- (1.)These two appeals arise out of a common judgment in two writ petitions that came to be filed by the appellants/petitioners claiming that since they have received their degrees while pursuing their educational career in Tamil medium, they were entitled to be given the benefit of appointment under 20% PSTM (Persons Studied in Tamil Medium) category, for which 20% posts in all public services are kept apart. They also contend that they were very much qualified and were eligible on merit, being possessed of the educational qualifications prescribed for the post in question, which was being unjustifiably denied by the respondents, hence, the said rights deserved to be enforced, but the learned Single Judge dismissed the writ petitions ignoring this mandate of law that requires offering of posts to the appellants under the 20% PSTM category.
(2.)The challenge raised was noted by us in our order dated 5.6.2020. Subsequently, the arguments were advanced on 18.8.2020, when the following order was passed:
"We have heard Mrs.Nalini Chidambaram, learned Senior Counsel for the appellants.

2. These appeals came to be instituted questioning the correctness of the judgment dated 25.02.2020 and came up before us on 05.06.2020, when the following order was passed:

"Heard Mrs.Nalini Chidambaram, learned Senior Counsel for the appellants as well as Mr.R.Udayakumar, learned Additional Government Pleader for the first respondent.

2. The contention raised by the learned Senior Counsel for the appellants is that Clauses (10) and (12) of the Notification No.12/2018, dated 4.7.2018 read with the educational qualifications prescribed in Clause 6(B) of the said notification, makes it clear that the second respondent has issued the notification while applying G.O. (Ms.) No.145, Personnel and Administrative Reforms (S) Department, dated 30.9.2010 and G.O. (Ms.) No.40, Personnel and Administrative Reforms (S) Department, dated 30.4.2014.

3. The dispute at hand is with regard to the post of Forest Apprentice, the minimum qualifications whereof are prescribed in Clause 6(B) of the Notification. The second column in the said clause enumerates the educational qualifications in sub- clause (a) as "must possess a Bachelor's degree in Forestry or its equivalent degree of any institution or University recognized by UGC." The alternative qualification after the word "OR" in sub-clause (b) entails Bachelor's Degree or its equivalent in any of the 15 subjects enumerated therein. Some of the appellants possess Bachelor's Degree in Botany or Chemistry or Physics and others possess the qualification of B.E. (Civil Engineering), and all of them obtained their qualifications through Tamil medium. It is on the strength of this that the appellants claim that they are entitled to 20% reservation under the Persons Studied in Tamil Medium (PSTM) category, which is reserved for all vacancies, including the present recruitment.

4. The contention of the learned Senior Counsel for the appellants is that the qualification possessed by the appellants being an alternative qualification prescribed, they are not ineligible, but their eligibility is being excluded on the ground of absolute preference being given to candidates who possess a Bachelor's Degree in Forestry, which is the first qualification and which course is nowhere instructed in the vernacular language of Tamil. It is, therefore, her contention that the appellants being fully qualified under the alternative qualification, cannot be denied the benefit of reservation of 20% under the PSTM category on the ground of being excluded by way of absolute preference to those candidates who possess Bachelor's Degree in Forestry. Admittedly, the appellants do not possess that degree, but on the strength of the qualifications possessed by them, it is the contention that the rule of reservation of 20% cannot be avoided to the total exclusion of such candidates who possess the qualifications otherwise and the 20% rule should also be applied to the vacancies which are sought to be exclusively offered to the possessors of Bachelor's Degree in Forestry.

5. Learned Senior Counsel contends that such a prescription which is contained in Column (3) of Clause 6(B) read with the second paragraph of Clause (10) was assailed before the learned Single Judge as being ultra vires the provisions of the reservation and the same should have either been struck down or read harmoniously so as to extend the benefit of 20% reservation to the appellants under the PSTM category.

6. The learned Single Judge has dismissed the writ petitions recording that in view of the said provisions contained in the notification and the stand taken in the counter affidavit, the reservation under the PSTM category will apply only when candidates are considered under category (b), which is not the situation in the present case.

