http://www.thehindu.com/multimedia/archive/02136/Jayalalitha_Assets_2136932a.pdf
Saturday, October 4, 2014
Jeyalalitha's criminal case verdict
http://www.thehindu.com/multimedia/archive/02136/Jayalalitha_Assets_2136932a.pdf
Friday, August 15, 2014
Online Encumbrance Certificate : Tamil Nadu
Tamil Nadu Government's recently launched 'online EC/Document search' for properties registered at T.Nadu is an appreciable progress in E-Governance. In its' own words, the web-page for EC at www.tnreginet.net describes it as 'In order to ensure ease and transparency in services to the Public and also to facilitate the property owners to check the status of their property from anywhere in the world'. Truly, the ease of operation is very helpful to trace the land records/history. At times, the Manual (hand-written encumbrance certificate) contains several errors (intentional/un-intentional!). Online downloadable Encumbrance Certificate are handy in scrutinising the property documents for their authenticity. To quote an example, recently certain documents were given to me for Legal Opinion, in which there were certain documents pertaining to Mortgage of property. Since Mortgage Receipts were not in the documents' bundle, I went through the online EC and confirmed that the Mortgage-Receipts were duly registered. By quoting the documents numbers, the seller easily obtained the said receipts. Due to online EC availability, the process-flow of rendering legal opinion was hassle-free!
This service by the Govt is of immense help to the public as it will reduce considerable expenses (and running behind registrar office brokers) on the part of property purchasers as well as legal professionals.
Suggestion : As the registered documents are scanned by the registrar office concerned, if the documents are also available for download, it will bring more transparency and also reduce work-load. Further, precious energy on account of paper-consumption, photostat, etc., can also be saved. Though it may cause loss of business to several involved in the documentation and allied activities :)
This service by the Govt is of immense help to the public as it will reduce considerable expenses (and running behind registrar office brokers) on the part of property purchasers as well as legal professionals.
Suggestion : As the registered documents are scanned by the registrar office concerned, if the documents are also available for download, it will bring more transparency and also reduce work-load. Further, precious energy on account of paper-consumption, photostat, etc., can also be saved. Though it may cause loss of business to several involved in the documentation and allied activities :)
Monday, July 28, 2014
Eviction from service married accommodation allotted to underage (ie., below 25 years) PBOR challenged at AFT Kochi
Eviction from service married accommodation allotted to underage (ie., below 25 years) PBOR challenged at AFT Kochi
Leave a reply
ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI
O.A.NO. 226 OF 2013
FRIDAY, THE 24TH DAY OF JANUARY, 2014/4TH MAGHA, 1935CORAM:
HON’BLE MR. JUSTICE SHRIKANT TRIPATHI, MEMBER (J)
HON’BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A)
APPLICANT:-
CORPORAL RAVI KUMAR,
AGED 24 YEARS 11 MONTHS AND 13 DAYS,
S/O.DINANATH SINGH,
TRADE: ACCOUNTS ASSISTANT NO. 920220S,
COMMAND ACCOUNTS SECTION,
HQ TC, IAF, BANGALORE
RESIDING AT:
T.M.Q NO.P-51/8, AF CAMPUS,
HEBBAL, J.C.NAGAR POST,
BANGALORE – 560 006.
BY ADV. SRI.V.K.SATHYANATHAN.
versus
RESPONDENTS:-
1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY,
MINISTRY OF DEFENCE, SOUTH BLOCK,
NEW DELHI – 110 011.
2. THE CHIEF OF THE AIR STAFF,
AIR HEADQUARTERS (VAYU BHAWAN)
RAFI MARG, NEW DELHI-110 011.
3. THE AIR OFFICER COMMANDING-IN-CHIEF,
HQ TC, IAF, J.C.NAGAR POST,
BANGALORE – 560 006.
4. THE SENIOR OFFICER ADMINISTRATION,
HQ TC, IAF, J.C.NAGAR POST,
BANGALORE – 560 006.
5. THE COMMANDING OFFICER
HQ TC, IAF(U), J.C.NAGAR POST,
BANGALORE – 560 006.
BY ADV.SRI.P.J.PHILIP, CENTRAL GOVT COUNSEL
O R D E R
1. Heard Mr.V.K.Sathyanathan for the applicant and
Mr.P.J.Philip for the respondents and perused the record.
2. By the instant Original Application filed under
Section 14 of the Armed Forces Tribunal Act, the applicant
Corporal Ravikumar, No.920220S has prayed for a direction
to the respondents to allow him to continue in occupation of
the residence TMQ.No.P-51/8, AF Campus, Hebbal,
J.C.Nagar Post, Bangalore till he is allotted with a Permanent
Service Married Accommodation as per his seniority on the
roll of the respondents. He has further prayed for quashment
of orders Annexures A2, A6, A7, A9 and A10.
3. The relevant facts are that the applicant was
allotted the aforesaid accommodation and in pursuance of
the allotment he occupied the same. Someone else made a
complaint in writing that the allotment made in favour of the
applicant was bad in view of the fact that he was not entitled
to Married Accommodation as he was below 25 years of
age. In this connection the learned counsel for the
respondents submitted that the accommodation allotted to
the applicant could be allotted to a person who had
completed 25 years of age and was married and whose turn
had come for the allotment. In view of the fact that the
applicant was not entitled to be allotted the aforesaid
accommodation but was wrongly allotted, so it was decided
to cancel the accommodation. Accordingly, after serving
him a show cause notice, the order dated 5th December
2013 (Annexure A10/2) was passed by the Estate Officer
under Section 5 of the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971, hereinafter referred to
as the Act, and in pursuance of that order the applicant was
required to vacate the accommodation. It is also significant to state
that the applicant vacated the accommodation on 27th
December 2013 in pursuance of the aforesaid order,
therefore, he is not in possession of the accommodation.
4. So far as the relief No.2 is concerned, it has become
infructuous due to the simple reason that the applicant is no
more in possession of the accommodation and as such a
direction to restrain the respondents not to evict him from
the accommodation can not be issued. The applicant has
not set up any prayer for restoration of the possession.
5. So far as the legality of the order passed under
Section 5 of the Act is concerned, the same is an appealable
order and the appeal lies to the District Judge. So, the
applicant cannot be said to be justified in challenging the
order of the Estate Officer before the Tribunal.
6. Mr.V.K.Sathyanathan appearing for the applicant
submitted that the jurisdiction of the Civil Courts has been
excluded by virtue of Section 33 of the Act, so the order
passed by the Estate Officer under section 5 of the Act wasappealable before the Tribunal. A similar question had
arisen before the Apex Court in the matter of Union of
India vs. Rasila Ram and Others, (2001) 10 SCC 623
pertaining to the jurisdiction of the Central Administrative
Tribunal to entertain a petition against the order of the
prescribed authority passed under Section 5 of the Act. The
Apex Court held that the jurisdiction of the appellate
authority was not excluded in any way by the Administrative
Tribunal Act, 1985, so, the Apex Court held that the Central
Administrative Tribunal had no jurisdiction to entertain a
petition against the order passed under Section 5 of the Act.
Mr.V.K.Sathyanathan, however, tried to contend that the
provisions of the Administrative Tribunals Act, 1985 were not
in pari materia with the provisions of the Armed Forces
Tribunal Act.
We do not find any justification to accept this
submission. So far as the question of service matter or
exclusion of the jurisdiction of Civil Court is concerned, both
the enactments are in pari materia, therefore, the verdict of
the Apex Court is quite applicable to the facts of the instant
case. In our view, the applicant should have challenged the
legality of the order passed under Section 5 of the Act
before the appellate authority, instead of approaching this
Tribunal.
7. Mr.V.K.Sathyanathan next contended that the
Commanding Officer had power to allot an accommodation to
a married person below 25 years of age at his discretion and
the applicant’s allotment was made by the Commanding
Officer at his discretion, therefore, the allotment could not be
cancelled. In order to verify this factual aspect of the
matter, we called for the original records which we perused
today. We find that the proposal for allotment in favour of
the applicant was never sent to the Commanding Officer for
allotting the disputed quarter in favour of the applicant. The
allotment was made by some other officer who did not dare
even to inform to the Commanding Officer. Therefore, it
cannot be assumed that the allotment was made either by
the Commanding Officer himself or under his approval.
8. The Rules are very clear. No Married Occupation
can be allotted to a married person who is below 25 years of
age. But in exceptional cases, the Commanding Officer has
power to waive the rule. But in this case no such power was
exercised. The allotment made in favour of the applicant
who was below 25 years of age as married person, was
quite illegal. More so, the respondents instead of adopting
any coercive process against the applicant, decided to
initiate a proceeding against him under the Act and
proceeded accordingly in accordance with law and obtained
the order for the ejectment of the applicant under Section 5
of the Act. So the respondents adopted available legal
recourse for obtaining the said order. In view of the fact
that we do not possess jurisdiction to examine the legality
of the order passed under Section 5 of the Act and appeal
lies against that order, we do not propose to examine the
correctness and legality of the proceedings done under the
Act. It is for the appellate authority under the Act to
consider the question and pass appropriate order, if any
appeal is filed by the applicant. But we would like to observe
that the observations whatsoever we have made in this
order will not cause any prejudice to his rights to press the
appeal.
