M. Ramachandran Vs. 1.The Chairman, - Court Judgment

SooperKanoon Citationsooperkanoon.com/1167741
CourtChennai High Court
Decided OnAug-30-2013
JudgeN.PAUL VASANTHKUMAR
AppellantM. Ramachandran
Respondent1.The Chairman,
Excerpt:
before the madurai bench of madras high court dated:30. 8/2013 coram the hon'ble mr.justice n.paul vasanthkumar and the hon'ble mr.justice p.devadass w.a(md)no.850 of 2011 m.p(md)no.1 of 2011 m. ramachandran .. appellant vs 1. the chairman, tamil nadu public service commission, no.1, greams road, chennai - 600 006.2. the secretary, tamil nadu public service commission, no.1, greams road, chennai - 600 006. .. respondents writ appeal filed under clause 15 of the letters patent against the order dated 1.11.2010 passed in w.p.(md)no.1464 of 2009. !for appellant ... mr.p.pethu rajesh ^for respondents ... mr.s.p.maharajan :judgment (judgment of the court was made by n.paul vasanthakumar, j.) this writ appeal is preferred against the order made in w.p.(md)no.1875 of 2011 dated 12.8.2011.2. the appellant herein filed the writ petition to quash the order of the second respondent dated 3.1.2011, and for a direction to appoint the appellant in the appropriate service, based on the marks obtained by him in the combined subordinate services exam no.1-2007, pursuant to the advertisement no.115/2007 dated 30.6.2007.3. the brief facts necessary for disposal of the writ appeal are as follows: (a) appellant herein, pursuant to the advertisement no.115/2007 dated 30.6.2007 inviting applications for the combined subordinate services selection, submitted his application on 23.7.2007 with requisite details and enclosures. in the application he had stated about his previous employment in southern railways and icf, chennai, for the period between 13.3.2004 and 11.1.2007 in column no.24, and also made a declaration that no criminal or disciplinary proceedings were pending against him on the date of submission of the application form. (b) appellant appeared for the written examination on 17.11.2007 and he was called to appear for oral test on 20.3.2008 and he appeared for oral test. the results were published on 21.4.2008, but the results of the appellant was withheld. the appellant approached the tnpsc to state the reasons for withholding of his results, and he was informed that he had suppressed certain facts with regard to pendency of the appeal, challenging the removal order before the senior electrical engineer, designs, icf, chennai, and thereby he made a false declaration in the application form. (c) it is the contention of the appellant that the deputy chief personnel officer-ii, icf, chennai, sent a reply to the tnpsc and it was informed that no appeal was pending in respect of the disciplinary proceedings, before the icf and the appeal preferred was disposed of on 22.3.2007. (d) despite the said reply, show cause notice was issued to the appellant on 30.8.2010 seeking his explanation, for which the appellant submitted his reply and without considering the same, by memo dated 3.1.2011, the appellant was debarred for one year from appearing in anyone of the examination and selection conducted by tnpsc with effect from 2.12.2010, and also cancelled the provisional selection of the appellant for the post of combined subordinate services exam-i, 2007. (e) the said order was challenged in the writ petition and the learned single judge dismissed the writ petition on the ground that the appellant has not disclosed the disciplinary proceedings initiated against him by icf, and removal from service passed by the icf for unauthorised absence, and the order passed by the respondent tnpsc was upheld. (f) against the said order of the learned single judge, this writ appeal is filed contending that the appellant was required to state the previous employment in column no.24 of the application form, wherein the appellant has mentioned the period of apprenticeship training-je in southern railway for the period from 12.3.2004 to 11.2.2005, and apprentice training je, icf, chennai (temporary) from 12.2.2005 to 11.1.2007 and the application for recruitment having been issued only on 30.6.2007, the appellant was not in service on that date and his removal from service was not a disqualification for seeking any other job and the departmental appeal having been disposed of on 22.3.2007 itself, i.e., prior to the date of advertisement, there is no necessity to mention about the initiation of disciplinary proceeding and the final order passed.4. it is contended by the learned counsel for the appellant that there is no column in the application form to state 'whether any departmental proceeding was previously initiated or at any time initiated' and the only detail sought for is as to whether any departmental proceeding or criminal proceeding is pending. as no departmental proceeding was pending and there is no column to specify about the initiation of departmental proceeding, which was concluded in the application form, appellant was under the bona fide impression that the information furnished in column no.24 was sufficient. the learned counsel also heavily relied on the information brochure dated 30.1.2006, which was in force at the time of submitting the application and the enclosures to be annexed along with the application form. the learned counsel also relied on the judgment of the division bench of this court reported in (2007) 1 mlj820(dr.a. rajapandian v. state of tamil nadu) for the proposition