C.Stella Mary v. Tamilnadu Public Service Commission, Omanadhurar Government Estate, Annasalai, Chennai – 600 002 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 12.08.2009C O R A MTHE HONOURABLE Mr.JUSTICE S.NAGAMUTHUWrit Petition No.12610 of 2008and M.P.Nos. 1 to 3 of 2008---C.Stella Mary..Petitioner -Vs-1.Tamilnadu Public Service Commission,Omanadhurar Government Estate,Annasalai, Chennai – 600 002,Represented by its Secretary2.Deputy Secretary,Tamilnadu Public Service Commission,Omanadhurar Government Estate,Annasalai, Chennai – 600 002,..Respondents Petition filed under Artile 226 of the Constitution of Indiapraying for issuance of a Writ of Certiorarified Mandamus to callfor the records of the 2nd respondent made in his Order MemorandumNo.6764/RID/2007 dated 16.04.2008 and quash the same and consequentlydirect the respondents 1 and 2 to consider the case of the petitionerfor appointment to the post for the Combined Subordinate Service forwhich the petitioner took her CSSC – l (Group II ) Examination on17.11.2007 and atttended interview on 31.03.2008 under the DestituteWidow Category as per the Order of Merit.For petitioner ... Mr.S.Silambanan,Senior Counsel for Mr.N.UmapathiFor respondents ... Ms.C.N.G.Ezhilarasi (TNPSC)O R D E RThe petitioner is a Destitute Widow. Her husband died on28.09.2006. She has got a daughter aged 11 years old. The respondent https://hcservices.ecourts.gov.in/hcservices/ Tamilnadu Public Service Commission called for applications for theCombined Subordinate Service Examination-I (CSSC-I) Group II on30.06.2007 as per advertisement No.115. 2. The petitioner applied for the same under destitute widowcategory on 28.07.2007. But, while submitting her application,since, the petitioner did not readily have destitute widowcertificate obtained from the competent authority, she submitted aletter along with the application, intimating the respondent that shewould submit the destitute widow certificate as soon as she gets thesame from the competent authority. She had already applied fordestitute widow certificate. Her application was entertained by therespondent Commission and Registration Number was assigned to her.3. Subsequently, the petitioner obtained destitute widowcertificate dated 31.07.2007 on 02.08.2007 and immediately submitteda copy of the same to the respondent. Thereafter, she was allowed totake up the written examination held on 17.11.2007. The results weredeclared on 21.02.2008, wherein, it was declared that the petitionerhad passed the written examination and qualified for interview. On25.02.2008, the respondent Commission sent a letter to the petitionercalling upon her to send a copy of the hall ticket along with a copyof destitute widow certificate. The petitioner immediately compliedwith the same. Thereafter, by memo No.2736/OTD-B2/2007 dated05.03.2008, the respondent sent a call letter for interview to beheld on 31.03.2008. The petitioner was asked to produce all theoriginal certificates including destitute widow certificate.Accordingly, the petitioner appeared for the interview and producedall the certificates. On perusing the destitute widow certificate,the Officers of the respondent Commission were satisfied and theyretained the original destitute widow certificate with them foroffice purposes.4. The petitioner further claims that she was under theimpression that she would be considered under the destitute widowquota and selected. But, the respondent Commission sent a memorandumNo.6764/RID/2007 dated 16.04.2008 informing the petitioner that herclaim for consideration under the destitute widow category was notaccepted, since, the destitute widow certificate sent by her on24.10.2007 was received by the respondent after the last date forreceipt of the application. The said letter is challenged in thiswrit petition with a consequential prayer for a direction to therespondents 1 & 2 to consider the case of the petitioner forappointment to the post for the Combined Subordinate Service CSSC-I(Group II) under the destitute widow category as per the order ofmerit. https://hcservices.ecourts.gov.in/hcservices/

5. This court by an interim order dated 20.05.2008 directed therespondents to keep one post vacant and this court is now informedthat accordingly one post is kept vacant.6. In the counter filed by the respondents, it is stated that asper Rule 21(bb) of the Tamil Nadu State and Subordinate Rules, everycandidate claiming to be a 'Destitute Widow' shall produce acertificate from the Revenue Divisional Officer (RDO) or theAssistant Collector or the Sub Collector concerned. It is furtherstated that such a Certificate is insisted even in the OMRapplication. The Counter further proceeds to say that it isessential that the petitioner should have produced a copy of theDestitute Widow Certificate along with the application. Since thepetitioner did not enclose a copy of the Destitute Widow Certificatealong with her application and since, the same was received in therespondent office approximately after one month from the last date ofreceipt of applications, the said certificate cannot be accepted andshe cannot be considered under the said category. It is stated thatas per Column 25(12) of the OMR application, the candidates arerequired to submit attested Xerox copies of the documents with theapplication and since, the same has not been done, the impugnedorder came to be issued. Thus according to the respondents, there isno illegality in the impugned order requiring interference at thehands of this Court.7. The learned Senior Counsel appearing for the petitioner wouldsubmit that submission of the application in this case was made intime and the same was accepted and there is no clause anywhere in theInformation Brochure that delayed submission of copies of certaindocuments would not be entertained by the Commission. He wouldfurther submit that submission of copies of documents for aparticular claim is purely procedural and so it is immaterial whetherthe same was submitted along the application or subsequently. 