9. The learned counsel for the applicant lastly
contended that the applicant has already completed 25
years of age on 15th of January, 2014, therefore, he has now
become eligible to seek allotment of a Married
Accommodation, therefore, a direction may be issued to the
respondents to allot him a suitable accommodation. In our
view, no such direction can be issued. The applicant has to
apply for a Married Accommodation. If any such application
is given, the same may be considered in accordance with the
rules and order in vogue, without being prejudiced in any
way due to the institution of this case by the applicant.
10. With the aforesaid observations, the Original
Application is dismissed.
11. No order as to costs.
12. Inform to the parties.
Sd/- Sd/-
VICE ADMIRAL M.P.MURALIDHARAN JUSTICE SHRIKANT TRIPATHI
MEMBER (A) MEMBER (J)
an.
(true copy)
Prl.Pvt.Secretary
The referred judgment is re-produced below :-
———————————————————-
Supreme Court of India
Union Of India (Uoi) vs Rasila Ram And Ors. on 6 September, 2000
Equivalent citations: 2000 (87) FLR 370, JT 2000 (10) SC 503, (2001) 10 SCC 623, (2000) 3 UPLBEC 2678
Bench: G Pattanaik, U Banerjee
ORDER
1. The aforesaid appeals are directed against the order of the Full Bench of the Central Administrative
Tribunal in a batch of applications before it, recording a finding that an order passed by the competent
authority under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 for eviction would also
come within the purview and jurisdiction of the Administrative Tribunal constituted under Administrative
Tribunals Act, 1985. The Tribunal by the impugned order has construed the expression ‘service matter’
defined in Section 3(q) of the Administrative Tribunals Act and because of the expression any other matter
whatsoever’ occurring in Clause (v) thereof, it has come to the conclusion that the eviction of unauthorised
occupants from the Government quarter, would tantamount to a service matter, and therefore, Tribunal retains
jurisdiction over the same, in view of the overriding effect given to the Act by virtue of Section 33 of the said
Act.
2. The Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the
“Eviction Act”) was enacted for eviction of unauthorised occupants from public premises. To attract the said
provisions, it must be held that the premises was a public premises, as defined under the said Act, and the
occupants must be held unauthorised occupants, as defined under the said Act. Once, a Government servant is
held to be in occupation of a public premises as an unauthorised occupant within the meaning of Eviction Act,
and appropriate orders are passed thereunder, the remedy to such occupants lies, as provided under the said
Act. By no stretch of imagination the expression, “any other matter,” in Section 3(q)(v) of the Administrative
Act would confer jurisdiction on the Tribunal to go into the legality of the order passed by the competent
authority under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. In this
view of the matter, the impugned assumption of jurisdiction by the Tribunal, over an order passed by the
competent authority under the Eviction Act, must be held to be invalid and without jurisdiction. This order of
the Tribunal accordingly stands set aside. The appeals are accordingly allowed.
Union Of India (Uoi) vs Rasila Ram And Ors. on 6 September, 2000
Saturday, July 19, 2014
tnpsc gp i services of 83 candidates debarred by Madras HC on 04.03.2011 (also upheld by sc on 30.06.2014)
The judgment of Madras High Court on 04.03.2011 regarding 83 TNPSC group I malpractice candidates is re-produced below.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04/03/2011
CORAM:
THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO
AND
THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN
W.A.NOS.1063 AND 1287 OF 2009
AND M.P.NO.1 OF 2009
W.A.NO.1063 / 2009
A.B. Natarajan ..
Appellant
Vs.
1.The Secretary
Tamil Nadu Public
Service Commission
Government Estate,
Chennai.
2.T.Jayaseelan
3.Sudhan R
4.D.Mohan
5.Balasubramaniam K
6.K.V.Muralidharan
7.R.Kalaiselvi
8.J.Vijayarani
9.K.Karpagam
10.J.Anne Mary Swarna
11.S.Vishkan
12.P.Karunakaran
13.P.Kumaravel Pandian
14.K.Ejilearassane
15.D.Baskarapandian
16.D.Ravichandran
17.K.Santhi
18.E.Ravendiran
19.B.Ganesan
20.M.S.Sangeetha
21.T.Christu Raj
22.S.S.Meenakshisundaram
23.R.Brindha Devi
24.M.Aruna
25.M.N.Poongudi
26.J.Ranjeethkumar
27.G.Stalin
28.K.Tharpagaraj
29.D.Ashok Kumar
30.R.Pandiarajan
31.C.Shyamala Devi
32.P.Vijayalakshmi
33.M.Kingshlin
34.M.Janaki
35.S.Aravind
36.N.Stephen Jesubatham
37.P.Thangadurai
38.K.Prabakar
39.S.S.Maheswaran
40.M.S.Manivannan
41.V.Shyamala Devi
42.K.Adhiveerapandiyan
43.N.Gandhikumar
44.D.Padmavathy
45.R.Seenivasan
46.M.Thangavel
47.R.K.Sujatha
48.M.Raji
49.P.Renuga Devi
50.R.Sumathi
51.K.Suganthi
52.T.Indira
53.N.Usha
54.M.Jeyaraman
55.K.P.Selvaraj
56.N.Satheesh Kumar
57.B.Subashini
58.M.Sandhanam
59.V.M.Chandisekaran
60.J.Anandhi
61.M.Hema
62.S.Yasodha Devee
63.M.Tamil Selvi
64.L.Balaji Saravanan
65.K.Shanmugam
66.G.Rajendraprasad
67.K.Balakrishnan
68.T.Prabhu
69.K.Pandian
70.P.Subhashini
71.P.Nadukkatturaja
72.T.Selvakumaran
73.M.Dhanalakshmi
74.V.Sivakumar
75.E.Elanselvi
76.R.V.Kaveri
77.T.Vanitha
78.V.Chamundeeswari
79.S.Malarvili
80.G.Laxmipriya
81.N.Lavanya
82.K.Stalin
83.J.Palaneeswari
84.S.Lakshmi
85.K.P.Vanathi
86.P.Rajalakshmi
87.G.Chitrapavai
88.T.Jeyaraman
89.V.Nallasivam
90.V.Pitchai
91.K.Varadarajan
92.N.Srinivasan ... Respondents
PRAYER: Writ Appeal filed under Clause 15 of Letters Patent
against the order dated 10.07.2009 passed in W.P.No.30885 of 2004.
For
Appellant : Mr.Vijay Narayan
Senior
counsel
for
Mr.N.Subramaniyan
For
Respondent-1 : Mr.N.R.Chandran
Senior
counsel
for
Mr.R.Suresh Kumar
For
Respondent-50 : Mr.N.G.R.Prasad
For
Respondents
52
& 57 : Mr.V.Subbiah
W.A.NO.1287 OF 2009
S.Madhavan .. Appellant
Vs.
1.The Secretary
Tamil Nadu Public Service
Commission
Anna Salai,
Chennai 600 002.
2.T.Jayaseelan .. Respondents
PRAYER: Writ Appeal filed under Clause 15 of Letters Patent
against the common order dated 10.07.2009 passed in W.P.No.17969 of 2004 batch
of writ petitions.
For
Appellant : Mr.B.Kumar
Senior
counsel
for
Mr.P.K.Rajesh Praveen Kumar
For
Respondent-1 : Mr.N.R.Chandran
Senior
counsel
for
Mr.R.Suresh Kumar
COMMON JUDGMENT
D.HARIPARANTHAMAN, J.
These
writ appeals are directed against the common order dated 10.07.2009 passed by a
learned single Judge of this Court in W.P.No.17969 of 2004 batch.
2.The
facts leading to the filing of these appeals are as follows:
(a)
The appellant in W.A.No.1063 of 2009 is the petitioner in W.P.No.30885 of 2004.
The appellant in W.A.No.1287 of 2009 is the petitioner in W.P.No.17969 of 2004.
(b)
The appellant in W.A.No.1063 of 2009 filed the writ petition in W.P.No.30885 of
2004 questioning the selection and appointment made in Group I Services for the
year 2000-2001 by the Tamil Nadu Public Service Commission (shortly "the
TNPSC") and for a direction to consider him for appointment. In the said
writ petition, all the selected candidates were shown as respondents.
(c)
The appellant in W.A.No.1287 of 2009 along with 17 others filed the writ
petition in W.P.No.17969 of 2004 questioning the very same selection and
appointment made in Group I Services for
the year 2000-2001 and to consider their claim for appointment in Group I Services. Except the appellant in
W.A.No.1287 of 2009, all others withdrew the writ petition.
