K.Muthuswamy v. The Chairman, Tamil Nadu Public Service Commission, Omanthoorar Government Estate, Chennai – 600 002

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:07.10.2009CORAMTHE HONOURABLE MR.JUSTICE D.HARIPARANTHAMANW.P.No.9322 of 2007K.Muthuswamy ...petitioner Vs 1.The Chairman, Tamil Nadu Public Service Commission, Omanthoorar Government Estate, Chennai – 600 002.2.The Secretary, Tamil Nadu Public Service Commission, Omanthoorar Government Estate, Chennai – 600 002. ... Respondents PRAYER: This Writ Petition came to be numbered under Article 226 ofthe Constitution of India by way of transfer of O.A.No.505 of 2002from the file of Tamil Nadu Administrative Tribunal to call for therecords relating to 1)proceedings No.8750/PD-D2/97 dated 5.2.1999 of the Secretary,TNPSC (the second respondent herein)2)Proceedings No.2569/PD-D2/99, dated 1.7.2000 of the Chairman,T.N.P.S.C. , (the first respondent herein)3)Proceedings No.6433/PD-D2/2000, dated 29.3.2001 of the Chairman ,T.N.P.S.C., (the first respondent herein) and set aside the same witha direction to grant all attendant and consequential relief with allprerequisites.For Petitioner: Mr.R.Muthukannu For Respondents: Mr.M.Baskar for TNPSC.ORDERThe Original Application in O.A.No.505 of 2002 before the TamilNadu Administrative Tribunal is the present writ petition. https://hcservices.ecourts.gov.in/hcservices/

2.The petitioner entered the service of Tamil Nadu PublicService Commission, (in short "TNPSC") as Junior Assistant on29.06.1976. Subsequently, he was promoted as Assistant SectionOfficer on 08.01.1981 . He was further promoted as Section Officer on20.01.1997. He rendered 25 years of unblemished record of service,which is not disputed .3.The TNPSC is an agency, selecting the candidates for variousposts, for the state of Tamil Nadu. In this case, TNPSC conductedthe examination on the forenoon as well as afternoon of 13.12.1997and also on the forenoon of 14.12.1997, for recruitment ofAssistant Engineers (Rural Development). 4.The said examination was conducted in several centersthroughout Tamil Nadu. The respective District Collectors sponsoredthe names for appointment of Chief Invigilator and Invigilator, forthe conduct of the examination in each center.i.e., the ChiefInvigilator and the Invigilator of each center, where examinationswere conducted, were the employees of Tamil Nadu Government. TheStaff members from TNPSC were deputed to the examination centers, inconnection with the various items of work involved in the conduct ofthe examination.The petitioner and one Thiru D.Venkatesan, AssistantSection Officer were deputed from TNPSC, regarding the conduct ofexamination at the Municipal Higher Secondary School, Salem. Thestaff members deputed from TNPSC are to supervise the examinationsand they were trained in the conduct of the examinations.5. In the said Salem center, one Mr.A.Karunakaran, HeadAssistant in Collector Office, Salem was appointed as ChiefInvigilator and one Mr.Ramachandran, Junior Assistant, CollectorOffice, Salem was appointed as Invigilator. The Chief Invigilatorswere required to take delivery of question paper bundles from theSub-Treasuries. While taking delivery, they should see that theproper question paper bundles were taken by them. The staff membersof the TNPSC also should ensure that the Chief Invigilators tookproper question papers and those question papers were distributedto the candidates, who appeared for the examinations . 6.The question papers meant for 14.12.1997 were distributed tothe candidates, who appeared for the examination in the forenoonsession on 13.12.1997 . Realising the mistake, the question paperswere immediately collected back. Then, different question paperswere given to the candidates. This time also, the question paperswere meant for the afternoon session of 13.12.1997.7.In view of this said confusion, the entire examinationsthroughout the state of Tamil Nadu were cancelled. This resulted inplacing the petitioner under suspension, by an order dated15.12.1997. Later, a charge sheet dated 19.05.1998 under Rule 17 (b)of the Tamil Nadu Civil Services (Discipline and Appeal) Rules was https://hcservices.ecourts.gov.in/hcservices/ issued, making the following three allegations ."1.That the said Thiru K.Muthuswamy, SectionOfficer, office of the Tamil Nadu Public ServiceCommission, Chennai-600 002 while functioning asan offical deputed to carry out the various itemsof work involved in the conduct of the MainWritten Examination relating to the Post ofAssistant Engineer (Rural Development) in thePanchayat Unions slated for 13.12.97 F.N. & A.N.and 14.12.97 F.N. at the Municipal HigherSecondary School, Salem has failed to superviseand see effectively that the correct bundles ofquestion papers relating to the examinationscheduled for 13.12.97 F.N. had been promptlytaken delivery of without omission by the ChiefInvigilator at the time of delivery of questionpaper bundles at the Sub-Treasury , Salem.2.That during the month of December '97 andhaving been deputed to discharge the aforesaidduty at the said examination centre, the saidThiru K.Muthuswamy, Section Officer has not actedwith due care and alterness before thecommencement of the examination in the morningof 13.12.97 at a particular point of time ofopening of the bundles of question papers as aconsequence of which question papers takentherefrom at the first instance, were found meantfor the examination scheduled for the followingday i.e., 14.12.97 instead of for the 13.12.97F.N. and the question papers taken from anotherbundle at the second instance were found meantfor the examination, scheduled for the afternoonsession instead of for the forenoon session of13.12.97. Thereby he has miserably failed tosupervise effectively over the process of openingof bundles of question papers in the saidexamination centre on the morning of 13.12.97and he had thus violated the specific and strictinstructions issued to him in this regard inthis office Proceedings No.8230/ID-A/97, dated4.12.97.3.That during the said period and whilefunctioning as aforesaid the said ThiruK.Muthuswamy, Section Officer has miserablyfailed in the discharge of the official dutiesand responsibilities entrusted to him in thisaforesaid office proceedings his act of which hasplaced the Commission in an embarassing positionleading to cancellation of the entire examination https://hcservices.ecourts.gov.in/hcservices/ and conduct of the examination afresh, on theplea of several affected candidates causinghardship to candidates and a burden of additionalexpenditure to the Government therefor." 8.An enquiry was conducted. The Enquiry Officer found that thecharge Nos.1 & 2 were established and the charge No.3 was notestablished. The 2nd respondent, the Disciplinary Authority, passedan order dated 05.02.1999, based on the report of the EnquiryOfficer, and imposed the punishment of reversion from SectionOfficer to Assistant Section Officer for 10 years. After the expiryof the punishment of reversion, the petitioner would be restored tothe original post. After restoration, he would continue to draw thepay he was drawing before the reversion and the period of reverisonwould not count for further increments in the category of SectionOfficer. 9.The petitioner filed an appeal to the first respondent. Onreceipt of the appeal, the Appellate Authority felt that the findingsof the Disciplinary Authority against the third charge was notcorrect. 10.That is, the Appellant Authority, differed from the findingsof the disciplinary authority/enquiry authority . Hence, he recordeda differed view and sought explanation from the petitioner, on hisviews. After obtaining explanation, the Appellate Authorityrecorded the findings that all the three charges were established.11.Though the appellate authority held that all the 3 chargeswere proved, while the disciplinary authority held that only 2charges were proved, the appellate authority reduced the punishmentfrom reversion for 10 years to reversion for 5 years.12.In the meantime , the Chief Invigilator and the Invigilator,who were proceeded against for their lapses, were imposed with thepunishment of stoppage of increment for one year without cumulativeeffect, by the Collector salem, by an order dated 07.12.1999. Thiswas brought to the notice of the first respondent by way ofrevision.But the revision was rejected by the first respondent inthe order dated 29.03.2001.13.The petititioner, therefore, filed Original Application inO.A.No.505/2002 (W.P.No.9322/2007) to quash the order of the secondrespondent dated 05.02.1999, and the orders of the first respondentdated 01.07.2000 and 29.03.2001.14.Heard, Mr.Muthukannu, learned counsel for the petitioner andMr.M.Baskar, learned counsel for the respondents. https://hcservices.ecourts.gov.in/hcservices/

15.The only contention of the learned counsel for the petitioneris that when the Chief Invigilator and the Invigilator were imposedwith the minor punishment of stoppage of increment for one yearwithout cumulative effect, the respondents were not justified inimposing the different punishment on the petitioner. It is submittedthat the main duty relating to collection of the question papersfrom the Treasury and distribution to the candidates mainly restswith the Chief Invigilator. Since, the Chief Invigilator was imposedwith minor punishment, imposing major punishment to the petitioneris arbitrary, discriminatory and violative of Article 14 of theConstitution. The learned counsel for petitioner relies on thefollowing decisions for the said proposition .1.Man Singh Vs State of Haryana and Others reported in(2008) 8 MLJ 518 (SC).2.T.R.Venkatachary Vs The Special Officer, Corporation ofMadurai reported in 2002 Writ L.R. 449.3.M.Rajamanickam Vs The Executive Director, Bharat HeavyElectricals Ltd., reported in 1997 Writ L.R. 536.4.N.Nandagopolan Vs The Secretary to Government reported in2007 Writ L.R. 525.V.Arulkumar Vs Housing and Urban Development CorporationLtd., (HUDCO) reported in 2009 (3) CTC 388.16. When the first respondent passed the order dated01.07.2000, modifying the punishment of 10 years reversion to 5 yearsreversion, the petitioner did not bring to the notice of the firstrespondent about the order of the District Collector , Salem,imposing a minor punishment on the Chief Invigilator and theInvigilator. The petitioner was not aware of the minor punishmentbeing imposed by the District Collector. As soon as he came to knowthe imposition of minor penalty to the Chief Invigilator, thepetitioner filed a revision to the first respondent . The firstrespondent rejected the revision in the order dated 29.03.2001.While rejecting the revision petition, the first respondent held asfollows :"I have gone through the revision petitioncarefully. The Commission staff are deputed tovarious examination centres precisely to ensurethat the examinations are conducted in a smoothmanner and the revision petitioner has miserablyfailed to ensure that. It is not open to him toquote the punishment awarded to the ChiefInvigilator and seek redressal since he hasgreater responsibilities to ensure that the https://hcservices.ecourts.gov.in/hcservices/ examinations are held properly in every respect.I do not find any valid reasons to modify theorders already passed, which cannot be said to beexcessive considering the consequences of hislapses. I therefore reject the revision petitionas devoid of merits". 17.The first respondent held in categorical terms that thepetitioner bears greater responsibility than the Chief invigilator.In this regard the learned counsel for TNPSC submits that while theChief Invigilator and Invigilator, who are the employees of the TamilNadu Government, are not trained in conducting examinations, thepetitioner is trained in conducting the examination, being the staffof TNPSC. 18.It is further submitted that the the main job of TNPSC is toconduct periodical examinations for recruitment of various posts .Hence, the staff members of TNPSC are deputed to supervise theexaminations. The petitioner, being the Secion Officer, who rendered25 years of service, could not compare with Chief Invigilator, whois an employee of the Tamil Nadu Government and seek for modificationof punishment, based on the punishment imposed on the ChiefInvigilator. It is submitted that the TNPSC was put to embarassingposition, due to the gross negligence of the petitioner, and itinvolved in huge expenses for conducting the examinations for thesecond time. It is also submitted that the candidates were also putto a lot of difficulties, due to the inaction on the part of thepetitioner. The learned counsel for TNPSC strenously contends thatthe petitioner cannot make comparison with the Tamil Nadu Governmentemployees and the punishment given by Tamil Nadu Government couldnot be compared for the disciplinary action that was initiated by theCommission.19.I have considered the submissions made on either side. Ihave perused the judgments relied on by the learned counsel for thepetitioner. In all those cases, the disciplinary authority isone and the same. Further, in all those cases, the Courts heldthat when employees are placed in same and similar situations, theconcerned authorities shall not discriminate between one employee andanother. 20.In this case, the first respondent categorically held thatthe petitioner is not similarly situated like that of ChiefInvigilator. It is the categorical findings of the first respondentthat the petitioner has greater responsibility, in conducting theexaminations than the Chief Invigilator. In view of such categoricalfindings on fact by the first respondent, it cannot be said that theimpugned orders suffer due to the exercise of power in adiscriminatory manner. Hence, none of the judgements, apply to thefacts of the case. Hence, there is no infirmity in the order of the https://hcservices.ecourts.gov.in/hcservices/ first respondent, in refusing to compare the petitioner with theChief Invigilator. Hence the writ petition fails and accordinglythe same is dismissed.21. At this juncture, the learned counsel for the petitionersubmits that he may be given liberty to make mercy petition to thefirst respondent to persuade him to modify the punishment fromreversion, a major penalty to anyone of the minor penalties,without comparing with the Chief Invigilator and the Invigilator.22. Accordingly, liberty is given to the petitioner to make amercy petition to the first respondent and it is for the firstrespondent to consider the same and pass necessary order asexpeditiously as possible . With these directions, the writ petition is disposed of . Nocosts.Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrargvTo1.The Chairman, Tamil Nadu Public Service Commission, Omanthoorar Government Estate, Chennai – 600 002.2.The Secretary, Tamil Nadu Public Service Commission, Omanthoorar Government Estate, Chennai – 600 002.+ 1 CC to Mr.R.Muthukannu,Advocate,SR.52232+ 1 CC to Mr.M.Baskar,Advocate,SR.51516W.P.No.9322 of 2007KU(CO)EM/2.11.09