Smt. D. Thangam vs Tamil Nadu Public Service Commission

E. Padmanabhan, J.—The Petitioner prays for the issue of a writ of certiorarified mandamus to quash the order of the Respondent in

Notification No: 6770/BST-C2/99 dated 29.7.1999 after calling for the records and after perusing the same and direct the Respondents herein to

allot a post of Junior Assistant-cum-Typist to the Petitioner in the Tamil Nadu Ministerial Service.

This Court ordered notice on 23.9.1999 and the learned Government Advocate took notice on behalf of the Respondent. The matter was being

heard from time to time. A counter affidavit has also been filed on behalf of the Respondent. In fact the Respondent took time to move the State to

amend the rule, but it is yet to be amended. In this respect, the learned Additional Advocate General after getting instructions from the State

Government reported that the rule is being amended. However, the same need not further delay the passing of this order on merits of the case.

Heard Mr. N. Anandvenkatesh, Learned Counsel appearing for the writ Petitioner, Mr. T.R. Rajagopalan, learned Additional Advocate

General, Mr. A. Paramasivam, and Mr. S. Rajendran, learned Government Advocate, appearing for the Respondent.

The Petitioner a B. Sc, B. Ed., graduate applied for Group IV examination during the year 1996-97 for the post of Junior Assistant- cum-Typist

as she is qualified. The Petitioner claims that she belongs to ""Backward Class"". The Petitioner took part in the written examination held on

21.12.1997 and her Registration Number being 181802. The Petitioner claims that she had done well in the written examination.

The Petitioner further states that she had been intimated by the Respondent that she had secured 84 marks in General Tamil/General English and

68 marks in General Knowledge. The Petitioner was confident of getting selection as she had secured very good marks and possess sufficient

qualification. Apart from the Petitioner being a member of the backward class community, she being a woman has to be considered under the 30

per cent quota reserved for women. A selection list was published in the English Daily ""Indian Express"" on 11.1.1999 and the Petitioner''s name

did not find a place in the selection list while many women who have secured less marks than the Petitioner had been selected.

According to the Petitioner, selection has not been made in accordance with the notification dated 22.3.1999 and the Petitioner made a

representation to the Respondent. As there was no response, the Petitioner filed a Writ Petition No. 11450 of 1999 praying for a direction to

dispose of her representation dated 22.3.1999. This Court after service of notice by order dated 12.7.1999, directed the Respondent to consider

and pass orders on the representation within four weeks. The Respondents thereafter passed order on the representation dated 22.3.1999.

The Petitioner''s representation had been rejected. Hence the present writ petition.

According to the Petitioner, the order impugned is contrary to law, illegal, violative of Articles 14 and 16, besides violative of very Recruitment

notification published by the Respondent. It is contended by Mr. N. Anandvenkatesh, Learned Counsel for the Petitioner that the Respondent

should have noticed that out of the total 30 per cent vacancies reserved for women, there cannot be a further classification or preference if any for

destitute widows and if at all it could be within reasonable percentage and not the entire vacancy reserved for women.

It is contended that it is unconstitutional on the part of the Respondent to reserve all the 30% or fill up all the 30% posts reserved for women

only by the destitute widows and exclude all other women. Such a reservation is illegal, discriminatory, arbitrary and offend Articles 14 as well as

There cannot be a reservation within reservation and such a reservation within reservation will defeat the very object and purpose of 30%

reservation. The arbitrary selection of destitute widows alone belonging to different categories who have secured lesser marks than other women

candidates is arbitrary, unconstitutional and illegal.

It is pointed out that the Respondent had not only allocated all the 30% vacancy reserved for women but selected destitute widows exclusively

belonging to different categories and such a selection is affront to Articles 14 and 16 besides being arbitrary. The non-selection of the Petitioner

who had secured better marks than those selected is arbitrary and violative of Articles 14 and 16. Hence the present writ petition.

On behalf of the Respondents, a counter affidavit has been filed by the Secretary to the Service Commission. According to the Respondents,

the Respondent/Commission by Advertisement No. 22/96 invited applications from aspiring candidates for selection for appointment against 500

vacancies in the post of Junior Assistant-cum-Typist (non-security); Junior Assistant-cum-Typist (Security); Rural Welfare Officer Grade-II, in

Panchayat Unions; Cashier in Panchayat Unions; Revenue Inspector in Town Panchayat/Panchayat Township and Bill Collector-Grade-I in the

Town Panchayat/Panchayat Township in the Tamil Nadu Ministerial Service, included in Group IV Services Recruitment, 1996-97.