(d)
The appellant in W.A.No.1287 of 2009 also filed another writ petition in
W.P.No.482 of 2005 praying for a direction to the Central Bureau of
Investigation, New Delhi to investigate the allegations of massive corruption
and fraud in the examinations and recruitments conducted by the TNPSC for
GroupI Services for the year 2000
2001.
(e)
Challenging the very same selection, 13 unsuccessful candidates filed the writ
petition in W.P.No.19851 of 2004.
(f)
All those writ petitions were disposed of by the learned single Judge, by a
common order dated 10.07.2009.
(g)
While deciding the aforesaid batch of writ petitions on 10.07.2009, the learned
single Judge framed the following issues:
"20.After
considering the elaborate arguments made by the respective counsel, the
following points are culled out to be decided in this case:
1)The
objection raised by the petitioner S.Madhavan in W.P.No.482 of 2005, especially
relating to 8 instances as enumerated above wherein it is stated that at least
the said eight candidates were selected due to corrupt practice, while other
corresponding 8 persons who have scored more marks have been denied their
rights of selection.
2)The
introduction of scaling system in respect of optional subjects chosen by the
candidates in the main written examinations as to whether the same is arbitrary
or resulting in impropriety in the process of selection.
3)The
violation of instructions given by the TNPSC in answering the questions in the
main written examination papers, as to whether such violations can be treated
as making indication to the examiners while valuing for any undue favouritism
and consequently, as to whether such selection should be interfered with,
especially in the light of detailed report of second advocate
Commissioner."
(h)
All the issues were decided against the petitioner in the respective writ
petition leading to the filing of the
present writ appeals and among the three issues framed by the learned single
Judge in the batch of writ petitions, the first issue was not agitated by the
appellants in these writ appeals.
3.We
have heard the submissions made on either side and perused the materials
available on record.
4.The
TNPSC issued a notification dated 27.12.2000 inviting applications from
candidates for direct recruitment against 95 vacancies (subsequently revised as
91 vacancies) in the following posts included in Group-I Services for the year
2000-2001.
Sl.
No
(1)
Name of Service
(2)
Name of Post
(3)
No. of vacancies
(4)
1
Tamil Nadu Civil Service
Deputy Collector
24
2
Tamil Nadu Police Service
Deputy Superintendent of Police (Category-I)
20
3
Tamil Nadu Commercial Taxes Services
Commercial Tax Officer
10
4
Tamil Nadu Co-operative Service
Deputy Registrar of
Co-operative Societies
33
5
Tamil Nadu Panchayat Development Service
Divisional Development Officer
5
6
Tamil Nadu General Service
District Employment Officer
2
7
Tamil Nadu Fire Service
Divisional Fire Officer
1
Total
95
5.Along
with the notification, instructions to candidates appearing for competitive
(main written) descriptive type examination was issued by the TNPSC. Clause Nos.9, 11, 14, 15, 22 and 23 of the
instructions are relevant for the purpose of this case and the same are
extracted hereunder:
"9.Candidates
are required to provide themselves with their own pens, ink, blotting paper and
instrument boxes. They are permitted to
use only Fountain pen, steel pen and ball point pen using blue or black or blue
black inks only.
Candidates
are advised to leave all personal belongings, books etc., outside the
examination hall. Tea, Coffee, Snacks, Soft drinks, etc., will not be served
insider or outside the examination hall. Candidates are to maintain strict
silence. Candidates should not borrow any material, instruments from other
candidates. They shall use only their
own pens and permitted material.
11.Candidates
should write their answers on both the pages of the answer books supplied to
them.
The
register numbers should be written only on the front page of the first sheet of
the main answer book in the space provided for that purpose. They should not write their Register number
in the additional answer books, graph sheets, maps or in the journal sheets
supplied to them. Two marks from the total marks will be deducted for violation
of this instruction.
14.Candidates
should not write the register number any where except in the space provided for
it. They should not write their names or
initials any where. While answering
order, judgment or letter writing questions they should use only the names and
addresses given in the question or general instructions at the top of the
question paper. Two marks will be deducted for violation of this instruction.
Candidates
should not write any irrelevant or impertinent remarks or any appeal or any
marks or irrelevant matter including an appeal to the Examiner for higher
marks. The answer book of the candidates who violate this instruction will be
invalidated.
15.Candidate
should give the correct numbers of the question or sub-division in their
answers. If they fail to indicate the correct question number or sub-division
of a question or if they give the question number incorrectly, they are liable
to lose marks.
22.The
application of the candidate who violates any one or more of these instructions
or instructions printed on the main answer book or in the memorandum of
admission, will be rejected and or his answer books will be invalidated and or
he/she will be debarred for such period as the Commission considers fit.
23.A
reduction of two marks will be made for each mistake i.e., for writing the register
number incorrectly or for writing the name of the subject and paper
incorrectly. A reduction of two marks will be made for the omission to write
the register number in the space provided for it."
6.Note
(iv) to clause 10 of the notification is also relevant for the purpose of this
case and the same is extracted hereunder:
"10.(iv)
The Scaling Technique for evaluation of answer papers will be adopted in the
Main Written Examination."
7.The
TNPSC also issued Memorandum of Admission to appear for the written
examinations. The said Memorandum contains 8 notes. Note 5 is relevant for the purpose of this
case and the same is extracted hereunder:
"5.The
candidates should not use colour pens, sketch pens, pencils, except those
permitted in the instructions etc., to candidates for any purpose including
drawing, underlining and highlighting. They should not write their Register
number anywhere (including additional answer books) except in the place
provided at the top of the front page of the main answer book."
8.Based
on the preliminary examination, 778 faced written examinations. Out of them,
182 were selected for oral test and 91 out of 182 were ultimately selected and
appointed. As stated above, writ petitions were filed challenging their
selection.
9.The
crux of the allegation made in those writ petitions was that the selected
candidates used colour pens, sketch pens and pencils etc., and also made
certain marks contrary to the instructions issued by the TNPSC to candidates
appearing for competitive (main written) descriptive type examination. There
was also another allegation that the scaling technique for evaluation of answer
scripts was not adopted in the main written examination as provided in the
notification.
10.The
TNPSC refuted the allegations stating that the scaling technique was adopted,
but however, it had applied the scaling
technique only in respect of the optional subjects where more than 5 candidates
appeared. They acted based on the expert opinion and no prejudice was caused to
the writ petitioners. The TNPSC produced all the answer scripts in this regard.
11.The
learned single judge appointed an Advocate Commissioner vide order dated
31.07.2007 in W.P.No.30885 of 2004. The Advocate Commissioner submitted his
report dated 16.08.2007. However, both the petitioners therein as well as the
TNPSC made objections to the report dated 16.08.2007 of the Advocate
Commissioner.
12.In
those circumstances, the learned single Judge passed another order dated
23.01.2009 in the very same writ petition viz., W.P.No.30885 of 2004 appointing
second Advocate Commissioner. In this regard, paras 1 to 3 of the order dated
23.01.2009 appointing the second Advocate Commissioner are extracted hereunder:
"The
learned counsel for the Tamil Nadu Public Service Commission (TNPSC) has
produced 14 bundles of answer papers pertaining to 91 candidates who were
selected in the competitive examinations held in 2000-01 in respect of Group-I
Examinations containing a total number of 637 answer papers.
2.Even though
the Advocate Commissioner, who was appointed earlier has filed a report, the
report has not contained details about various alleged violations. Therefore, after elaborate arguments, in the
circumstances of the case, this Court is of the view that the entire answer
sheets produced by the TNPSC as stated above are to be referred to the Advocate
Commissioner to give a factual report.
3.In
view of the same, Mr.S.R.Sundar, New No.235, Old No.112, V Floor, Angappa
Naicken Street, Chennai 600 001, having Cell No.9444055853 and Landline
No.25224477, is appointed as Advocate Commissioner and he shall file a report
after verification of 637 answer sheets in respect of 91 candidates each having
seven written papers, which are to be produced by the learned counsel for the
TNPSC before him. The model forms of the said seven papers as submitted by the
petitions counsel are also to be produced before the learned Advocate
Commissioner. The learned Advocate Commissioner shall examine answer papers in
the presence of respective counsel and file a report in respect of the
following:
1)use of
sketch pen in the answer papers;
2)use of
pencils in the answer papers
3)use of
two colours;
4)making
of some markings if used in the answer sheets
like cross, crescent and om;
5)writing
of name of candidates, if any, in the answer
sheets; and
6)writing
question numbers wrongly in the answer sheets
and then making alterations in that regard."
13.The
second Advocate Commissioner perused 637 answer scripts belonging to the 91
selected candidates and submitted a detailed report dated 20.02.2009 in one
volume containing annexure 1 and 2. That
apart, he has filed 3 volumes running 440 pages each as annexure 3 and gave a
detailed candidates wise report in respect of each paper. The second Advocate
Commissioner also filed 4 CDs' along with his report. Based on the aforesaid
voluminous report of the second Advocate Commissioner, the appellant in
W.A.No.1287 of 2009 has filed the condensed report in the following form:
Sl.
