral test, but,

only during final selection.

Now, turning to the controversy between Forestry and Non-Forestry graduates, as per the Notification, if only Forestry graduates are not

available, then, Non-Forestry graduates will be considered. This is in pursuance of the Government Order amending the relevant Service Rules.

Neither the said rule nor the notification has been challenged. Accepting the terms of the notification, the petitioners, who are Non-Forestry

graduates, have applied, sat for the written examination and participated in the physical test. Further the unamended rule had not created any

vested right for the petitioners. Therefore, it is not open for the petitioners, now, to contend that they should be treated on par with the Forestry

graduates. To comply with the terms of the notification, the respondent Commission ought to have segregated the Forestry graduates first,

conducted oral test and selected the qualified candidates based on the minimum marks prescribed in Clause 6(A) of the Notification. As against

the remaining vacancies, the respondent Commission ought to have selected the Non-Forestry graduates. It is the contention of the learned counsel

appearing for the petitioner in W.P. No. 23461 of 2012 that preference to Forestry graduates should not be given at the stage of shortlisting the

candidates for the purpose of oral test. In other words, according to the learned counsel, the candidates, irrespective of the subject, should have

been called for oral test based on the marks obtained in written examination and only after the oral test, during final selection, Forestry graduates

should be given preference. This argument, in my considered opinion, cannot be accepted for the simple reason, as I have already concluded, the

Non-Forestry graduates cannot claim parity with the Forestry graduates in view of the amended Service Rule, which states that only in the absence

of Forestry graduates, Non-Forestry graduates will be selected. Therefore, in my considered view, Forestry graduates should be segregated and

called first for physical test and the qualified candidates should be called to participate in the oral test. From and out of the Forestry graduates, who

are qualified in the physical test, on merit basis based on the marks obtained in the written examination and oral test and applying the rule of

reservation, the forestry candidates shall be selected. The remaining vacancies shall be filled up by conducting oral test separately for Non-Forestry

graduates. Thus, segregation of Forestry and Non-Forestry graduates, even for the purpose of oral test, cannot be found fault with. But, the

method of segregation done by the respondent Commission, as mentioned in the report, based on the 200 point communal roster cannot be

approved. As per the report of the respondent Commission, only 88 Forestry graduates were eligible for oral test. In my considered opinion, as

per the Service Rules, these 88 Forestry graduates should be given preference and they should be selected based on the marks secured in the

written examination as well as oral test. Then selection shall be made as against the remaining vacancies from Non-Forestry graduates by calling

them for oral test separately. As rightly pointed out by the respondent commission, the Non-Forestry graduates cannot claim parity with the

Forestry graduates so long as the rule as well as the notification stating that Non-Forestry graduates will be considered for selection if only

Forestry graduates are not available is not challenged and interfered with. As I have earlier pointed out, admittedly, the provisional list of

candidates admitted for oral test has not been done strictly by following the above steps. Therefore, the said provisional list of candidates published

for oral test cannot be approved by this Court.

Next, the learned counsel for the petitioner in W.P. No. 23461 of 2012 would submit that the reservation for Tamil Medium candidates and

women candidates has been wrongly treated as vertical reservation. The learned Senior Counsel, Mr. A.L. Somayaji, would contend that the law

laid down by the Hon''ble Supreme Court in Rajesh Kumar Daria''s case is not applicable, because, as per the Tamil Nadu State and Subordinate

Service Rules, the reservation for women has been made as a compartmentalized reservation, whereas Rajesh Kumar Daria''s case relates to non-

compartmentalized horizontal reservation. In my considered view also, as per rule 22(b) r/w Schedule III of the Tamil Nadu State and Subordinate

Services Rules, the reservation for women has been provided as horizontal reservation, but compartmentalized in respect of each reservation

category as well as general category. Even then, in my considered view, the law laid down in Rajesh Kumar Daria''s case is applicable to such

compartmentalized horizontal reservation. In this regard, I may refer to the judgment of the Hon''ble Supreme Court in Anil Kumar Gupta and

Others Vs. State of U.P. and Others, , wherein, the Hon''ble Supreme Court has held as follows:-

The proper and correct course is to first fill up the Open Competition quota (50%) on the basis of merit; then fill up each of the social reservation

quotas, i.e., S.C., S.T. and B.C; the third step would be to find out how many candidates belonging to special reservations have been selected on

the above basis. If the quota fixed for horizontal reservations is already satisfied-in case it is an overall horizontal reservation-no further question

arises. But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against

their respective social reservation categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of

compartmentalized horizontal reservation, then the process of verification and adjustment/ accommodation as stated above should be applied

separately to each of the vertical reservations. In such a case, the reservation of fifteen percent in favour of special categories, overall, may be

satisfied or may not be satisfied.)