According to paragraph 4 of the recruitment notification the selection should be made following the Rule of reservation of appointments

applicable to Scheduled Castes; Scheduled Tribes, Most Backward Classes/Denotified Communities, Backward Classes, General Turn women

and Physically Handicapped persons for each departmental unit separately. According to the note under the said para 4 of the notification,

preference would be given to Destitute Widows within the 30% of vacancies set apart for women candidates who possess the prescribed

qualification.

According to the scheme of recruitment, a main written examination has to be conducted and the candidates who appear for the main written

examination have to secure 60 marks in the aggregate of two papers to quality themselves for selection, which would not mean that those persons

who secure the minimum qualifying marks viz., 60 marks in the aggregate would be selected automatically. Since recruitment is competitive in

nature, only the persons who secure higher marks and secure the top most positions in the ranking list and fall within the zone of selection against

the notified vacancies would be selected.

The Petitioner applied to the Commission and her registered Number being 181802. The Petitioner was initially admitted provisionally to the

preliminary examination which was meant for short listing the candidates for admission to the main written examination conducted on 2.3.1997.

The Petitioner who had appeared for the main written examination secured 152 marks both in General Tamil Paper and in the General English

Paper taken together (General Tamil 84 and General English 68).

According to Rule 21(b) of the General Rules for the State and Subordinate Services, a minimum of 30% of all vacancies which are to be filled

up through the direct recruitment shall be set apart for women candidates irrespective of the fact whether the rule of reservation of appointments

applies to the posts or not. In respect of the posts to which the rule of reservation of appointments applies, 30% of vacancies shall be set-apart for

women following the existing reservation of Scheduled Caste, Scheduled Tribe, Most Backward Class/Denotified Community, Backward Class

and General Turn and Women candidates shall also be entitled to compete for the remaining 70% of vacancies along with male candidates.

In respect of the recruitment in question 495 candidates were selected as against 500 vacancies notified and the remaining 5 vacancies are yet

to be filled up for want of Scheduled Tribe candidates and the said vacancy has been carried forward to the next recruitment. Of the 500

vacancies 132 are to be filled up by women candidates.

Rule 56 of the General Rules for the Tamil Nadu State and Subordinate Service as amended on 30th May, 1995 reads thus:

Employment concession for Destitute Widows Notwithstanding any thing contained in these rules, or in the Special Rules for the various

Subordinate Services but subject to Rule 22 of these rules, preference shall be given to the Destitute Widows within the minimum of 30%

vacancies set apart in Rule 21(b) of these rules to women candidates, who possesses the qualifications prescribed for appointment to any posts in

pay scales, the minimum of which does not exceed Rs. 4,000/- under the State Government by direct recruitment.

In respect of the recruitment of 132 vacancies reserved for women candidates were to be filled up by Destitute Widows in accordance with

the above rule as 211 candidates claimed to be destitute widows and obtained the requisite qualifying marks viz., 60 marks in aggregate of the two

papers, all the vacancies reserved for women candidates were filled up by destitute widows since the destitute widows were to be selected as

against the 30% vacancies reserved for women in preference to the other women candidates. It is essential to set out the very plea put forward by

the Respondent in its counter affidavit in this respect. Para 6 of the Counter affidavit reads thus:

In respect of this recruitment although only 132 women vacancies which could be filled up by Destitute Widows in accordance with the above

rule alone were available, 211 candidates who claimed to be Destitute Widows and obtained the requisite qualifying marks viz., 60 marks in the

aggregate of two papers (i.e.) General Tamil of General English and General Knowledge as prescribed in para 7 of the notification were available

in the ranking list. Since the Destitute Widows were to be selected in the 30% vacancies reserved for women in preference over the other women

candidates, all the vacancies reserved for women candidates were filled up by Destitute Widows. Due to the consideration of the Destitute

Widows in all the 132 vacancies earmarked for women, the Petitioner did not reach her turn for selection in any of the said vacancies. Further, the

Petitioner who was also entitled for consideration against the 70% vacancies along with the male candidates in the Backward Class category, the

category to which she belongs and in the General Turn vacancies on the basis of merit, did not also reach her turn for selection in those vacancies

on the basis of the marks obtained by her in the Main Written Examination. The cut off marks for Backward Class (General) and General Turn

(General) were 155 and 160 respectively. Hence, she was declared not selected and the marks obtained by her in the Main Written Examination

were communicated to her. The details of the cut off marks for various class components in respect of this recruitment are furnished in the

Annexure appended to the counter.