Name (Res. No)
Reg. No.
Pages from
Adv.
Comm.
(1)
Use of Sketch
(2)
Use of Pencil
(3)
Two Colour
(4)
Irrelevant Markings
(5)
Writing Name/ Reg.
No.
(6)
Wrong Question No. Written &Corrected it
Advocate Comm.
Remarks
1
M. Raji (R48)
512541
408-414
Yes
Yes
Yes
No
No
Yes
Blue and Orange Sketch Pen used
2
S.Malarvizhi (R79)
508273
234-240
Yes
Yes
No
No
No
Yes
Purple colour sketch used
3
V.Shyamala Devi (R41)
604980
304-310
YES
YES
NO
NO
NO
YES
Sketch used
4
Sathishkumar (R56)
514721
374-380
NO
YES
YES
NO
NO
YES
5
Seenivasan (R45)
514907
555-561
NO
YES
YES
NO
NO
YES
6
Jeyasheelan (R2)
505528
101-107
NO
YES
YES
NO
NO
YES
7
Suganthi (R51)
596134
150-156
NO
YES
YES
NO
NO
YES
8
Ananthi (R60)
574504
164-170
NO
YES
YES
NO
NO
YES
9
Nadukatturaja (R71)
509882
195-205
NO
YES
YES
NO
NO
YES
10
Kalaiselvi (R7)
506000
220-226
NO
YES
YES
NO
NO
YES
11
Arvind (R35)
500894
227-233
NO
YES
YES
NO
NO
YES
12
Chamundeeswari (R78)
502369
625-631
NO
YES
NO
YES
NO
YES
7th page left blank and written only MANI in the center of
the blank page
13
Dhanalakshmi (R73)
562807
653-659
NO
YES
NO
YES
NO
YES
14
K.Shanthi (R17)
526199
52-58
NO
YES
YES
NO
NO
NO
15
M.Hema (R61)
563769
255-261
NO
YES
YES
NO
NO
NO
16
G.Stalin (R27)
572125
583-589
NO
YES
YES
NO
NO
NO
17
K.Balakrishnan (R67)
501718
639-645
NO
YES
YES
NO
NO
NO
18
Subhashini (R57)
535337
332-338
NO
YES
YES
NO
NO
NO
19
K.V.Muralidharan (R6)
509392
367-373
NO
YES
YES
NO
NO
NO
Map supplied by TNPSC is missing in Geography I
20
N.Lavanya (R81)
585356
381-387
NO
YES
YES
NO
NO
NO
21
R.Sumathi (R50)
517558
422-428
NO
YES
YES
NO
NO
NO
22
R.Ranjithkumar (R26)
533793
73-79
NO
YES
NO
NO
NO
YES
23
Thangadurai (R37)
518279
87-93
NO
YES
NO
NO
NO
YES
24
K.Pandian (R69)
510708
122-128
NO
YES
NO
NO
NO
YES
25
K.Karpagam (R9)
522973
129-135
NO
YES
NO
NO
NO
YES
26
C.Chitrapavai (R87)
502689
157-163
NO
YES
NO
NO
NO
YES
27
T.Vanitha (R77)
502689
192-198
NO
YES
NO
NO
NO
YES
28
K.P.Vanathi (R85)
528377
206-212
NO
YES
NO
NO
NO
YES
29
M.S.Sangeetha (R20)
513978
248-254
NO
YES
NO
NO
NO
YES
30
R.Brindha Devi (R23)
529859
262-268
NO
YES
NO
NO
NO
YES
31
V.Sivakumar (R74)
516441
269-275
NO
YES
NO
NO
NO
YES
32
V.Pitchai (R90)
550343
283-289
NO
YES
NO
NO
NO
YES
33
AnnaMarySwarna (R10)
542329
311-317
NO
YES
NO
NO
NO
YES
34
J.Palaneeswari (R83)
510580
360-366
NO
YES
NO
NO
NO
YES
35
R.V.Kaveri (R76)
546640
429-435
NO
YES
NO
NO
NO
YES
36
S.Elanselvi (R75)
575746
444-449
NO
YES
NO
NO
NO
YES
37
P.Subhashini (R70)
540875
471-477
NO
YES
NO
NO
NO
YES
38
K.Shanmugam (R65)
515870
478-484
NO
YES
NO
NO
NO
YES
39
M.Tamil Selvi (R63)
518134
485-491
NO
YES
NO
NO
NO
YES
40
N.Gandhikumar (R43)
503760
499-505
NO
YES
NO
NO
NO
YES
41
M.S.Manivannan (R40)
508537
506-512
NO
YES
NO
NO
NO
YES
42
R.K.Sujatha (R47)
517477
520-526
NO
YES
NO
NO
NO
YES
43
M.Santhanam (R58)
513939
534-540
NO
YES
NO
NO
NO
YES
44
T.Selvakumar (R72)
553436
569-571
NO
YES
NO
NO
NO
YES
45
V.Nallasivam (R89)
510029
597-603
NO
YES
NO
NO
NO
YES
46
S.Meenakshisundaram (R22)
508924
632-638
NO
YES
NO
NO
NO
YES
47
P.Rajalakshmi (R86)
533379
660-666
NO
YES
NO
NO
NO
YES
48
Chandrasekar (R59)
521364
674-680
NO
YES
NO
NO
NO
YES
49
M.Aruna (R24)
501232
681-687
NO
YES
NO
NO
NO
YES
50
S.Lakshmi (R84)
507688
66-72
NO
YES
NO
NO
NO
NO
51
Yashoda Devi (R62)
574245
178-184
NO
YES
NO
NO
NO
NO
52
Kumaravel Pandian (R13)
547037
185-191
NO
YES
NO
NO
NO
NO
53
N.Usha (R53)
528306
318-324
NO
YES
NO
NO
NO
NO
54
P.Renukadevi (R49)
525916
325-331
NO
YES
NO
NO
NO
NO
First page of main answer book left blank
55
N.StephenJesupatham (R36)
595941
339-345
NO
YES
NO
NO
NO
NO
56
K.Stalin (R82)
517019
346-352
NO
YES
NO
NO
NO
NO
57
K.Balasubramanian (R5)
501827
394-400
NO
YES
NO
NO
NO
NO
58
G.Rajendraprasad (R66)
512425
401-407
NO
YES
NO
NO
NO
NO
59
P.Vijayalakshmi (R32)
520054
450-456
NO
YES
NO
NO
NO
NO
60
M.N.Poongodi (R75)
524965
548-554
NO
YES
NO
NO
NO
NO
61
D.Ravichandran (R16)
513416
562-568
NO
YES
NO
NO
NO
NO
62
R.Sudhan (R3)
517342
576-582
NO
YES
NO
NO
NO
NO
63
T.Jayaraman (R88)
505724
590-596
NO
YES
NO
NO
NO
NO
64
M.Janaki (R34)
505125
618-624
NO
YES
NO
NO
NO
NO
65
P.Karunakaran (R12)
564900
646-652
NO
YES
NO
NO
NO
NO
66
T.Ashok Kumar (R29)
501318
667-673
NO
YES
NO
NO
NO
NO
67
J.Vijayarani (R8)
519920
297-303
NO
NO
YES
YES
NO
YES
+ (- 3-This religious symbols presented in the first page of
the main answer book in 4 out of 7 papers
68
D.Mohan (R4)
509082
108-114
NO
NO
YES
NO
NO
YES
69
G.Lakshmipriya (R80)
592685
115-121
NO
NO
YES
NO
NO
YES
70
Ejilearassane (R14)
530254
492-498
NO
NO
YES
NO
NO
NO
71
Balaji Saravanan (R64)
501692
213-219
NO
NO
NO
YES
NO
NO
72
T.Indira (R52)
537915
415-421
NO
NO
NO
YES
NO
NO
73
N.Seenivasan (R92)
540819
80-86
NO
NO
NO
NO
NO
YES
74
K.Tharagaraj (R88)
518379
94-100
NO
NO
NO
NO
NO
YES
75
T.Christraj (R21)
502707
143-149
NO
NO
NO
NO
NO
YES
76
S.S.Maheswaran (R39)
547537
171-177
NO
NO
NO
NO
NO
YES
77
T.Prabhu (R68)
511368
276-282
NO
NO
NO
NO
NO
YES
78
K.P.Selvaraj (R55)
515169
290-296
NO
NO
NO
NO
YES
YES
This candidate wrote his reg. no.515169 in map of Geography
I
79
D.Baskara Pandian (R15)
537145
436-442
NO
NO
NO
NO
NO
YES
80
B.Ganesan (R19)
544272
457-463
NO
NO
NO
NO
NO
YES
81
K.Athiveerapandian (R42)
500072
541-547
NO
NO
NO
NO
NO
YES
82
M.Thangavel (R46)
555783
604-610
NO
NO
NO
NO
NO
YES
83
E.Raveendran (R18)
513258
611-617
NO
NO
NO
NO
NO
YES
84
S.Visakan (R11)
520273
388-393A
NO
NO
NO
NO
NO
NO
Perfect candidate in all 7 papers
85
C.Shyamala Devi (R31)
554258
353-359
NO
NO
NO
NO
NO
NO
Perfect candidate in all 7 papers
86
R.Pandiarajan (R30)
550012
513-519
NO
NO
NO
NO
NO
NO
Perfect candidate in all 7 papers
87
K.Kingslin (R33)
507085
59-65
NO
NO
NO
NO
NO
NO
Perfect candidate in all 7 papers
88
K.Prabhakar (R38)
511248
464-470
NO
NO
NO
NO
NO
NO
Perfect candidate in all 7 papers
89
D.Padmavathi (R44)
510549
136-142
NO
NO
NO
NO
NO
NO
Perfect candidate in all 7 papers
90
M.Jayaraman (R54)
545588
241-247
NO
NO
NO
NO
NO
NO
Perfect candidate in all 7 papers
91
K.Varadharajan (R91)
536138
527-533
NO
NO
NO
NO
NO
NO
Perfect candidate in all 7 papers
TOTAL
3
66
21
5
1
55
8
In nutshell, 83 out of 91 candidates committed the following
types of violations, which is not disputed by the TNPSC.
