The prayer in the writ petition is for a Writ of Certiorarified Mandamus to call for the records relating to the tentative provisional list of candidates selected for appointment of subject wise Tentative Provisional list of Candidates selected for Appointment to the post of Lecturers in Government Polytechnic College 2010-11 issued by the 2nd Respondent in his proceedings: Nil dated Nil in so far as selection of the 3rd Respondent is concerned and the consequential rejection order passed by the 2nd respondent in his proceedings: Nil dated Nil and quash the same as illegal and consequently direct the 2nd Respondent to consider her for appointment for the post of Lecturer (English) in the Government Polytechnic College Under Backward Class (Muslim) quota.
2. The case of the petitioner is that the 2nd respondent vide Advertisement No.2/12, dated 27.02.2012 issued a Notification/Advertisement inviting applications from the eligible candidates for appointment to the post of Lecturer in various disciplines for the Polytechnic Colleges for the year 2010-2012. Pursuant to the same, the petitioner had applied for the post of Lecturer in English. The petitioner had been permitted to appear for the written examinations on 13.05.2012. Thereafter, pursuant to the written examination, the successful candidates were listed out and based on the tentative list of candidates, the petitioner along with others were called for Certificate verification. The petitioner scored 141 marks out of
200. She belongs to Backward Class Muslim Category and the petitioner had obtained higher marks of 141 under the Backward Class Muslim Category. The petitioner also appeared for the Certificate verification. When the petitioner was waiting for an order of selection/appointment from the respondents, the petitioner's name was not found place in the selection list. However, in the impugned selection list issued by the 2nd respondent, all the 19 posts were filled up. Out of the 19 posts, one post, which was reserved for B.C. Muslim was filled up with a candidate called S.M.Syed Hussain, who scored 118 marks alone, whereas the petitioner scored 141 marks. When the petitioner enquired the non - selection of the petitioner, in spite of her higher marks and the person, who got lesser marks than the person selected for the BC Muslim, it was replied that the said Syed Hussain, who is the third respondent herein, had been selected under the category of blind and therefore, even though he got lesser marks than the petitioner, he was selected. Therefore, challenging the said selection made and non selection of the petitioner, the present writ petition has been filed challenging the impugned selection.
3. Heard the learned counsel for both sides.
4. The learned counsel for the petitioner would submit that out of the total 19 posts earmarked for Lecturers for the subject English, 5 were reserved for General category, 5 for Backward Community, one for Backward Class Muslim, four for Most Backward Class, 3 for Scheduled Caste and one for Scheduled Caste (Arunthathiyar). The relevant portion of the said reservation as well as the horizontal reservation of one post to the blind, also has been mentioned, as clause 3(d) of the Notification of the 2nd respondent, reads thus:
?3.(d) Communal reservation for GT, BC, BC Muslim, MBC/DNC, SC, SCA and ST will be as follows: 26.5% for Backward Class, 3.5 for backward class Muslim, 20% for Most Backward Class, 18% for Scheduled Caste (which includes the special reservation for Arunthathiars on preferential basis) and 1% for Scheduled Tribe Candidates.
The General Turn vacancies will be 31%. The reservation of vacancies for Women is 30%. Orthopaedically physically challenged (1%) and Blind (1%) will be followed as per Government orders in force. Reservation for Blind (1%) will be applicable in the case of Non Science Subjects only.
5. Since 1% horizontal reservation having been made for blind for a non Technical subject, such reservation shall be made only for the Lecturer in English subject. Therefore, at the maximum 1% can be reserved horizontally for blind candidate, out of the total 19. Here, in the impugned selection, since one candidate by name K.Muruganandham, who scored 148 marks has already been selected under blind category, the said horizontal reservation of one post for blind candidate has already been filled up, the question of extending further reservation for another blind candidate does not arise. Therefore, the selection made to the third respondent, where he secured only 118 marks under BC Muslim quota, in the name of blind candidate, is totally unlawful and in the said vacancy vertically reserved for BC Muslim, the petitioner, since obtained the higher marks of 141, should have been selected and therefore, the non selection of the petitioner is totally unlawful and therefore, the petitioner would be entitled to be considered for selection and appointment.
6. On hearing the petitioner, this Court had given the following direction by its order dated 13.02.2017:
?After hearing both sides, this Court is of the view that the 3rd respondent since has been selected under BC (Muslim) (Blind) category, in spite of the fact that already one candidate by name Muruganantham had been selected in BC (General) category, who is also a blind and the one percent reservation of the blind is admittedly horizontal reservation, the question of extending the horizontal reservation to second candidate ie., the third respondent does not arise.
2.In the circumstances, unless the third respondent herein is served and heard, it may not be advisable to decide his position. Therefore, the learned Additional Government Pleader is directed to get written instruction from respondents 1 and 2 as to whether any single vacancy is available for the subject English in Government Polytechnics for whom the said recruitment was in fact conducted. It is not necessary to ascertain the vacancy arises only out of the vacancies notified for the said recruitment, but any subsequent vacancy can also be taken into account and the aforesaid position shall be informed to this Court.