The Petitioner''s representation did not contain any valid points and hence no reply was sent. The Petitioner filed W.P. No. 11450 of 1999 on

the file of this Court and this Court passed the following order on 12.7.1999:

Without going into merits of the Petitioner''s claim or other contentions, the Respondent is directed to dispose of the re-presentation on merits

and according to law within four weeks from today communicate the order to the writ Petitioner.

The writ petition is ordered accordingly.

Pursuant to the said directions, the Petitioner''s representation dated 22.3.1999 and 24.7.1999 were disposed of and a reply was sent to the

Petitioner on 29.7.1999. Challenging the same the present writ petition has been filed.

According to the Respondents in terms of Rule 21(b) of the Tamil Nadu State and Subordinate Services Rules in respect of the post to which

the rule of reservation of appointments applies, 30% of the vacancies shall be set apart for women following the existing reservation of Scheduled

Caste, Scheduled Tribe, Most Backward Class/Denotified Community, Backward Class and General Turn. Since in respect of Group IV Services

recruitment, the total number of vacancies announced was arrived at based on the vacancies available in various departmental units and the

selection has to be made following the rule of reservation of appointments with reference to the vacancies available in each and every departmental

units, out of the 500 vacancies announced, 132 vacancies had to be reserved for women in accordance with Rule 21(b).

According to Rule 56 of the General rules, preference shall be given to the destitute widows within the minimum of 30% vacancies set apart in

Rule 21(b) of the General Rules to women candidates. In accordance with the Rule 56, the entire 30% of the vacancies namely 132 vacancies was

to be filled up by recruiting destitute widows. According to Rule 56 preference has to be given to the destitute widows. The destitute widows were

considered for selection as against the 132 vacancies in preference to other women candidates who secured higher marks than the destitute

widows.

The contention that reservation within reservation has been adopted by the Respondents by making reservation to the destitute widows within

the Backward Class women reservation is not correct. According to the rules destitute widows have to be considered for selection as against the

30% vacancies reserved for women in each class components in preference over other women candidates. Only in accordance with the same,

destitute widows were considered for selection in the 30% women vacancies reserved in each class components, in preference over the other

women candidates who had secured even higher marks than the destitute widows.

The selection has been made only in accordance with the Rule as per the provisions made in the Commission''s notification. As many as 211

Candidates who claimed themselves to be destitute widows were available in the ranking list for consideration against the 132 vacancies reserved

for women, all the Destitute Widows had to be considered in those vacancies in accordance with the provisions contained in Rule 56 of the

General Rules for the Tamil Nadu State and Subordinate Services and destitute widows have been only selected as against 132 vacancies.

The women candidates who had secured higher marks than the destitute widows were to be considered against the remaining 70% vacancies

meant for general turn category along with the male candidates in accordance with the Rule 21(b) of the General Rules for the Tamil Nadu State

and Subordinate Services. The entire selection is in accordance with Rules and on merits. It is submitted that no case has been made out for

judicial review of the selection. It is also contended that the selection procedure adopted by the Commission was strictly in accordance with the

provisions contained in the Rules and without any deviation. The Petitioner is not entitled to be selected. All the contentions put forwarded by the

Petitioner are devoid of merits.

It is also essential to set out the Annexure which would disclose the cut off marks of the candidates selected with their respective qualification

and other material details.*

ANNEXURE

GROUP-IV-

SERVICES -

1996-97

CUT OFF

MARKS

General (1)

Marks Date of BirthQualification

General Turn 160 07.05.72 U.G

Scheduled Castes 145 25.11.67 U.G

Scheduled Tribes All

Candidates

Backward Classes 155 13.01.65 P.G

Most Backward Classes/ 151 10.02.71 B.Sc,

Denotified Communities

General Turn-women-PH-Deaf -- . �-

Backward Classes-Women-PH- -- .... ....