8. But the learned counsel appearing for the respondents wouldstoutly oppose the writ petition. According to her, non-submissionof attested Xerox Copies of the certificates along with theapplication would amount to submission of incomplete application.She would rely on a Judgment of a Full Bench of Punjab & Haryana Highcourt in Rahul Prabhakar Vs. Punjab Technical University, Jalandharreported in AIR 1998 Punjab and Haryana 18. Relying on paragraphs 17and 18, the learned counsel would submit that since the copy of thedestitute widow certificate was produced beyond the cut-off date forsubmission of the application, the same cannot be accepted. Shewould further submit that submission of copies of relevant documentsis not merely procedural, but it is substantive. Therefore, sheprays for dismissal of the writ petition. https://hcservices.ecourts.gov.in/hcservices/

9. I have considered the rival submissions. 10. Indisputably, the petitioner is a destitute widow. Herhusband died few months before the submission of application to theTamil Nadu Public Service Commission. The further fact remains thatshe made an application for destitute widow certificate within areasonable time after the demise of her husband. After the submissionof application to the Tamil Nadu Public Service Commission, as soonas the certificate was received, she submitted a copy of the same.In the judgment relied on by the learned counsel for the respondents,it was not a point for consideration before the Full Bench as towhether non-submission of copies of the relevant documents along withthe application would dis-entitle the applicant to claim the benefitsarising out of the said certificate. That was a case where rejectionof application submitted beyond the cut-off date was examined. Afterhaving considered the terms and conditions in the InformationBrochure, the Full Bench held that submission of the applicationbeyond the cut-off date cannot be accepted and the rejection isvalid. The same view has been taken by this court also in severaljudgments. But the facts of the present case are distinguishable andpeculiar also. 11. Here, admittedly, the application was submitted in timealong with a covering letter requesting to permit the petitioner tosubmit the destitute widow certificate as soon as it is received fromthe competent authority. Simply because such certificate was notsubmitted along with the application, it would not be in the interestof justice to reject her claim. The object of creating reservationto Destitute Widow is only to help such widows to rescue them fromdestitution. On a technical ground, like the one which was taken inthe impugned order, if such a claim is rejected, I am sure, it willcertainly defeat the very object of such reservation. 12. The crucial factor to be considered in such a case, iswhether on the crucial date viz., on the date of making application,the candidate was a destitute widow or not. Production ofcertificate is only to prove the said fact. Whether it is producedalong with the application or some time later, is immaterial. Ifsuch a certificate is produced before the list of candidates isfinalised for interview, in my considered opinion, that would servethe purpose and would not prejudice the cause of the other candidates.13. Though no judgment on this issue, laying down the ratio wascited at the bar in support of the contentions of the petitioner, Icould find two such judgments of the Hon'ble Supreme Court. In thefirst one (Charles K. Skaria and others Vs. Dr.C.Mathew and othersreported in (1980) 2 Supreme Court Cases 752, the Hon'ble Supreme https://hcservices.ecourts.gov.in/hcservices/ Court had occasion to examine a similar question. That was a caserelating to awarding of 10% marks for possessing Diploma in relevantsubject for admission to post-graduate medicine course. According tothe prospectus, copies of diploma certificates should be producedalong with the application. But, three such diploma holders did notproduce copies of the certificates along with the application, but,they produced it later. But they were selected. The High Court setaside the selection on the ground that the Diploma certificates werenot produced along with the application. While setting aside theorder of the High Court, the Supreme Court held as follows:-20. There is nothing unreasonable orarbitrary in adding 10 marks for holders of adiploma. But to earn these extra 10 marks, thediploma must be obtained at least on or before thelast date for application, not later. Proof ofhaving obtained a diploma is different from thefactum of having got it. Has the candidate, infact, secured a diploma before the final date ofapplication for admission to the degree course?That is the primary question. It is prudent toproduce evidence of the diploma along with theapplication, but that is secondary. Relaxation ofthe date on the first is illegal, not so on thesecond. Academic excellence, through a diplomafor which extra mark is granted, cannot be denudedbecause proof is produced only later, yet beforethe date of actual selection. The emphasis is onthe diploma; the proof thereof subserves thefactum of possession of the diploma and is not anindependent factor. The prospectus does say :(4)(b) 10% to diploma holders in theselection of candidates to M.S., and M.D., coursesin the respective subjects or sub-specialities. 