3.Compliance shall be made by the respondents on 22.02.2017. Post the matter on 22.02.2017 under the caption for orders.?
7. In response to the said directive issued by this Court, as stated supra, the learned Additional Government Pleader for the official respondents has filed an additional counter affidavit on behalf of the 2nd respondent. In the said counter affidavit, the following averments has been made, which are very crucial for deciding the issue raised in this writ petition. Paragraph Nos.5 to 10, which are relevant are as follows:
?5.It is submitted that the respondent Board issued Notification dated 27.02.2012 inviting applications for the written competitive examinations for Direct Recruitment to the post of Lecturers (Engineering/Non Engineering) in Government Polytechnic Colleges for the year 2012. The written test was conducted for filling up 19 posts of Lecturers in English. The petitioner wrote the Competitive Written Examination on 13.05.2012 for the post of Lecturer in English in Government Polytechnic Colleges. She scored 141 marks in the written examination and that she was called for Certificate verification in the BC (Muslim) Communal Turn on 22.07.2012 and the marks scored by her after Certificate verification is also 141. It is pertinent to submit that the candidates were called for Certificate verification in 1:2 ratio.
6.It is submitted that the Board issued notification for 'Estimate of Vacancies' for all Engineering Non Engineering subjects of which the vacancies for '12PT10' 'English' subject are as follows:
G W Total GT 3 2 5 BC 3 2 5 BC(M) 1
-
-
MBC 3 1 4 SC 2 1 3 SC(A)
-
Total 12 7 19
7.It is submitted that as per G.O.Ms.No.87, SW and NMS Department dated 17.07.2008 and subsequent amendments 3% reservation are earmarked for the differently abled (Out of 3% - 1% for orthopedically impaired and 2% for the visually impaired in respect of Arts subject). Accordingly, 2 posts are allotted for visually impaired category for the post of Lecturer English.
8.It is submitted that one candiate K.Muruganandam who secured 148 marks and belong to Physically Handicapped (Visually Impaired) category. Therefore, he was selected under Physically Handicapped (Visually Impaired) category in the vacancy earmarked for GT(G) turn.
9.It is submitted that the next candidate under Physically Handicapped (Visually Impaired) category is S.M.Syed Hussain secured 115 marks and he was awarded 3 marks for Higher Qualification. Since he belongs to BC(M) category he was selected under Physically Handicapped (Visually Impaired) category replacing the vacancy earmarked for BC(M) turn.
10.It is submitted that in the notification it is stated that 3% Special reservation for physically handicapped categories are made available following the rule of reservation. Accordingly, the candidates who secured highest marks in a particular physically Handicapped category would be included in the selection following Horizontal reservation and no communal tag is attached to that selection.?
8. By relying upon the said additional counter affidavit filed by the 2nd respondent, the Additional Government Pleader for the official respondents would submit that two posts were reserved, of course, horizontally for blind candidates and since the first post reserved for blind candiate has been given to one K.Muruganandham, who scored 148 marks and therefore, the 2nd post has to go only to the next available blind candidate. The next available blind candidate is the third respondent, who also happened to be the Backward Class Muslim candidate, horizontally, he has been fit in, in the one post reserved for BC Muslim, where he also satisfied the 2nd candidature horizontally reserved for blind. Therefore, even though the petitioner has scored 141 marks, which is higher than the marks secured by the third respondent (118), the petitioner was not selected in the said slot reserved for BC Muslim, wherein, the third respondent was selected. Of course, if the 2nd horizontal reservation is given to the third respondent, as ultimately found to be unjustifiable, but unless the appointment made to the third respondent is disturbed, the petitioner cannot be accommodated, assuming that the petitioner would be eligible to be considered in the quota of BC Muslim. Therefore, the learned Additional Government Pleader would submit that since there is no vacancy, as all the 19 posts were filled up, the question of accommodating the petitioner at this juncture does not arise.
9. This Court had considered the said rival submissions made by both sides.
10. As per Clause 3(d) of the Notification issued by the 2nd respondent, the 69% communal reservation would be applicable to all the 19 posts earmarked for English subject. Since the horizontal reservation of 1% for Blind, according to the notification, would be applicable in the case of non science subjects, only the said horizontal reservation can be made applicable only for the subject English, as that is the only subject can be categorised as non technical subject. Therefore, rightly, the 2nd respondent has extended the horizontal reservation of 1% for blind for the recruitment to the post of Lecturer in English. However, the blatent violation that has been made by the 2nd respondent is that even though the reservation of 1% was fixed for blind candidate, the maximum of reservation can be given for blind candidate, of course, horizontal is for one post. In respect of the said one post horizontally reserved for blind candidate, already, one K.Muruganandham, who secured 148 marks, had been selected and appointed. With the said selection of K.Muruganandham, that one post horizontally reserved for blind candidate, had been exhausted. Thereafter, extending the further reservation for the 2nd post or candidate for the very same horizontal reservation for the blind to the third respondent is absolutely unlawful and cannot be supported by any sound legal principle. This Court is at a loss to understand on what basis, two posts were reserved out of the 19, of course, horizontal for blind candidates, when the maximum horizontal reservation meant for visually impaired is 1%, which has been specifically mentioned at paragraph 3(d) of the Notification.