Ortho

Most Backward 134 09.04.80 S.S.L.C

Classes/Denotified Communities-

General-PH-Deaf

Most Backward -- ... ....

Classes/Denotified communities-

General-PH-Deaf

Marks Women (2) Qualification

Date of Birth

General Turn -- ... ...

Scheduled Castes - ... ...

Scheduled Tribes � � __

Backward Classes -- ... ...

Most Backward Classes/

Denotified Communities

General Turn-women-PH-Deaf -- � �

Backward Classes-Women-PH- 138 29.04.75 U.G

Ortho

Most Backward __ ... ...

Classes/Denotified Communities-

General-PH-Deaf

Most Backward 142 16.12.75 M.S.C

Classes/Denotified communities-

General-PH-Deaf

3 Destitute

Women

Marks Date of BirthQualification

General Turn 121 03.03.60 U.G

Scheduled Castes All

candidates

Scheduled Tribes -- � �

Backward Classes 107 28.7.66 H.S.C

Most Backward Classes/ 87 07.05.74 S.S.L.C

Denotified Communities.

General Turn-women-PH-Deaf 120 22.04.77 S.S.L.C

Backward Classes-Women-PH- 75 22.04.77 S.S.L.C

Ortho

Most Backward -- ... ...

Classes/Denotified Communities-

General-PH-Deaf

Most Backward

Classes/Denotified communities- -- ... ...

General-PH-Deaf

Heard Mr. R. Anandvenkatesh, Learned Counsel appearing for the writ Petitioner and Mr. T.R. Rajagopalan, Additional Advocate General,

appearing for the Respondents.

It is admitted that the Petitioner had secured 152 marks in the aggregate in the two papers and she belongs to a Backward Class. In the

general category a member of the Backward class, who had secured 155 marks had been selected, while in respect of 30% vacancies reserved

for women candidates, women candidates who have secured even 121 marks have been selected as against vacancy reserved for general turn.

Women candidates who have secured 107 marks were selected as against vacancies reserved for Backward Classes, those who have secured 87

marks had been selected as against Most Backward Classes, those who have secured 120 marks have been selected against general turn-women-

physically Handicapped-Deaf Backward Classes-Women-Physically Handicapped-Ortho and women candidates of Most Backward

Classes/Denotified Communities-General-Physically Handicapped-Deaf/Blind have been selected with 75 marks. Hence it is clear that all the

women candidates who have been selected as against the 30% vacancy reserved for women have secured far less marks than the Petitioner herein

both in the General Turn as well as the vacancy reserved for Backward Classes of Physically Handicapped or Backward Class-Women-

Physically Handicapped-Ortho as well as General Tum-Women-Physically Handicapped-Deaf.

The entire 30% of the vacancy viz., 132 vacancies have been filled up by recruiting persons who have secured marks far less than the

Petitioner and the only reason assigned by the Respondent is that all the 30% vacancies have been filled up by recruiting destitute widows. In other

words, the entire 30% vacancies namely 132 out of 500 vacancies have been filled up by recruiting destitute widows as they have secured the

requisite qualifying 60 marks in aggregate of two papers.

There is no quarrel that the destitute widows who have been selected have secured the qualifying marks in the written examination viz., 60

marks and above in aggregate of the two papers. But none of the candidates who have been selected have secured marks higher than the

Petitioner herein who is also entitled to be considered as against the 30% vacancy reserved for women. The selection notification published by the

Respondent demonstrates that all the as against 30% vacancy reserved for women, the candidates selected namely destitute widows, have secured

less marks than the Petitioner in the written examination. It is admitted that the Petitioner, a women candidate is also entitled and could very well be

considered as against 30% vacancy.

During the hearing, the Learned Counsel for the Petitioner not only challenged the non- selection of the Petitioner as arbitrary and violative of

Articles 14 and 16, but also advanced arguments challenging the rule namely Rule 56 of the Tamil Nadu State and Subordinate Services General

Rules. It is also further contended that Rule 56 had been misunderstood or misinterpreted by the Respondent and this vitiates the entire selection as

well as the non-selection of the Petitioner.