13. Certificates to be produced:- In allcases true copies of the following documents haveto be produced:-(K) Any other certificates required alongwith the application. This composite statement cannot be readformalistic fashion. Mode of proof is geared tothe goal of the qualification in question. It issubversive of sound interpretation and realisticdecoding of the prescription to telescope the twoand make both mandatory in point of time. What isessential is the possession of a diploma beforethe given date; what is ancillary is the safe modeof proof of the qualification. To confuse betweena fact and its proof is blurred perspicacity. Tomake mandatory the date of acquiring the https://hcservices.ecourts.gov.in/hcservices/ additional qualification before the last date forapplication makes sense. But if it is unshakeablyshown that the qualification has been acquiredbefore the relevant date, as is the case here, toinvalidate this merit factor because proof, thoughindubitable, was adduced a few days later butbefore the selection or in a manner not mentionedin the prospectus, but still above-board, is tomake procedure not the handmaid but the mistressand form not as subservient to substance but assuperior to the essence. ...............24. It is notorious that this formalistic,ritualistic, approach is unrealistic and isunwittingly traumatic, unjust and subversive ofthe purpose of the exercise. This way of viewingproblems dehumanises the administrative, judicialand even legislative processes in the widerperspective of law for man and nor man for law.Much of hardship and harassment in administrationflows from over-emphasis on the external ratherthan the essential. We think the government andthe selection committee rightly treated asdirectory (not mandatory) the mode of proving theholding of diplomas and as mandatory the actualpossession of the diploma. In actual life, weknow how exasperatingly dilatory it is go getcopies of degrees, decrees and deeds, not to speakof other authenticated documents like mark-listsfrom universities, why, even bail orders fromcourts and government orders from public offices.This frustrating delay was by-passed by the StateGovernment in the present case by two steps.Government informed the selection committee thateven if they got proof of marks only after thelast date for applications but before the date forselections they could be taken note of andsecondly the Registrars of the Universitiesinformed officially which of the candidates hadpassed in the diploma course. The selectioncommittee did not violate any mandatory rule noract arbitrarily by accepting and acting upon thesesteps. Had there been anything dubious, shady orunfair about the procedure or any mala fide movein the official exercises we would never havetolerated deviations. But a prospectus is notscripture and common sense is not inimical tointerpreting and applying the guide-lines therein.Once this position is plain the additional of https://hcservices.ecourts.gov.in/hcservices/ special marks was basic justice to proficiencymeasured by marks. "14. In the second one, (Dolly Chhanda Vs. Chairman, Jee andothers reported in (2005) 9 Supreme Court Cases 779), whileconsidering an identical question, after referring to CharlesK.Skaria's case, the Hon'ble Supreme Court held as follows:-9. The appellant undoubtedly belonged toreserved MI category. She comes from a veryhumble background, her father was only a Naik inthe armed forces. He may not have noticed themistake which had been committed by the ZillaSainik Board while issuing the first certificatedated 29.06.2003. But it does not mean that theappellant should be denied her due when sheproduced a correct certificate at the stage ofsecond counselling. Those who secured rank lowerthan the appellant have already been admitted.The view taken by the authorities in denyingadmission to the appellant is unjust and illegal."15. Applying the ratio laid down in the above judgments to thefacts of the case, one can be sure that it is not appropriate for therespondent to stick on to a technicality which is not only merelyprocedural but it defeats the very object sought to be achieved. Asheld by the Hon'ble Supreme court, what is crucial is as to whetheras on the last date for submission of application the petitioner wasa destitute widow or not. Yes, is the incontrovertible answer to thesaid question. 16. Admittedly, long before the written examination, thepetitioner submitted a copy of the destitute widow certificate.Therefore, having regard to the very object of reservation made fordestitute widows, and having regard to the ratio laid down by theHon'ble Supreme Court, in my considered opinion, in the case on hand,the reason stated in the impugned order for rejecting the claim ofthe petitioner for being considered under the reserved quota fordistitute widows is not at all sustainable and therefore, the same isliable to be quashed. 17. In view of the above, the writ petition is allowed, theimpugned order is set aside and the respondents are directed toconsider the petitioner's claim under the destitute widow quota andissue further orders strictly in accordance with law. In any event,the said exercise shall be completed within four weeks from the dateof receipt of a copy of this order. The petitioner is at liberty tosubmit a copy of this order to the Tamil Nadu Public Service https://hcservices.ecourts.gov.in/hcservices/ Commission directly. No costs. Consequently, connected M.P.Nos.1 to3 are closed. Sd/- Asst. Registrar /True Copy/ Sub Asst.Registrar nvsriTo 1.The Secretary,Tamilnadu Public Service Commission, Omanadhurar Government Estate, Annasalai, Chennai – 600 002.2.The Deputy Secretary, Tamilnadu Public Service Commission, Omanadhurar Government Estate, Annasalai, Chennai – 600 002.+ 1 cc to Mr.S.Silambanan, Associates Advocate SR 38550W.P.No.12610 of 2008LA (CO)RH (15.9.09)