"1.Sketch
pen used candidates -
3
2.Pencil
used candidates - 66
3.Two
colours used candidates - 21
4.Irrelevant
marking used candidates -
5
5.Writing
Name / Register No. -
1
6.Wrong
question no. written candidates - 55
7.Perfect
candidates -
8
9.First
page of main answer book left blank - 21 "
14.The
learned single Judge held that non-adoption of scaling technique for evaluation
of subjects where less than five candidates appeared would not affect the
selection. The learned single Judge also
held that violation of instruction and Memorandum of admission would not result
in the invalidation of answer scripts.
In the result, the learned single Judge rejected the writ petitions
leading to the filing of the present writ appeals.
15.The
issues that have to be decided in both the writ appeals are:
(i)whether the non-adoption of the scaling technique for
evaluation of answer scripts in respect of subjects where less than 5
candidates appeared would result in setting aside of the entire selection.
(ii)whether the violations of instructions and the
memorandum of admission committed by the selected candidates could invalidate
their selection to Group-I Services for the year 2000-2001; and
16.According
to the learned senior counsel for the appellants, the learned single Judge
ought to have set aside the selection, since the TNPSC failed to adopt the
scaling technique uniformly for evaluation of all answer scripts relating to
optional subjects. According to them, as per clause 10(iv) of the notification,
the scaling technique for evaluation of all answer scripts should be adopted
uniformly to all the subjects. According to the learned senior counsel for the
appellants, the faulty adoption of this crucial technique in the selection
procedure has distarded the whole ranking system. According to him, the glaring violation of
the procedure of selection under clause 10(iv) of the notification is that 25
out of 91 candidates were selected without adopting this technique. But
however, the TNPSC adopted the scaling technique for evaluation of answer
scripts in respect of subjects where there were more than five candidates
appeared. To explain, in respect of subjects where less than five candidates
appeared, the scaling technique was not adopted.
17.On
the other hand, the learned senior counsel for the respondent TNPSC submitted
that since the expert opined that if the scaling technique is adopted for the
subjects written by the candidates five or less than five in number, result
will be negative / counter productive. Therefore, based on the expert's opinion,
the scaling technique was only adopted for the subjects where more than five
candidates appeared. It was also argued
that the scaling technique was applied to the appellants and they were
beneficiaries and that the candidates who appeared in the subjects, where less
than five persons appeared, did not choose to question the same. The learned
senior counsel also took us through the elaborate discussion of the learned
single Judge on the adoption of scaling technique for evaluation of answer
scripts. The learned counsel for respondent No.50 sought to sustain the order
of the learned single Judge and supported the submissions of the learned senior
counsel for the TNPSC.
18.We
have gone through the reasoning given by the learned single Judge. We are in
entire agreement with the learned single Judge in holding that there is no
infirmity in adopting the scaling technique for evaluation of answer scripts in
respect of subjects where more than five candidates appeared. The learned
single Judge also found that while the appellant in W.A.No.1287 of 2009 secured
951.50 out of 1800 marks without application of scaling technique, he secured
952.27 marks on the adoption of scaling technique. Likewise, the appellant in
W.A.No.1063 of 2009 secured 1021 out of 1800 marks without application of
scaling technique and secured 1045.23 marks on the adoption of scaling
technique. The appellants were not able to demonstrate as to how the
non-adoption of scaling technique for evaluation of answer scripts in respect
of subjects where less than five candidates appeared would put them in a
disadvantageous position, particularly when the TNPSC stated that the raw marks
obtained by them would be of advantageous to those candidates and not the
scaling technique. Furthermore, as
rightly pointed out by the learned senior counsel for the TNPSC, none of the
candidates whose answer scripts were not evaluated based on scaling technique
complained of prejudice. For the aforesaid reasons, we confirm the findings of
the learned single Judge that the non-adoption of scaling technique for
evaluation of answer scripts in respect of subjects where less than five
candidates appeared would not cause any prejudice. Issue No.1 is answered
accordingly.
19.While
interpreting Note 5 of the Memorandum of admission, the learned single Judge,
in para 23(h) of the judgment held that there is no prohibition in the
instructions against using of ordinary pencils and using of colour pencils
alone was prohibited. In view of the importance of the matter, Note-5 of Memorandum
of admission is once again reproduced hereunder:
"5.The
candidates should not use colour pens, sketch pens, pencils, except those
permitted in the instructions etc., to candidates for any purpose including
drawing, underlining and highlighting. They should not write their Register
number anywhere (including additional answer books) except in the place
provided at the top of the front page of the main answer book."
20.In
para 23(h) of the judgment the learned single Judge read pencils as
"colour pencils" by adding "colour" before
"pencils". In our view, the same is quite unwarranted. When Note-5 of
the Memorandum of admission makes it very clear that use of pencils was
prohibited, the learned single Judge is not correct in holding use of colour pencils
alone was prohibited. In our view, pencils mean both the ordinary pencils as
well as colour pencils. In fact, the written arguments filed by TNPSC
strengthen our view as TNPSC issued the following instructions in clause 16(i)
of the instructions for the examinations that were conducted subsequently.
"16(i)
Candidates should not use colour pens, sketch pens, colour pencils except those
permitted in the "Instructions etc., to candidates for any purpose
including drawing, underlining and highlighting. The answer books of the
candidates who violate this instruction will be invalidated."
That is, the TNPSC added "colour" before
"pencils" and prohibiting use of colour pencils alone in the
subsequent examinations by way of the aforesaid instruction No.16(i).
21.As
far as sketch pens are concerned, they are only in colours. As per Note-5 of
the Memorandum of admission, the TNPSC prohibited use of pencils. Furthermore,
the use of pencils was prohibited as it could be easily erased and corrections
could be made. In any event, Note-5 of the Memorandum of admission is
unambiguous and use of pencils is prohibited in the examination for Group I
Services for the year 2000-2001. The
intention and the aim that is sought to be achieved by prohibiting the use of pencil
is to curtail candidates from indulging in malpractices. In fact, n clause 9 of the instructions it
has been clearly mentioned that "candidates are permitted to use only
fountain pen, steel pen and ball point pen using blue or black or blue black colour
inks only." Therefore, we have no hesitation to hold that clauses 9 and 22
of the instructions that were extracted above read with Note-5 of the
Memorandum of admission prohibit use of pencils.
22. To
verify, we have directed the Tamil Nadu Public Service Commission to produce
before us the answer sheets of the selected and non-selected candidates. Accordingly, they have produced before us the
answer sheets. We have gone through the
answer sheets, with reference to the second Advocate Commissioner's
report. We are able to find many lacunae
and malpractices adopted on the part of some of the selected candidates. As a tip of the iceberg we extract hereunder
some of the lacunae observed by us:
i) J.Vijayarani (R.9 in W.A.No.1063 of 2009) (with Registered
No.519920) has used religious symbols (om, Cross and crescent) in four papers
in the first page of the main answer book.
ii) T.India (R.52 in W.A.No.1063 of 2009) (with Registration
No.537915) used the 'Sum' symbol 'c' at top of several pages in Sociology
Paper-II.
Iii) Chamundeeswari (R.78 in W.A.No.1063 of 2009) (with
Registration No.502369), left the 7th page blank and had written a peculiar
code 'mani' at the centre of the full blank page in the General Studies
Paper-I.
23.
