R. Anbu vs The Secretary, Tamil Nadu Public Service Commission and The Revenue Divisional Officer

V.S. Sirpurkar, J.—This order will dispose of the two writ petitions, they being W.P. Nos. 13918 of 1993 and 19080 of 1993 as the parties and the subject involved are common. Writ Petition No. 13918 of 1993 is for a writ of mandamus directing the second Respondent to issue a fresh community certificate to the Petitioner as belonging to Thozhuva Naicker community granting the status of Most Backward Class while W.P. No. 19080 of 1993 challenges the communication by the Tamil Nadu Public Service Commission dated 1.10.1993 informing her that her provisional selection to the post of District Project Nutrition Officer is cancelled and her application for the post is rejected The following factual matrix will clarify the whole situation.

The Petitioner claims to be belonging to Thozhuva Naicker community and she comes from the village called Appammasamudram of Attur Taluk, Salem District. She also had a certificate issued by the Tahisldar, Attur certifying that she belongs to Thozhuva Naicker community, which is recognized as Most Backward Class. An advertisement appeared for the post of District Project Nutrition Officer. There was only one post. Since the Petitioner had the necessary educational qualifications, she applied for the post in the prescribed form and also mentioning the status of Most Backward Class therein, though the post was an open post and had no relevance with the caste. Perhaps the Petitioner had claimed the status of Most Backward Class for the exemption from paying the fees of the Tamil Nadu Public Service Commission. Be that as it may, out of the 322 applications, 269 persons appeared for the written test, out of whom six persons were called for oral interview because they alone probably cleared the test or as the case may be, were the toppers. The Petitioner was one of them. She was interviewed on 13.07.1993 and was selected. However, at the time of interview itself she was asked to give a letter of undertaking to produce a fresh community certificate on or before 28.7.1993 i.e. within 15 days from the date of interview. She approached the second Respondent i.e. the Revenue Divisional Officer. However she was not given the said certificate though she had produced the school certificate of Petitioner''s father, in which the community was recorded as Thozhuva Naicker. It seems that on 20.7.1973 itself, a notice was affixed in the office of Tamil Nadu Public Service Commission that the result of the Petitioner was withheld as she had not been able to file a fresh community certificate. The Petitioner claims that her father also belongs to the said community of Thozhuva Naicker as also her brother and they are armed with the certificates to that effect, but she has been denied the said certificate by the second Respondent. She therefore came and filed the first writ petition claiming that certificate. In this writ petition, she claims the writ of mandamus for the grant of a certificate certifying her to be belonging to Thozhuva Naicker community. In addition she claims the status of Most Backward Class on the basis of that community, which is clear from her prayer in the writ petition.

Now we will have to go to the second writ petition and the facts thereof. When the fresh community certificate was insisted upon by the Tamil Nadu Public Service Commission, the Petitioner, after the unsuccessful effort to get the same also sought for the extension of time. She also went to the extent of filing a W.M.P. No. 21428 of 1993 for restraining the Respondents from filling up the post of District Project Nutrition Officer. By order therein she was allowed to give a written representation to the Revenue Divisional Officer, Attur. She also sent a representation to the Tamil Nadu Public Service Commission on 27.7.1993 seeking for extension of time to produce the certificate. She also issued a legal notice. It seems that by a communication dated 6.8.1993 the Tamil Nadu Public Service Commission extended the time by three weeks for production of the community certificates. However, she was not able to procure the said certificate even by the extended time and ultimately she received a communication dated 1.10.1993 bearing No. 9249/G5/90 wherein her provisional selection for the post was cancelled and her application for the post was rejected. The Petitioner therefore filed the second writ petition i.e. 19080 of 1993 and sought for qualifying the said cancellation order of her selection.

The main stay of the Petitioner''s arguments is, firstly she was entitled to the community certificate, certifying her to be belonging to Thozhuva Naicker community and consequently she was liable to be counted as belonging to Most Backward Class. The second argument of the Learned Counsel on her behalf is that even if she does not get the certificate or she was not able to procure the community certificate, it hardly ever mattered because this post was not a reserved post and was an open post. Therefore, the caste was irrelevant. The Learned Counsel fervently argues that the Tamil Nadu Public Service Commission could not have cancelled her provisional selection which resulted into her loss of the job which she was bound to get on the basis of her selection.

Both the petitions were opposed and it is the contention of the Government in the first writ petition, that the Government had issued instructions in their letter No. 18734/8C/92-4 dated 26.3.1993 that the persons who have produced the community certificates procured between 28.3.1989 to 16.5.1990 should be asked to obtain the fresh certificates. The Government points out that the Petitioner''s certificate is dated 29.7.1989 and it was because of that the Petitioner was asked to produce a fresh certificate. The Government has further contended in its counter that the Petitioner could not be considered as a Most Backward Class candidate and she was, at the most, entitled to be considered as a Backward Class candidate. It is contended by the Government further that a detailed enquiry was conducted by the Tahsildar, Attur and he had reported that the Petitioner''s forefathers who were residing at Thennankudipalayam, in fact belonged to Andhra Pradesh and they could not be said to be belonging to Thozhuva Naicker community. In short, it is the contention of the Government that the Petitioner was not able to prove that she belongs to Thozhuva Naicker community which was considered to be the Most Backward Class. It is the stand of the Government that those persons belonging to Thozhuva Naicker community residing at Attur and Thennaiucudipalayam would come under the Backward Class and not under the Most Backward Class and therefore the Petitioner was not granted any community certificate certifying her to be belonging to Thozhuva Naicker community (Most Backward Class).

As regards the other writ petition, the counter suggests that the Petitioner had claimed the status of Most Backward Class in her application and she was given enough time to produce a fresh community certificate. As she had availed of the concession and because she could not produce a fresh community certificate, her selection was rightly cancelled.