According to the Learned Counsel, Rule 56 enables the Respondent to give preference to the destitute widows within the minimum of 30%

vacancy set apart in Rule 21(b) who possess the qualification prescribed in the appointment to any post in any pay scales, the minimum of which

does not exceed Rs. 4.000/- set apart for direct recruitment. According to the Learned Counsel for the Petitioner, preference provided for in Rule

56 would mean that if all other things are equal, a preference could be shown to the destitute widows and merely because the destitute widows

have secured the minimum eligibility mark, all the 30 per cent vacancies set apart for women candidates in Rule 21(b) of the Rules cannot be filled

up by recruiting destitute widows alone.

It is contended that if such an interpretation is given, it would defeat the constitutional guarantees provided in Article 16, besides it is violative

of Article 14. It is also contended that if such an interpretation. is to be extended, it would amount to reservation in reservation which is

impermissible. There is merit in this contention.

The learned Additional Advocate General after placing the fact fairly stated that the scope and purport of Rule 56 is not what the Respondent

had done in the selection in question and that the State Government has already decided'' to amend Rule 56 suitably, in other words, the

interpretation placed on by the Respondent on Rule 56, it is fairly admitted cannot be sustained at all. It is also brought to the notice of the court

that the State Government has already decided to amend the Rule suitably and had also taken a decision in this respect. However, till date, the

amendment has not been placed, even after several adjournments. Be that so, and even assuming that the State Government has decided to amend

the Rule 56, the same could be prospective only and therefore this Court has to necessarily decide the contention raised by the counsel for the

Petitioner, with respect to the selection and it may not be necessary to go into the validity or ultra virus of the Rule namely Rule 56 of the Rules.

It is also admitted by the Respondents that all the 132 vacancies set apart towards 30% of the vacancies reserved for women had been filled

up only by destitute widows even though they have secured lesser marks than other women candidates who are also entitled to the benefit of

reservation either as Backward Class or Most Backward Class or Scheduled Caste or Scheduled Tribe, as the case may be. It is admitted that a

member of Scheduled Caste or Scheduled Tribe or Backward Class or Most Backward Class though had secured lesser marks than those who

belong to the same set of socially or educationally backward classes have not been selected, but those who have secured far less marks have been

preferred only on the sole ground that all the 132 selected candidates are destitute widows. In the light of the said admission, we have to decide

the validity of non-selection of the Petitioner and if the contention of the Petitioner is sustained, this Court has to issue consequential directions not

only to the Respondent, but also to the State Government to render substantial justice.

Article 16(1) provides that there shall be equality or opportunity for all in matters relating to employment or appointment in any office under the

State. Clause (4) of Article 16 provides that nothing in Article 16 shall prevent the State from making any provision in the reservation of

appointments or post in favour of any backward class or citizens which, in the opinion of the State is not adequately represented in the service

under the State. Clause (1) and (2) of Article 16 guarantees equality of opportunity to all the citizens in the matter of appointment to any office or

to any other employment under the State. Clauses (3) to (5) lay down several exceptions to the above rule of equal opportunity. Clause (4)

permits reservation for backward classes of citizens who are not adequately represented in the services of the State. Like, Article 14, Article 16(4)

permits a reasonable classification.

It is true that equality of opportunity guaranteed by Article 16(1) need not be absolute equality. The said Article does not prohibit the

prescription of reasonable Rules for selection to any employment or appointment to any Office including such pre-requisite conditions for

appointment as would be conducive to efficiency or proper discipline among the Government services. Equality of opportunity in the matter of

appointment can be predicated only as between persons who are claiming the same employment. It is also equally well-settled that Courts will not

interfere where a percentage of reservation is reasonable having regard to the employment opportunities of the general public to the cadre of

service in question. Article 16(4) is an enabling provision and it confers a discretionary power on the State to make a reservation of appointments

in favour of backward Classes of citizens.

Article 16 is only the incidence of the general concept of equality enshrined under Article 14 in the matter of appointments and a reasonable

classification is permissible under Article 16. The equality guaranteed by Article 16(1) is only an equality between the member of the same class of

employees. Articles 14 and 16 are supplementary to each other and therefore they have to be read together. In the present case, all the 30% of the

posts set apart for the women have been practically filled up by selecting destitute women and such a selection offends Articles 14 and 16.