The second Advocate Commissioner found that 66 out of 91 selected candidates
used pencils, 3 out of 91 used colour pens and 21 out of 91 used two colours,
and the same is not in dispute. When the candidates appeared for the higher
service and disregarded the instructions, the same could be viewed very
seriously. Though the learned single Judge referred to the report of the second
Advocate Commissioner, he did not take into account the aforesaid violations
pointed out by the second Advocate Commissioner and instead he proceeded simply
on the premise that use of pencils was not prohibited.
24.The
second Advocate Commissioner found that five of the selected candidates used
religious symbols, such as, Cross, 'Om' and half moon etc.
In this regard, the learned single Judge, in para 25 of the judgment
held that the same could not be construed as irrelevant markings, inasmuch as
the candidates put only the symbols of all religions. The aforesaid finding is
found in the passage from para 25 of the judgment of the learned single Judge,
which is extracted hereunder:
"25......
That apart, in respect of the violation about mentioning symbols viz.,
"cross, Ohm, half moon", I am of the view, by applying clause 14, the
same cannot be construed to be irrelevant marking inasmuch as the candidate has
put only the symbols of all religions and the same cannot said to be either
irrelevant or impertinent marking which is likely to appeal the
examiners......"
25.When
second portion of clause 14 of the instructions makes it clear that any marks
or irrelevant markings would invalidate the answer scripts, the learned single
Judge was not correct in holding that the candidates put only the symbols of
all the religions. We wonder as to in what manner, the marking of such
religious symbols are relevant for the purpose.
The intended examination is not meant to assess the religious beliefs of
the candidates,but their knowledge on various subjects. These cheap techniques of sympathy gaining,
adopted on the part of the candidates, in violation of the instructions. It is within every prudent man's knowledge
that such irrelevant markings are strictly prohibited, since they could even be
a guiding/identification factors for indulging in malpractices, lest it would
be very difficult to identify, chase and trace the script of a particular
candidate. In this regard, the second
portion of clause 14 of the instructions is reproduced hereunder:
"Candidates
should not write any irrelevant or impertinent remarks or any appeal or any
marks or irrelevant matter including an appeal to the Examiner for higher
marks. The answer book of the candidates who violate this instruction will be
invalidated."
Hence, we are not able to agree with the findings recorded
by the learned single Judge in this regard.
26.
Moreover, clause 14 of the instructions makes it clear that any marks or
irrelevant matters could invalidate the answer scripts. Therefore, any marks or
irrelevant matters written by the candidates, particularly, those who aspire to
Group I posts, their answer scripts
could be invalidated as per clause 14 of the instructions. Clause 22 of the
instructions makes it very clear that violation of Memorandum of admission
would lead to the rejection of the application and would lead to the
invalidation of the answer scripts. Thus, the answer scripts of the candidates,
who used sketch pens, pencils/colour pencils and colour pens had to be
invalidated in view of Note-5 of Memorandum of admission read with clause 22 of
the instructions. Therefore, the TNPSC ought to have invalidated the answer
scripts of the candidates who used colour pens / sketch pens / pencils and also
who wrote any marks or irrelevant markings in the answer scripts.
27.It
is true that the other violations, namely, writing names and register numbers
at improper places and also writing wrong question numbers, could not lead to
invalidation of answer scripts in view of clause 11 and first portion of clause
14 and clause 23 of the instructions. As per those clauses, there would be only
reduction in marks and the same would not lead to invalidation. But when there
is violation of the Memorandum of admission, that would lead to invalidation of
answer scripts, as per clause 22 of the instructions i.e. if the candidate used
colour pens and/or sketch pens and/or pencils, his/her answer scripts would be
invalidated. Likewise, when there is violation of the second portion of clause
14 of the instructions by writing any marks or any irrelevant matters, that
would lead to invalidation of the concerned answer script. Hence, we are not in
agreement with the findings recorded by the
learned single Judge.
28.In
fact, the learned single Judge, in para 35 of the judgment, held as follows:
"35.However,
when it is stated by the respondent / TNPSC that at least 48 answer papers of
the candidates who have violated the instructions have been invalidated on the
basis that they have used extensively the colour pens, sketch pens and colour
pencils in order to identify them to the examiners, especially in the circumstances
that the learned advocate Commissioner has found that some marks which are not
expected to be made in the answer papers have been made, the respondent/TNPSC
should have taken care to prevent such use of signs even though the same may
not be termed as irrelevant. Nevertheless, the TNPSC being the constitutional
functionary, entrusted with the avowed object of selecting candidates for
public service ought to be more careful because, it is those candidates
selected by the TNPSC who are going to be the valuable officers in the
governance of the state. Certainly, even a minor fault on the part of the TNPSC
can have adverse repercussion on the governance of the State in future. The
report of the learned advocate-Commissioner makes it clear that at least in few
number of cases the answer papers were not in accordance with the instructions
given and in spite of the same, the TNPSC has taken its own stand that such
markings formed no basis for attracting the examiners."
However, the learned single Judge found that those
violations could not invalidate the answer scripts of the selected candidates.
29.More
importantly, the appellant in W.A.No.1063 of 2009 categorically pleaded in para
11 of the affidavit filed in support of the writ petition in W.P.No.30885 of
2004 that at least 40 candidates have used sketch pens and some of the
candidates used sketch pens and pencils violating the norms fixed by the TNPSC.
Hence, the entire selection was illegal and violative of the norms and rules
fixed by the TNPSC. In this regard, para 11 of the affidavit filed in support
of the writ petition in W.P.No.30885 of 2004 is extracted hereunder:
"11)
I humbly submit that it was reliably learnt that some of the candidates have
used sketch pens and pencils by violating the norms fixed by the TNPSC. Immediately representation was given by the
candidates in time but, no action was taken. It was also learnt on enquiry that
more than 20% of the selected candidates (ie) atleast 40 candidates have used
Sketch Pens. Hence, the act of the respondent in not taking action against the
candidates who have used Sketch Pen and Pencils is nothing but allowing the
non-meritorious candidates to be selected. Hence, the entire selection process
is illegal and violative of the norms and rules fixed by TNPSC."
30.
The TNPSC filed a counter affidavit to the writ petition in W.P.No.30885 of
2004 admitting violations of norms by various persons and 48 answer scripts
have been invalidated for violating Note-5 of the Memorandum of admission. In
this regard, the relevant passage in para 29 of the counter affidavit filed by
the TNPSC is extracted hereunder:
"With
reference to the averments made in paras 11 and 12 of the Writ Petition, it is
submitted that in the Group I Main Written Examination, in the valuation of the
answer book it was ensured that the Commission's instructions were strictly
adhered to and 48 answer books have been invalidated for the reason that the
candidates have used Colour Pens, Sketch Pencil etc., for underlining / drawing
/ highlighting the answers in the answer books. ......."
31.
When the TNPSC invalidated 48 answer scripts for using colour pens, sketch pens
and pencils etc., for underlining / drawing / highlighting, the same yardstick
should have been adopted by the TNPSC in the case of 83 candidates among the 91
candidates as they also committed the same violations as found by the second
Advocate Commissioner, as otherwise, the action of the TNPSC would be
characterised as arbitrary and discriminatory and violative of Articles 14 and
16 of the Constitution. Hence, we have no hesitation in holding that since the
83 among the 91 candidates violated the first portion of clause 14 of the
instructions and clause 22 of the instructions read with Note-5 of Memorandum
of admission, their answer scripts are liable to be invalidated.
32.The
following judgments relied on by the learned senior counsel for the appellants
squarely applies to the facts of this case.
(a) The
Honourable Apex Court judgment in Karnataka Public Service Commission and
others Vs. B.M.Vijaya Shankar and others [AIR 1992 SC 952]
(b) The
Honourable Apex Court judgment in Central Board of Secondary Education Vs.
Ms.Vineeta Mahajan and another [AIR 1994 SC 733]
(c)
Division Bench judgment of this Court in Dr.M.Vennila Vs.Tamil Nadu Public
Service Commission [2006 (3) CTC 449]
(d)
Division Bench judgment of this Court in Dr.A.Rajapandian Vs. State of Tamil
Nadu [2006(5)CTC 529]
(e)
Division Bench judgment of this Court in The Tamil Nadu Public Service
Commission and others Vs. R.Srinivasan and others in W.A.No.1408 and 1045 of
2009 (decided on 12.10.2009)
(f)
Division Bench judgment of the Punjab and Haryana High Court in Santosh Vs.
State of Haryana and another in C.W.P.No.4819 of 2002.
33.The
Division Bench judgment of this Court in W.P.No.17639 of 2001 etc., batch
(decided on 25.02.2005) and the Division Bench judgment of this Court in
W.A.No.585 of 2009 (decided on 11.11.2009) relied on by the learned counsel for
the TNPSC are not applicable to the facts of this case.