that if there is any ambiguity in the application form or brochure, the candidate shall not be put to hardship.5. the contention of the respondent tnpsc is that the appellant having been removed from service for unauthorised absence as apprentice training je, the same should have been disclosed in the application form and not mentioning about the removal from icf is a suppression of fact.6. we have considered the rival submissions made by the learned counsel for the appellant as well as the learned counsel for the respondents and perused the brochure and cmr sheet filled up by the appellant and the removal order and the order passed in appeal.7. applications for the combined subordinate services exam-i, 2007, was called for through advertisement dated 30.6.2007. appellant submitted his application on 23.7.2007. the particulars of previous employment stated by the appellant in column no.24 are ".apprentice training je southern railway (temporary) from 12.3.2004 to 11.2.2005 and apprentice training je (temporary), icf, chennai, from 12.2.2005 to 11.1.2007. the appeal filed challenging the order of removal was rejected on 22.3.2007. further in the removal order dated 10.1.2007, it is clearly stated in paragraph 4 that removal from the services of icf with effect from 11.1.2007 shall not be a disqualification for future employment. thus, it is beyond doubt that the removal order passed against the appellant is not a disqualification for submitting application for appointment to the combined subordinate services exam-i, 2007, conducted by tnpsc.8. the application having been submitted on 23.7.2007, pursuant to the advertisement dated 30.6.2007, and the removal order as well as appeal order being passed prior to the said dates, and as on the date of submitting application i.e, 23.7.2007 there was no appeal pending, there is no suppression of any fact, much less suppression of any material fact on the part of the appellant.9. in the removal order dated 10.1.2007 passed by the icf it is clearly stated that the said order will not be a disqualification for future employment. hence the appellant, who was provisionally selected, is entitled to be appointed and the reason stated in the order of the respondent dated 3.1.2011 that the declaration given by the appellant in the application dated 23.7.2007 that no criminal or any disciplinary proceeding is initiated or pending against him, is correct declaration, and the removal order dated 10.1.2007 is not a disqualification.10. the second respondent has passed the order on the premise that the appellant was terminated from service on 11.1.2007. there is distinction between the punishment of 'termination' and 'removal' in the service parlance. it is well settled law that a person terminated from service is automatically disqualified for future employment, whereas a person removed from service will not be disqualified for future employment. in this case, icf, which passed the removal order on 10.1.2007 clearly stated its intention by stating that the said removal order is not a disqualification for the appellant to seek future employment. in such view of the matter the interpretation/decision arrived at by the second respondent on the premise that the appellant was terminated from service is contrary to records and the said order was passed on non-application of mind.11. the learned single judge, though appreciated the difference between the words 'removal' and 'termination', was not inclined to accept the case of the appellant for not disclosing the disciplinary action taken during the previous employment as there is no column to state as to whether any disciplinary proceeding was initiated during previous employment and the only particular to be stated by the appellant was as to whether any departmental proceeding was pending. there is no chance for the appellant to inform about the disciplinary proceeding initiated earlier, which had reached its finality, even before the date of calling for applications. hence we are of the view that the appellant has not suppressed any material fact and his provisional selection is bound to be accepted as valid selection.12. in the decision cited by the learned counsel for the appellant viz., (2007) 1 mlj820(dr.a. rajapandian v. state of tamil nadu), the division bench considered identical issue and in paragraph 20 held that if there was any confusion created on the minds of the candidate, the blame squarely lies on the tnpsc.13. considering the over all issue, particularly the fact about the removal order passed by icf, which itself states that the said order is not a disqualification, the writ appeal is allowed. the order of the learned single judge dated 12.8.2011 is set aside. the respondents are directed to appoint the appellant as per the provisional selection based on his marks, if he is otherwise qualified for being appointed in the post, in which he is eligible to be appointed. necessary order is directed to be passed by the second respondent within a period of four weeks from the date of receipt of copy of this order. no costs. connected miscellaneous petition is closed. vr 
Judgment:

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:

30. 8/2013 CORAM The Hon'ble Mr.Justice N.PAUL VASANTHKUMAR and The Hon'ble Mr.Justice P.DEVADASS W.A(MD)No.850 of 2011 M.P(MD)No.1 of 2011 M. Ramachandran .. Appellant Vs 1. The Chairman, Tamil Nadu Public Service Commission, No.1, Greams Road, Chennai - 600 006.