[Emphasis supplied]

A close reading of the above judgment would make one to clearly understand that compartmentalized horizontal reservation should be applied

separately for each of the vertical reservations. This, in no way, supports the contention of the learned Senior Counsel for the TNPSC that in

respect of compartmentalized horizontal reservation, the law laid down in Rajesh Kumar Daria''s case is not applicable. As has been held by the

Hon''ble Supreme Court in a number of judgments, cited supra, and as has been held by this Court in K.R. Shanthi''s case cited supra, the

reservation for Tamil Medium candidates and for Women Candidates shall be treated only as horizontal reservation cutting across the vertical

reservation and the same shall never be treated as vertical reservation.

In W.P. No. 23073 of 2012, the petitioner claims that he is entitled for being considered under the quota reserved for freedom fighters and

similarly, the petitioner in W.P. No. 23074 of 2012 contends that he should have been considered as against the vacancies reserved for inter-caste

marriage category. These two contentions cannot be accepted, for the simple reason that the notification issued by the respondent commission

does not provide for any reservation for these two categories. The petitioners have not challenged the notification and instead, they have

participated in the selection process. When they do not find a place in the list of candidates short listed for oral test, they have rushed to this Court

with these pleas. Without challenging the notification, that too, after having participated in the selection process, it is too late for them to make the

above pleas. Hence, these please are liable to be rejected.

In some of the writ petitions, the candidates, who have studied in Tamil Medium, have made certain challenges in respect of their non inclusion

in the select list. But, in clause (4) (ii) of the Notification, it is stated as follows:-

4 (ii) In G.O.Ms. No. 145, Personnel and Administrative Reforms (S) Department, dated 30.09.2010, the Government have issued orders to fill

up 20% of all vacancies in direct recruitment on preferential basis to person studied in Tamil Medium. Clarification in this regard is awaited from

the Government hence, distribution of vacancies is not announced.

It is not brought to the notice of this Court that any clarification has been issued so far by the Government in respect of distribution of vacancies

as mentioned in the notification. When that be so, it is not known as to how the respondent commission proceeded ahead to short list the

candidates based on the reservation for Tamil Medium candidates without getting it clarified from the Government. On this ground also, the

provisional list is liable to be set aside. It is for the respondent commission to get clarification required at the earliest and then to proceed further.

In W.P. No. 27500 of 2012, the main contention of the petitioner is that he has got M.Sc., applied Life Biology, which, according to him, is

equivalent to a bachelor''s decree in Forestry. It is his contention that the said degree is to be treated as equivalent to bachelor''s degree in Forestry

and, therefore, he should have been treated on par with Forestry graduates. Whether the said degree is equivalent or not is a matter to be

considered by the Government. So far, no certificate has been issued considering the M.Sc., applied Life Biology as equivalent to bachelor''s

degree in Forestry. Therefore, it is for the TNPSC to refer the issue to the Government and thereafter, it is for the Government to declare whether

it is equivalent or not for the purpose of appointment. In view of the foregoing discussions, in the result, these Writ Petitions are disposed of in the

following terms:-

(i) The provisional lists of candidates admitted to oral test as published by the Tamil Nadu Public Service Commission are hereby quashed.

(ii) The Tamil Nadu Public Service Commission shall apply the rule of reservation only for the final selection and not for short-listing the candidates

for oral test.

(iii) The Tamil Nadu Public Service Commission is directed to apply 100 point communal roster for the selection process in question.

(iv) The Tamil Nadu Public Service Commission shall treat the special reservations for Women and Tamil Medium candidates as horizontal

reservations at the time of final selection.

(v) The Tamil Nadu Public Service Commission shall obtain clarification in respect of G.O.Ms. No. 145, Personnel and Administrative Reforms

(S) Department, dated 30.09.2010 in respect of Tamil Medium candidates for the purpose of distribution of vacancies for such candidates as

mentioned in the Notification itself.

(vi) The claim of the petitioner in W.P. No. 23074 of 2012 for consideration on preference on the ground of inter-caste marriage and the claim of

the petitioner in W.P. No. 23073 of 2012 for preference on the ground of ward of freedom fighter are rejected.

(vii) The Tamil Nadu Public Service Commission shall refer the question as to whether M.Sc., applied Life Biology [vide W.P. No. 27500 of

2012] is equivalent to Bachelor''s Degree in Forestry to the Government and the Government shall consider the same by referring the said issue to

the Equivalence Committee and issue appropriate certificate.

(viii) For the purpose of shortlisting the candidates for oral test and for final selection, Forestry graduates and equivalent graduates shall be

segregated and subjected to oral test and final selection. After having made such selection of Forestry graduates and equivalent graduates, the

remaining vacancies, if any, shall be filled up from and out of Non-Forestry graduates as indicated supra.

(ix) The selection and appointment to be made in this process shall be subject to the outcome of W.P.[MD] No. 9756 of 2006 pending before the

Madurai Bench of Madras High Court as indicated in the notification itself.

Consequently, connected Miscellaneous Petitions are closed. No Costs.