34.In
the judgment of the Honourable Apex Court in Karnataka Public Service
Commission and others Vs. B.M.Vijaya Shankar and others [AIR 1992 SC 952] the
Karnataka Public Service Commission refused to evaluate the answer scripts of
the candidates who disregarded the instructions issued by the Commission by
writing their roll numbers not only on the front page of the answer scripts in
the space provided for it, but even at other places. Those candidates
approached the Karnataka Administrative Tribunal and the Tribunal issued
direction to the Commission to evaluate answer scripts. Ultimately, the matter
went to the Honourable Apex Court and the Apex Court reversed the judgment of
the Tribunal. Clause (1) of the instructions to candidates states that
candidates should write their register number and other particulars in the
space provided and they should not write the same in other places. Clause
(xiii) of the instructions contemplate that the failure on the part of the
candidates in complying with the instructions would render them liable for
punishment, as the Commission may deem fit to impose. Clause (xii) of the
instructions states that the candidates must abide by instructions. It was argued that Clause (xiii) dealing with
punishment was vague and that could not give power to the Commission not to
evaluate the answer scripts. The same was rejected by the Honourable Apex Court
and the relevant passage from para 2 of the judgment is extracted hereunder:
"2.....Relevant
clause (1) of the Instructions to Candidates is extracted below:
Before commencing your answers please write your register
number and other particulars in the space provided above. Do not write your
name or register number or sign anywhere in the answer book or on any loose
sheets, such as precis sheets, maps, graph papers, etc.
It is not disputed and it was found, even, by the Tribunal
that it was printed on the first page of, every, answer book. Its observance
was mandatory and its disregard was punishable as is clear from instructions
(xii) and (xiii) of General Instructions to the candidates which are extracted
below:
(xii)
The candidates must abide by such instructions as may be specified on the cover
of the answer book or any further instructions which may be given by the
Supervisor/Invigilator of the examination.
(xiii)
If the candidates fail to do so or indulge in disorderly or improper conduct,
they will render themselves liable to expulsion from examination and/or such
other punishment as the Commission may deem fit to impose.
Is the expression, such other punishment as the Commission
may deem fit to imposevague and thus arbitrary? We do not think so. Read with
clause (xii) it presents no difficulty. It provides action for breach of that
which is, clearly, specified. It cannot be characterised as vague. And then any
capricious exercise of power can always be assailed. More important than this
is that provisions attempting to infuse discipline in competitive examinations
to be conducted by the Commission cannot be construed with same yardstick as a
provision in penal statutes. Moreover the Commission did not impose any penalty
on the candidates. Their examination was not cancelled nor they were debarred
from taking any examination conducted by the Commission for that year or any
year, in future. Their marks in papers, other than those in which they were
found to have acted in disregard of instructions were declared. The only action
taken was that those answer books in which roll numbers had been written inside
were not subjected to evaluation. In our opinion there was nothing, basically,
wrong in it."
35.In
the present appeals, the instructions are very clear and there is no vagueness
and the instructions makes it clear that the violation of instructions would
lead to invalidation of answer scripts. Thus, as per the aforesaid judgment of
the Honourable Apex Court, the TNPSC ought to have invalidated the answer
scripts.
36.In
the judgment of the Honourable Apex Court in Central Board of Secondary
Education Vs. Ms.Vineeta Mahajan and another [AIR 1994 SC 733] the Central
Board of Secondary Education (CBSE) cancelled the examination of a student for
having in possession some material while the candidate wrote examination. The
Delhi High Court interfered with the order of the CBSE cancelling the
examination holding that the student had not copied and the material was not
used for copying and that therefore, mere possession of some material without
using the same could not be treated as using unfair means at the
examination. The judgment of the Delhi
High Court was reversed by the Honourable Apex Court. The findings of the Delhi High Court is
extracted in para 4 of the judgment of the Honourable Apex Court and the
relevant passage therein is extracted hereunder:
"4.......
Having come to the conclusion, on facts, that the petitioner had not copied,
the question of imposing any penalty merely on the presumption of some written
notes being found with the candidate, could not be arrived at, on the facts and
circumstances of the present case......."
In para 5 of the judgment, the Honourable Apex Court gave
its reasoning for reversing the judgment of the High Court and the same is
extracted hereunder:
"5.
We do not agree with the reasoning of the High Court. The High Court fell into
patent error in reading a rebuttable presumption in the language of the Rule.
The Rule clearly defines the use of unfair means at the examination and lays
down in simple language that a candidate having in possession papers, relevant
to the examination, in the paper concerned, shall be deemed to have used unfair
means at the examination. The sine qua non, for the misconduct under the Rule,
is the recovery of the incriminating material from the possession of the
candidate. Once the candidate is found to be in possession of papers relevant
to the examination, the requirement of the Rule is satisfied and there is no
escape from the conclusion that the candidate has used unfair means at the examination.
The Rule does not make any distinction between bona fide or mala fide
possession of the incriminating material. The High Court reasoning, that the
candidate having not used the material
in spite of the opportunity available to her the possession alone would
not attract the provisions of the Rule, in our view, is not borne out from the
plain language of the Rule. May be, because of strict vigilance in the
examination hall the candidate was not in a position to take out the papers
from the pencil box and use the same. The very fact that she took the papers
relevant to the examination in the paper concerned and was found to be in
possession of the same by the invigilator in the examination hall is sufficient
to prove the charge of using unfair means by her in the examination under the
Rule."
37.
In the Division Bench judgment of this Court in Dr.M.Vennila Vs.Tamil Nadu
Public Service Commission [2006 (3) CTC 449] the TNPSC rejected the application
of the candidate who applied for the post of Assistant Surgeon (General) in the
Tamil Nadu Medical Services for the year 2003-2004 on the ground that the
candidate failed to sing the application below column 24 and the same amounted
to violation of para 17 of the instructions. A Division Bench of this Court
upheld the rejection of application by TNPSC in the aforesaid judgment.
38.
In the First Bench judgment of this Court in Dr.A.Rajapandian Vs. State of
Tamil Nadu [2006 (5) CTC 529] the First Bench of this Court followed the
aforesaid Division Bench judgment [2006 (3) CTC 449] and upheld the rejection
of 68 applications of the candidates who applied for the post of Veterinary
Assistant Surgeon in the Tamil Nadu Animal Husbandry Services for the year
2005-2006 on the ground that the candidates not signed the applications as per
the instructions.
39.The
First Bench of this Court in The Tamil Nadu Public Service Commission and
others Vs. R.Srinivasan and others in W.A.No.1408 and 1045 of 2009 (decided on
12.10.2009) considered Clause 12 of the instructions which is the same as that
of Clause 9 of the instructions herein and also Clause 16(i) of the
instructions which is similar to Note-5 of the Memorandum of admission. In the
said case, as in Clause 9 of the instructions herein, the candidates are permitted
to use blue or black or blue black inks. There is prohibition for use of colour
pens, sketch pens and colour pencils. The candidate did not use colour pens,
sketch pens or colour pencils. He used one of the inks permitted for writing
and the other permitted ink for underlining. The TNPSC invalidated his answer
scripts. The First Bench of this Court held that when the candidate did not use
colour pens, sketch pens or colour pencils, the TNPSC was not correct in
invalidating the answer papers.
40.In
the present appeals, as stated above, the respondent - candidates used colour
pens, sketch pens and pencils that were prohibited as per instructions.
41.A
Division Bench of the Punjab and Haryana High Court in Santosh Vs. State of
Haryana in C.W.P.No.4819/2002 upheld the decision of the Haryana Public Service
Commission cancelling the answer scripts pertaining to 3 subjects on account of
violation of instructions. The Division Bench held as follows:
"Learned
counsel for the Commission produced the said three papers in a sealed cover
which was opened in Court and we perused the papers in question. Learned
counsel for respondent No.2 also filed written statement and the stand of the
respondent No.2 is that the petitioner had used Black Ink in the said papers
which is specifically prohibited under the regulations. Upon perusal of the
said three papers, we found that in the answer book pertaining to the subject
of the General Knowledge, Black Ink has been used from page 4 (internal) till
the end. So far as the answer book pertaining to the subject of Business
Organisation and Management is concerned, the entire paper has been answered in
Black Ink including the title page and similarly, the answer book pertaining to
the subject of Business Organisation and Management is concerned, the entire
paper has been answered in Black Ink including the title page and similarly,
the answer book pertaining to the subject of Sociology, the entire paper has
been answered in Black Ink including part of the title page.
It is
specifically prohibited under instruction No.3-A and it is provided therein
that the candidate shall not use any other ink except Blue or Blue Black (copy
of which has been annexed as Annexure P-1).
The relevant extract of instruction to candidates read as under:
"INSTRUCTION
TO CANDIDATES"
1. XX XX XX
2. XX XX XX
XX XX XX
3.(a)
Disclosure of identity in any form like use of ink other than blue or blue
black ... writing of Roll Number and name at places other than specified
writing of serial No. of the scripts or putting of any type of mark etc., will
amount to use of unfair means and will be penalized by cancelling the paper and
answering Zero marks."