2. The Secretary, Tamil Nadu Public Service Commission, No.1, Greams Road, Chennai - 600 006. .. Respondents Writ Appeal filed under Clause 15 of the Letters Patent against the order dated 1.11.2010 passed in W.P.(MD)No.1464 of 2009. !For Appellant ... Mr.P.Pethu Rajesh ^For Respondents ... Mr.S.P.Maharajan :JUDGMENT

(Judgment of the Court was made by N.PAUL VASANTHAKUMAR, J.) This writ appeal is preferred against the order made in W.P.(MD)No.1875 of 2011 dated 12.8.2011.

2. The appellant herein filed the writ petition to quash the order of the second respondent dated 3.1.2011, and for a direction to appoint the appellant in the appropriate service, based on the marks obtained by him in the Combined Subordinate Services Exam No.1-2007, pursuant to the advertisement No.115/2007 dated 30.6.2007.

3. The brief facts necessary for disposal of the writ appeal are as follows: (a) Appellant herein, pursuant to the Advertisement No.115/2007 dated 30.6.2007 inviting applications for the Combined Subordinate Services selection, submitted his application on 23.7.2007 with requisite details and enclosures. In the application he had stated about his previous employment in Southern Railways and ICF, Chennai, for the period between 13.3.2004 and 11.1.2007 in Column No.24, and also made a declaration that no criminal or disciplinary proceedings were pending against him on the date of submission of the application form. (b) Appellant appeared for the written examination on 17.11.2007 and he was called to appear for oral test on 20.3.2008 and he appeared for oral test. The results were published on 21.4.2008, but the results of the appellant was withheld. The appellant approached the TNPSC to state the reasons for withholding of his results, and he was informed that he had suppressed certain facts with regard to pendency of the appeal, challenging the removal order before the Senior Electrical Engineer, Designs, ICF, Chennai, and thereby he made a false declaration in the application form. (c) It is the contention of the appellant that the Deputy Chief Personnel Officer-II, ICF, Chennai, sent a reply to the TNPSC and it was informed that no appeal was pending in respect of the disciplinary proceedings, before the ICF and the appeal preferred was disposed of on 22.3.2007. (d) Despite the said reply, show cause notice was issued to the appellant on 30.8.2010 seeking his explanation, for which the appellant submitted his reply and without considering the same, by memo dated 3.1.2011, the appellant was debarred for one year from appearing in anyone of the examination and selection conducted by TNPSC with effect from 2.12.2010, and also cancelled the provisional selection of the appellant for the post of Combined Subordinate Services Exam-I, 2007. (e) The said order was challenged in the writ petition and the learned single Judge dismissed the writ petition on the ground that the appellant has not disclosed the disciplinary proceedings initiated against him by ICF, and removal from service passed by the ICF for unauthorised absence, and the order passed by the respondent TNPSC was upheld. (f) Against the said order of the learned single Judge, this writ appeal is filed contending that the appellant was required to state the previous employment in Column No.24 of the application form, wherein the appellant has mentioned the period of Apprenticeship Training-JE in Southern Railway for the period from 12.3.2004 to 11.2.2005, and Apprentice Training JE, ICF, Chennai (Temporary) from 12.2.2005 to 11.1.2007 and the application for recruitment having been issued only on 30.6.2007, the appellant was not in service on that date and his removal from service was not a disqualification for seeking any other job and the departmental appeal having been disposed of on 22.3.2007 itself, i.e., prior to the date of advertisement, there is no necessity to mention about the initiation of disciplinary proceeding and the final order passed.

4. It is contended by the learned counsel for the appellant that there is no Column in the application form to state 'whether any departmental proceeding was previously initiated or at any time initiated' and the only detail sought for is as to whether any departmental proceeding or criminal proceeding is pending. As no departmental proceeding was pending and there is no column to specify about the initiation of departmental proceeding, which was concluded in the application form, appellant was under the bona fide impression that the information furnished in Column No.24 was sufficient. The learned counsel also heavily relied on the information brochure dated 30.1.2006, which was in force at the time of submitting the application and the enclosures to be annexed along with the application form. The learned counsel also relied on the judgment of the Division Bench of this Court reported in (2007) 1 MLJ820(Dr.A. Rajapandian v. State of Tamil Nadu) for the proposition that if there is any ambiguity in the application form or brochure, the candidate shall not be put to hardship.