On the back drop of these conflicting stands, it has to be seen as to whether the writ petitions can be entertained and allowed and the reliefs claimed by the Petitioner can be granted. While arguing the first writ petition, the Learned Counsel very frankly submitted that afterwards the Petitioner got the certificate certifying her to be belonging to Thozhuva Naicker community (Backward Class) and therefore there would be no question of my going into the claim of the Petitioner that she belongs or belonged to the Most Backward Class. The Petitioner seems to be contented with the certificate she has got, which declares her to be belonging to Thozhuva Naicker community (Backward Class). Therefore, the writ petition No. 13918 of 1993 must fail and it is accordingly dismissed.

However, the matters do not stop here. The Learned Counsel points out that the Petitioner had competed for the post which was an open post and had absolutely no concern with her caste. The Learned Counsel argues that her selection to the post which is an open post could not have been simply cancelled on the basis of her inability to produce the community certificate, particularly because the caste aspect was totally alien to her selection. Learned Counsel earnestly points out that even if in the prescribed form the Petitioner had claimed the status of Most Backward Class, that was only by way of supplying the information to the Tamil Nadu Public Service Commission and nor selection had nothing to do with the same.

On the other hand, the learned Government Pleader very earnestly argued that at the most for a post of District Project Nutrition Officer, the caste may not be relevant, but on the status claimed of Most Backward Class, the Petitioner can claim some advantage in the matter of promotions and therefore the caste was relevant. The matter was adjourned again and again to check as to whether there were any rules permitting the Tamil Nadu Public Service Commission to cancel the provisional selection. The Government Pleader has now produced those Rules. Rule 24 of 1996 Rules of Procedure was heavily relied upon by the learned Government Pleader, though it has not been so mentioned in the counter. The said rule is reproduced hereunder:

Where a list of candidates approved for appointment to a service or post has been prepared in consultation with the Commission, the removal from such list of the name of any candidate who has not been placed on probation shall be made in consultation with the Commission. Where the candidates selected by the Commission fails to join duty or fails to produce the requisite documents including the certificates of physical fitness or where such candidate is found to be physically not fit on production of such certificate of physical fitness on where such candidate on production of the requisite documents is found to be not qualified for appointment to the post, the Commission shall, either suo motu or on the information of the department concerned, as the case may be, delete the name of such candidates from the approved list.

The Commission shall reserve the right to instruct the departments while forwarding the approved lists not to appoint any particular candidate, whose selection is provisional, subject to acceptance of his claims regarding his eligibility for selection.

It was on this basis that the Tamil Nadu Public Service Commission seems to have acted in canceling the provisional selection and rejecting the application for selection.

Seeing the language of the rule, in my opinion, it does not give any power to the Tamil Nadu Public Service Commission to cancel the selection much less for non-production of a caste certificate. Even if we closely follow the rule in its strictest possible terms, there is no scope to cancel the provisional selection particularly where the caste had no connection with the selection of the Petitioner. It has to be remembered that in this case, the Petitioner''s information that she belongs to the most Backward Class was merely incidental. Even if she had not been belonging to the Most Backward Class, she was bound to be considered for selection and it is an admitted position that she was selected at the top most position. Therefore, the cancellation on the basis that she has not justified her claim of belonging to the Thozhuva Naicker community (Most Backward Class) would be irrelevant in so far as her selection is concerned. If it was irrelevant in her selection, it would be equally irrelevant in the cancellation of her selection. The words appearing in the Rule to the effect.

Or where such candidates on production of requisite documents is found to be not qualified for appointment to the post, the Commission shall, either suo motu or on the information of the department concerned, as the case may be, delete the name of such candidates from the approved list." did not in this case apply because even if she had produced the certificate merely granting her the status of Backward Class and not the Most Backward Class, the Commission could not have cancelled the selection. The first part of the rule merely suggests that the removal of a candidate from the list of candidates approved for appointment would be made in consultation with the Commission and where the selected candidate has already joined and he procures a document which is found not sufficient enough for holding him as qualified for the post, his name could be deleted from the approved list by the Tamil Nadu Public Service Commission.

This is not a case where any of the eventualities as contemplated in Rule 24 has taken place. In the first placed, as has already been pointed out, the post was an open post and was not a reserved post. Therefore, the question of caste was completely irrelevant at least in so far as her appointment as District Project Nutrition Officer is concerned. The Learned Counsel tried to point out that the Petitioner had availed of the fees concession by claiming her to be belonging to the Most Backward Class. That could have been sorted out by recovering the fees from her. The cancellation of her selection was certainly not the answer particularly when her caste was completely irrelevant in the matter, being the post an open post.

It is strange that such a course should have been taken by the Tamil Nadu Public Service Commission in case of a girl who belongs to the Backward Class. There can be no dispute that she at least belongs to a Backward Class. The Commission should have taken a more human, wiser and reasonable attitude, which it failed to take. On the other hand, it went by the letter of the law, if at all there was any such law. Unfortunately, for the Respondents they have not been able to point out any rule which enables the Tamil Nadu Public Service Commission to cancel the selection for a reason which is completely irrelevant to the Selection. The action of the Tamil Nadu Public Service Commission has to be dubbed as arbitrary and has to be quashed. The impugned communication therefore is quashed, restoring the selection of the Petitioner. The question is now as to what relief can be given to the Petitioner. The Court would leave that question to the Tamil Nadu Public Service Commission and the State Government since the petition is restricted to the quashing of the impugned communication alone. Therefore, Writ Petition No. 19080 of 1993 succeeds. No costs. Consequently, connected W.M.P. No. 29720 of 1993 is closed.