We are
satisfied that the answer books of the petitioner pertaining to three subjects
had been correctly cancelled on account of violation of instructions / rules
and also on account of disclosure of identity. We had earlier expressed our
opinion under similar circumstances in another case i.e., Civil Writ Petition
No.775 of 2000 (Narinder Gehleut Versus State of Haryana and another) decided
on 11.2.2000. Thus no case for
interference has been made out by the petitioner."
42
.Mr.N.G.R.Prasad, learned counsel appearing for the respondent No.50 in
W.A.No.1063 of 2009 sought to sustain the order of the learned single Judge and
adopted the arguments advanced by the learned senior counsel for the TNPSC.
43.The
learned Senior counsel for the TNPSC relied on the Division Bench judgments of
this Court in W.P.No.17639 of 2001 etc., batch (decided on 25.02.2005) and
W.A.No.585 of 2009 (decided on 11.11.2009).
44.W.P.No.17639
of 2001 etc., batch relates to recruitment of Sub-Inspector of Police. The
Tamil Nadu Uniformed Services Recruitment Board resorted to zone wise
selection, when the Rule do not provide for zone wise selection. The Division
Bench held that State wise selection alone should have been conducted and the
zone wise selection was bad. However, the Division Bench did not set aside the
selection as there was no other infirmity in the selection and the selection
was made on merits. Instead of conducting State wise selection, they had
conducted zone wise selection. Hence, the said judgment is of no assistance to
the respondent TNPSC. Even in the said
case, the persons who approached the Court were granted the relief, if they
obtained more marks than the cut off marks in any of the zones.
45.In
the another Division Bench judgment in W.A.No.585 of 2009, the TNPSC cancelled
the provisional selection of the candidate for Group-IV Services on the ground
that she failed to enclose the community certificate along with her
application. The Division Bench held that the candidate produced all the
essential certificates relating to qualification and that therefore, she was
eligible to participate in the selection. It was also held that all the
certificates that are required to be enclosed along with the application could
not be treated equally. The community
certificate could be produced even after the submission of application, but
before provisional selection is made. Furthermore, the Division Bench found
that the non-submission of certificate was not due to the fault of the
candidate and it was due to the fact that the authorities belatedly issued the
said certificate. In this regard, paras 7 and 20 of the said judgment are
extracted hereunder:
"7.There
can be no controversy that the instructions to candidates and the brochure bind
the candidates and the Service Commission, according to which, the candidates
are bound to produce all the necessary documents / certificates along with the
application. In general, the application
shall be rejected for non-production of such certificates / documents. But, in
our considered opinion, an exception can be carved out to the same. At this juncture, it would be worthwhile to
clarify that all certificates, which are required to be produced along with
application, cannot be treated equally. There are some certificates, like
certificates relating to the basic qualification etc., which are essential,
without which the applications cannot be entertained at all. On the other hand,
there are certain other certificates, like Community Certificate, certificates
relating to special consideration, like Sports Certificates, NCC, NSS
Certificates etc., which are not essential for entertaining the application of
the candidates. So, there can be no controversy that non-production of the
former kind of certificates within the cut off date, shall be a ground to
reject the application summarily, as mentioned in the instructions to the
candidates and information brochure, because, they relate to the essential
qualifications for making application.
To put it otherwise, unless the Service Commission is satisfied about
the eligibility criteria based on the said certificates, it cannot entertain
the applications, and therefore, the applications in such an event are to be
necessarily rejected.
20.It is
true that the first respondent did not produce the Community Certificate before
the provisional list of selected candidates was finalized. On this score, in normal course, applying the
principles stated above, this Court would have held that the claim of the first
respondent for consideration under the reserved quota for Scheduled Tribe
should be rejected. But, we do not
propose to do so, for the simple reason, as we have elaborately narrated above
that the first respondent cannot be blamed for the belated issuance of
Community Certificate. As we have already stated, the request of the first
respondent for issuance of Community Certificate was pending before the Revenue
Divisional Officer for more than a decade. It is only in these special and
peculiar circumstances, we are inclined to sustain the order of the learned
single Judge."
46.In
our view, both the judgments relied on by the learned Senior counsel for the
respondent TNPSC are of no use. Those
cases are not related to violation of instructions as to the writing of
examinations, while the judgments cited by the learned Senior counsel for the
appellants are directly on the point.
47.
After reserving the orders, at the time of drafting the judgment, we noticed
that the candidates selected for Group-I Services of the Tamil Nadu Government
for the year 2000-2001 who are respondents and who have not chosen to appear
before the learned single Judge, no proper service has been effected and even
the substituted service ordered was carried out improperly in the sense, no
names of the respondents have been published, by the order dated 21.2.2010, we
have directed the learned counsel for the appellant to effect proper
substituted service. Accordingly, paper
publication has been effected in 'Indian Express' dated 23.2.2011, with the
names of all the party respondents.
Proof of service has been filed on behalf of the appellants. However, in spite of the same, the party
respondents neither appeared in person nor through the counsel.
48. Our
discussion would lead to the following conclusions:
i) The selection to the high brass Group-I services should
have been made in a transparent and unbiased manner by the TNPSC, without
giving scope or room for anybody to raise their little finger against such
selection.
ii) TNPSC should have rejected the answer scripts, which are
in violation of the instructions to the candidates and other criterion fixed by
the TNPSC itself.
Iii) What made the TNPSC to entertain and value even the
answer scripts which are in total violation of the conditions prescribed by the
TNPSC has not been explained by TNPSC,
which would drive us to arrive at one and only irresistible conclusion that
everything is not well with the selection, compelling our interference into the
same, to set right an illegality committed against genuine candidates.
iv) We are quite aware that by now most of the selected
candidates have put in a considerable length of service. But, that does not mean that an illegally and
improperly appointed candidates should be allowed to continue with their
services at the cost of the genuine candidates, that too when their such
illegal appointments were questioned from the beginning. Therefore, the
illegally appointed candidates cannot claim any equity. In fact, as has already
been pointed out by us supra, none of the selected candidates barring
respondent Nos.50, 52 and 57 have appeared before us, in spite of substituted
service. This does not mean that only
because they have not appeared before the court, we are setting aside the
selection of some of them. But, we are
constrained and compelled to set aside the selections of some of them, only
because they have indulged in malpractices and grossly violated the
instructions to the candidates, on which ground itself, their answer sheets
should have been thrown out of consideration by the TNPSC itself.
v) It has been established before us by the appellants that
had not the answer sheets of the candidates who have indulged in malpractices
and grossly violated the instructions to the candidates, were evaluated, these
appellants would have easily got through the selection procedure. This aspect has
not been denied on the part of the TNPSC also.
vi) Though the appellants have submitted before us the
calculation statements as to who many marks they should have been awarded, we
are not going into that aspect since it is for the expert body to consider.
However, we direct the TNPSC to consider their calculation statement also while
revaluating their answer sheets.
48.For
all the aforesaid reasons, the judgment of the learned single Judge is set
aside and barring the eight respondents namely, S.Visakan, C.Shyamaladevi,
R.Pandiarajan, K.Kingslin, K.Prabhakar, D.Padmavathi, M.Jayaraman and
K.Varadharajan (R-11, 31, 30, 33, 38, 44, 54 and 91 in W.A.No.1063 of 2009) the
selection and appointment of all the other 83 respondents are set aside for
having indulged in malpractices and for grossly violating the instructions to
the candidates, as has been pointed out by us supra. It has been established before us by the
appellants that had the answer sheets of the candidates who have indulged in
malpractices and indulged in gross violation of the instructions to the
candidates, were excluded, these appellants would have got through the
selection. Therefore, the Tamil Nadu Public Service Commission is directed to
revalue the answer sheets of only the candidates who have not indulged in
violation of any of the instructions and by excluding the candidates who
committed such gross violations and errors and prepare the merit list afresh
and go on with their appointment. But, since the appellants have not put in any
service, and taking into consideration the duties and responsibilities attached
to the posts to which they have to be appointed, we are not directing the
Government to grant them the seniority. This should be read only as that the
appellants should be appointed, according to their merit, after re-valuating
their answer sheets, but they should be placed below all the serving candidates
(of course, debarring the selection of illegally appointed candidates as is
directed in this judgment), as on date, in the respective cadres. The entire
process shall be completed within six weeks from the date of receipt of a copy
of this judgment, keeping in mind the observations made by us in this judgment.
The writ
appeals are allowed accordingly. No
costs. Consequently, connected miscellaneous petition is closed.
(E.D.R., J.)
(D.H.P., J.)
TK/Rao
Note to office:
Registry is directed to return all the original documents
viz.
Answer scripts to the learned standing counsel for TNPSC,
under proper acknowledgement.
To
The Secretary
Tamil Nadu Public Service Commission
Government Estate,
Chennai
Subscribe to:
Posts (Atom)