11. That apart, the prospectus issued by the 2nd respondent would also disclose the same factor that the physically challenged and visually impaired could be reserved for horizontal 1% respectively in non science subjects. The relevant portion of the prospectus issued by the 2nd respondent reads thus:
?05.Special Reservation: Reservation for the physically challenged will be followed as per the following G.Os.
a.G.O.Ms.No.99, P&AR (Per.S) Dept. dated 26.02.2008 b.G.O.Ms.No.87, SW and NMS Dept. dated 17.07.2008 c.G.O.Ms.No.53, SW and NMS Dept. dated 11.04.2005 d.G.O.Ms.No.619, Edn. (M2) Dept. dated 23.06.1993 e.G.O.Ms.No.159, P&AR Dept. dated 27.06.94 Physically challenged (1%) and visually impaired (1%) will be followed as per Government orders in force. Reservation for visually impaired (1%) will be applicable in the case of Non science subjects only.
12. As per the impugned selection list, the said K.Muruganandham, who scored 148 marks had been selected under Backward Class General Community quota and since he is a blind candidate, he has been fit in under 1% horizontal reservation of blind candidate. Once the said K.Muruganandham, who scored higher marks comparring with the third respondent, who scored only 118, in between these two blind candidates, the selection of the said Muruganandham already made under backward class general quota alone shall be considered as a fit in of blind candidate to satisfy the one percentage horizontal reservation meant for blind. Since the 1% horizontal reservation for blind has been exhausted, further extension of further reservation to another candidate in blind category is totally unjustifiable, unlawful and against the very notification as well as the prospectus issued by the 2nd respondent. The selection made to the third respondent as a second candidate under the category of blind, as has been clearly admitted by the 2nd respondent at Paragraph No.9 of the additional counter affidavit, as has been extracted above, would clearly expose the wrong selection made by the 2nd respondent insofar as the third respondent is concerned. The averments made at paragraph Nos.7,8, 9 and 10 of the additional counter affidavit of the 2nd respondent as extracted above, would clearly demonstrate that what has been done in the case of selection of the third respondent under BC Muslim quota coupled with horizontal reservation of blind candidate, is totally an unlawful activity and thereby defeating the lawful claim of the petitioner. If the third respondent has not been wrongly fit-in in the selection list under BC Muslim blind quota as a second candidate for which, there is no provision, since it is 1% reservation for blind candidate, certainly, the petitioner would have been selected, as admittedly, she has secured 141 marks, which is the highest marks obtained by any candidate belong to BC Muslim. Since one post is exclusively earmarked in vertical communal reservation for BC Muslim, in that post, the petitioner could have been selected, instead, the third respondent has been wrongly selected and has been fit in.
13. On seeing these averments made in the additional counter affidavit, this Court is of the view that in order to accommodate the third respondent, such a blatent violation of conditions of the notification as well as the prospectus, has been made by the 2nd respondent and in that case, not only the appointment of the third respondent has to be set aside, but also action to be initiated against the persons, who were responsible for such a violation.
14. Even though the third respondent has been arrayed as a party respondent in this writ petition and since notice also has been served, he has not chosen to appear before this Court. Merely because he become absent, his appointment cannot be justified and this Court can even set aside the said appointment made to the third respondent. In this regard, it is also pertinent to note that this Court by order dated 31.10.2012 in M.P.No.2 of 2012, has passed the following order:
?the appointment, if any, shall be made subject to the outcome of this writ petition.?
Therefore, the unlawful appointment made to the third respondent can very well be interfered with by this Court, since it become obvious that the selection made by the 2nd respondent in respect of the third respondent's candidature is totally unlawful and unjustifiable.
15. In the result,
(i) the 2nd respondent is directed to give selection to the petitioner, since admittedly, the petitioner has secured 141 marks, which is the highest marks in the category of BC Muslim for the said recruitment to the post of Lecturer in English for Polytechnic Colleges pursuant to the notification of the 2nd respondent dated 27.02.2012.
(ii) On such selection being made, orders to that effect shall be passed by the 2nd respondent within a period of two weeks from the date of receipt of a copy of this order.
(iii) The first respondent shall issue order of appointment to the petitioner within a period of two weeks thereafter.
(iv) In view of the findings, this Court has given against the third respondent, as his selection was totally unlawful, it is open to the official respondents either to cancel the selection and appointment made to the third respondent or they can take the decision otherwise. It is made clear that whether the third respondent's selection is cancelled by the official respondents or not, that will not preclude the official respondents from complying with the directions (1) and (2) referred to above, through which, the selection and appointment shall be made, within the time stipulated therein, to the petitioner.
With these directions, the writ petition is allowed. No costs. Consequently connected Miscellaneous Petitions are closed.