5. The contention of the respondent TNPSC is that the appellant having been removed from service for unauthorised absence as Apprentice Training JE, the same should have been disclosed in the application form and not mentioning about the removal from ICF is a suppression of fact.

6. We have considered the rival submissions made by the learned counsel for the appellant as well as the learned counsel for the respondents and perused the brochure and CMR sheet filled up by the appellant and the removal order and the order passed in appeal.

7. Applications for the Combined Subordinate Services Exam-I, 2007, was called for through advertisement dated 30.6.2007. Appellant submitted his application on 23.7.2007. The particulars of previous employment stated by the appellant in Column No.24 are ".Apprentice Training JE Southern Railway (Temporary) from 12.3.2004 to 11.2.2005 and Apprentice Training JE (Temporary), ICF, Chennai, from 12.2.2005 to 11.1.2007. The appeal filed challenging the order of removal was rejected on 22.3.2007. Further in the removal order dated 10.1.2007, it is clearly stated in paragraph 4 that removal from the services of ICF with effect from 11.1.2007 shall not be a disqualification for future employment. Thus, it is beyond doubt that the removal order passed against the appellant is not a disqualification for submitting application for appointment to the Combined Subordinate Services Exam-I, 2007, conducted by TNPSC.

8. The application having been submitted on 23.7.2007, pursuant to the advertisement dated 30.6.2007, and the removal order as well as appeal order being passed prior to the said dates, and as on the date of submitting application i.e, 23.7.2007 there was no appeal pending, there is no suppression of any fact, much less suppression of any material fact on the part of the appellant.

9. In the removal order dated 10.1.2007 passed by the ICF it is clearly stated that the said order will not be a disqualification for future employment. Hence the appellant, who was provisionally selected, is entitled to be appointed and the reason stated in the order of the respondent dated 3.1.2011 that the declaration given by the appellant in the application dated 23.7.2007 that no criminal or any disciplinary proceeding is initiated or pending against him, is correct declaration, and the removal order dated 10.1.2007 is not a disqualification.

10. The second respondent has passed the order on the premise that the appellant was terminated from service on 11.1.2007. There is distinction between the punishment of 'termination' and 'removal' in the service parlance. It is well settled law that a person terminated from service is automatically disqualified for future employment, whereas a person removed from service will not be disqualified for future employment. In this case, ICF, which passed the removal order on 10.1.2007 clearly stated its intention by stating that the said removal order is not a disqualification for the appellant to seek future employment. In such view of the matter the interpretation/decision arrived at by the second respondent on the premise that the appellant was terminated from service is contrary to records and the said order was passed on non-application of mind.

11. The learned single Judge, though appreciated the difference between the words 'removal' and 'termination', was not inclined to accept the case of the appellant for not disclosing the disciplinary action taken during the previous employment as there is no Column to state as to whether any disciplinary proceeding was initiated during previous employment and the only particular to be stated by the appellant was as to whether any departmental proceeding was pending. There is no chance for the appellant to inform about the disciplinary proceeding initiated earlier, which had reached its finality, even before the date of calling for applications. Hence we are of the view that the appellant has not suppressed any material fact and his provisional selection is bound to be accepted as valid selection.

12. In the decision cited by the learned counsel for the appellant viz., (2007) 1 MLJ820(Dr.A. Rajapandian v. State of Tamil Nadu), the Division Bench considered identical issue and in paragraph 20 held that if there was any confusion created on the minds of the candidate, the blame squarely lies on the TNPSC.

13. Considering the over all issue, particularly the fact about the removal order passed by ICF, which itself states that the said order is not a disqualification, the writ appeal is allowed. The order of the learned single Judge dated 12.8.2011 is set aside. The respondents are directed to appoint the appellant as per the provisional selection based on his marks, if he is otherwise qualified for being appointed in the post, in which he is eligible to be appointed. Necessary order is directed to be passed by the second respondent within a period of four weeks from the date of receipt of copy of this order. No costs. Connected miscellaneous petition is closed. Vr