Eviction from service married accommodation allotted to underage (ie., below 25 years) PBOR challenged at AFT Kochi

Leave a reply

Relevant AFT order is appended below :-



ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI

O.A.NO. 226 OF 2013

FRIDAY, THE 24TH DAY OF JANUARY, 2014/4TH MAGHA, 1935

CORAM:

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

 

Shrikant Tripathi, Member (J):

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 was

appealable 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

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