It may be that in all, hundreds of destitute widows might have submitted their application. But, no reservation has been made in favour of the

destitute widows. What Rule 56 of the State and Subordinate Services General Rules prescribes is a preference to be given to the destitute

widows within the minimum of 30% vacancy set apart in Rule 21(b) of the Rules to women candidates who possess the qualification prescribed for

appointments to any post. In other words, in terms of Rule 22, 30% of the vacancies have been set apart for women candidates according to Rule

21(b) of the General Rules in the State and Subordinate Services, a minimum of 30% of vacancies are to be filled up through direct recruitment

and they shall be set apart for women candidates. The Rule further provides that the 30% of vacancy shall be set apart for women following the

existing reservation of Scheduled Caste, Scheduled Tribe, Backward Class, Most Backward Class, Denotified Community and general turn. At

the same time, women candidates shall also be entitled to compete for the remaining 70% of the vacancies along with male candidates.

A conjoint reading of Rule 21(b) and Rule 22 as well as Rule 56 of the State and Subordinate Services General Rule, and the constitutional

guarantee enshrined in Articles 14 and 16, in the considered view of this Court would enable the Respondent to give preference to destitute

widows provided in other respects they are equal, to every woman applicant either she be a scheduled caste or a scheduled tribe or a Backward

Class or a Most Backward Class. In other words all the 30% of the seats set apart for women cannot be filled up recruiting only destitute widows

when they have scored lesser marks than other women candidates irrespective of the fact whether she belong to Scheduled Caste or Scheduled

Tribe or Backward Class or Most Backward Class, as the case may be. The impugned selection as admitted by the Respondent is demonstrably

violative of Articles 14 and 16. It is not as if it is a reasonable reservation by all standards.

The preference to destitute widows is not a rule of reservation falling within the meaning of Article 16(4), but it is a rule of preference which

would enable the Respondent to prefer one of the candidate to the other who come under the same category or who fall under same reservation or

rotation as the case may be and when other things being equally good, the rule contemplates a preference being given in favour of a destitute

widow. Co-incitingly, the candidates selected under the 30% quota set apart for women have secured less marks than the Petitioner. It is also

admitted that the women candidates who belong to backward classes as that of the Petitioner and who have secured lesser marks than the

Petitioner had been selected merely because the particular individual candidate is a destitute widow and consequently, the non-selection of the

Petitioner is arbitrary and offends Articles 14 and 16 of the Constitution.

The Rule 56 has to be read down and as already pointed out, a conjoint reading of the said three rules would show that there cannot be a

reservation in reservation. Further, Rule 56 does not prescribe a reservation, but it only provides for a preference when other things being equal. If

the two women candidates who belong to backward classes secure the same marks in the selection, there could be a preference in favour of a

destitute widow as against the other women who is equal in all other respects. Demonstrably as well as admittedly, the Respondents have selected

candidates who belong to backward classes and who have secured far less marks than the Petitioner and consequently this Court has to hold that

the non-selection of the Petitioner is arbitrary and illegal and violative of Articles 14 and 16.

The construction placed by the Respondent as well as the State Government in this respect to give preference to the destitute widows merely

because they have secured the minimum marks cannot be sustained at all and if such a construction is to be sustained, it would definitely violates

Articles 14 and 16 of The Constitution.

In the circumstances, to render substantial justice, the Respondent is directed to select the Petitioner to the post she had applied for and a

direction is also issued to the State Government in this respect to create as upper numeracy post and accommodate the Petitioner. Instead of

setting aside the entire selection, such a direction is issued to render substantial justice. Though the State Government is not a party to the writ

petition, the learned Additional Advocate General had submitted the stand taken by the State Government during the hearing and their

representations were also heard.

In the circumstances, the Government of Tamil Nadu is also directed to appoint the Petitioner on her name being included in the selected list of

candidates by the Respondent-Service Commission and such a selection and appointment shall date back to the date on which the last of the

service commission candidate has been selected and appointed for all purposes, excepting for monetary benefits. In other words, it is made clear

that the Respondent herein shall select the Petitioner and include her name in the list of candidates selected for the post she had applied for and the

Chief Secretary to the Government of Tamil Nadu is directed to appoint the Petitioner to the post, she had applied for within Twelve weeks from

the date of communication of this order. The Petitioner shall be deemed to have been selected and appointed with effect from the date on which

last of the Backward Class candidate has been appointed, but without monetary benefits and for all the other purposes the Petitioner would be

entitled to monetary benefits from the date on which she actually joins the post.

This Writ Petition is allowed in the above terms, but without costs.