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2020 Supreme(Mad) 1136
IN THE HIGH COURT OF JUDICATURE AT MADRAS
A.P.SAHI, SENTHILKUMAR RAMAMOORTHY, JJ.
The Secretary, Department of School Education – Appellant
Versus
R.Vijayalakshmi etc. batch - Respondent
W.A.Nos.404 to 410, 412 and 413 of 2020
Decided on : 16-03-2020
Advocate Appeared:
For the Appellants : Mr.C.Munusamy, Spl. G.P. (Edn.)
For the Respondent: Mr.R.Shivakumaran for Mr.P.Sesubalan Raja, Mr.M.Purushothaman, Mr.P.Ganesan, Mr.G.Sankaran, Mr.M.Chinnasamy, Mr.P.Ebenezer Paul, adv
Headnote:
Constitution of India – Articles 14 and 16 – Batch of appeals arise out of two judgments, whereby the same learned Single Judge has identically pronounced judgments on similar lines calling upon the authorities to verify the medium of instruction and has directed that the technical qualification of the respondents/petitioners in the Higher Grade Examinations be considered based on their declaration and on the certificate verification done by the competent authorities at the time of the selection process for appointment on the post of Special Teachers – It has further been directed that the same can also be verified and scrutinized by the competent authorities with the Director of Government Examinations for the purpose of extending the benefit of horizontal reservation under the “Persons Studied in Tamil Medium –Held, Now coming to the impugned judgments, what we find is that the learned Single Judge has proceeded on the strength of a pragmatic approach and on the basis of assumption drawn in paragraphs 8 to 10 of the impugned judgment – In our opinion, hypothetical calculations without any facts or figures, and on mere presumptions that calling upon the candidates to obtain certificates would generate some corrupt practice, cannot be a ground to write off the rules, the law laid down in this regard and the arguments based on facts that were before the learned Single Judge – Court find this approach of the learned Single Judge to be non-judicious and pragmatism cannot take over legalism – Court should remember whatever is legal is just, but while doing justice, court cannot ignore the law particularly in service jurisprudence where it is governed by a set of Rules – As observed above, any deviation from the Rule would violate – In such circumstances, the approach of the learned Single Judge to carve out a pragmatic approach and then to issue directions on the ground that the authorities are bound to verify the same does not appear to be correct – Certification is an evidence of the fact that the concerned candidate has acquired the qualification in Tamil medium instruction and it is then only that a reservation can be claimed under the Act and the provisions aforesaid – we allow all the appeals – court allow all the appeals.
JUDGMENT :
These batch of appeals arise out of two judgments dated 12.03.2019 and 28.03.2019, whereby the same learned Single Judge has identically pronounced judgments on similar lines calling upon the authorities to verify the medium of instruction and has directed that the technical qualification of the respondents/petitioners in the Higher Grade Examinations be considered based on their declaration and on the certificate verification done by the competent authorities at the time of the selection process for appointment on the post of Special Teachers. It has further been directed that the same can also be verified and scrutinized by the competent authorities with the Director of Government Examinations for the purpose of extending the benefit of horizontal reservation under the “Persons Studied in Tamil Medium” (PSTM).
2. The challenge raised by the Government is that such benefit of horizontal reservation can be claimed only by evidencing the same through a certificate issued as per the relevant Rules and the terms and conditions of the advertisement for appointment on the post of Special Teachers (Sewing, Music, Drawing and Physical Education) in the School Education Department.
3. The challenge came to be raised only after the provisional select list had been declared and all the respondents/petitioners had undertaken the examinations under the advertisement governed by the relevant Rules without challenging any of the aforesaid provisions or conditions contained in the advertisement. A mandamus was, therefore, prayed for to direct the appellant to appoint the respondents/petitioners as Special Teachers in the respective subjects on the ground that they have received the entire education in Tamil medium and therefore, they are also entitled to the horizontal reservation of 20% quota fixed under the PSTM category. The select list was prayed to be redrawn accordingly.
4. The main contention raised by learned Special Government Pleader (Education) in all these appeals is to the effect that the notification/advertisement calling for Online applications categorically provided that persons claiming benefit under any of the reservations will have to compulsorily produce the relevant certificate at the time of Certificate Verification process. It is urged that without any such certificate evidencing that the concerned candidate had obtained instruction and education in Tamil medium, the benefit of 20% horizontal reservation under PSTM category would not be available. In short, in the absence of verification and evidence to support the same, the reservation could not have been claimed as a matter of right and failure to produce any such certificate would disentitle a candidate from claiming any benefit of weightage on that count.
5. It is the contention of learned Special Government Pleader that none of the respondents/petitioners were able to produce the relevant certificate at the time of certificate verification and any attempt made thereafter or any certificate obtained thereafter or any explanation being given in the absence of a certificate cannot be an excuse on the basis whereof a right of preference can be claimed and hence, the direction issued by the learned Single Judge is clearly impermissible, as no mandamus can be issued to the authorities unless there is an obligation in law to comply with any provision.
6. It is urged that the direction of the learned Single Judge is contrary to law viz., the provisions for horizontal reservation under PSTM category and directly contrary to the terms and conditions of the advertisement/notification, which has not even been discussed by the learned Single Judge.
7. The second argument of the learned counsel for the State is that a learned Single Judge at the Madurai Bench in W.P.(MD) No.23061 of 2018 had rejected the said argument and dismissed the writ petition on 04.12.2018, which