7. Learned Senior Counsel submits that there was no reason to assume the same and from a copy of the counter affidavit filed on behalf of the respondent/Public Service Commission before the learned Single Judge, in paragraph 6 thereof, the assertion is that no candidate was available in the ranking list who had studied B.Sc. Forestry under Tamil Medium, as B.Sc. Forestry is being taught in English medium only.

8. The counter affidavit should have further clarified as to the challenge raised to the applicability of 20% reservation and the counter affidavit filed on behalf of the State does not respond to the same. In such a situation, let the State file a response to the aforesaid issue having been advanced on behalf of the appellants by the date fixed.

9. Learned counsel for the respondent/Public Service Commission may also be served a copy of the papers, who may also file a response to the same.

List on 27.7.2020."

3. The matter was directed to come up showing the names of learned counsel for the Tamil Nadu Public Service Commission as well as learned Government Pleader for the Forest Department. Today, we have heard them also.

4. The principal argument advanced is that once a law relating to preferential reservation is in place securing seats in respect of the selection relating to the post of Forest Apprentice, viz., the reservation for those who have pursued their educational carrier in Tamil Medium, then the reservation extended by a statutory provision on preferential basis to such candidates is compulsory and cannot be obviated in the manner in which it has been done in the selections, which have been held pursuant to the Notification No.12 of 2018.

5. The ground raised is that a statutory mandate which has taken the shape of Act No.40 of 2010 cannot be nullified by modifying the same either through any subordinate rules or even by a notification issued by the Tamil Nadu Public Service Commission, which has to comply with the said provisions. It is submitted that under the notification dated 04.07.2018, particularly, clause 12(B), there is a specific recital that 20% reservation of vacancies on preferential allotment to PSTM candidates will apply for the said recruitment and hence any deviation therefrom would be impermissible in law by giving an absolute preference to the applicants possessed with Degree qualification. It is urged that this runs counter to the provisions of Act No.40 of 2010 and even the own declaration of the Tamil Nadu Public Service Commission by carving out an exception in favour of those candidates possessing a Bachelor Degree in Forestry.

6. The Tamil Nadu Public Service Commission and the Forest Department appear to have been taking a stand that there is no Degree of Forestry being awarded to students taught in Tamil, as no such course in Tamil Nadu is in vogue. They, however, contend that the Bachelor Degree in Forestry is the main qualification prescribed for the post of Forest Apprentice and therefore, to exclude it for 20% of the seats in favour of those possessing an alternative qualification in the PSTM category would be virtually excluding the candidates possessing Bachelor Degree in Forestry from consideration against the 20% seats. This according to them may not be permissible, whereas on the other hand, learned Senior Counsel for the appellants contends that any prescription made in the advertisement or notification issued has to be read harmoniously or if it offends, the same can be struck down in order to ensure that 20% of the seats are made available to those candidates having pursued their studies in Tamil Medium.

7. The matter could have proceeded with the entire material, which is placed before us including the provisions that have been pointed out, particularly, clause 10 of the selection procedure, where the Degree qualified candidates have been given an absolute preference, but we find that this contest between the appellants and the State before the learned Single Judge proceeded on the basis of a very peculiar counter-affidavit filed by the Personnel and Administrative Reforms Department, which pleaded that it should be deleted from the array of parties and should be absolved of the responsibility of taking a stand in the light of the submissions that have been raised and more particularly that the said Department was unnecessarily impleaded in the proceedings.

8. We further find that the State of Tamil Nadu, through the Secretary to Government, Forest Department was impleaded as second respondent in W.P.No.28182 of 2019, but no counter-affidavit was filed on behalf of the said Department in the proceedings before the learned Single Judge. A counter-affidavit was filed on behalf of the Tamil Nadu Public Service Commission defending the advertisement and also the preference in favour of the candidates possessed with Degree qualification in Forestry.

9. The learned Single Judge, in the absence of any effective counter-affidavit on behalf of the State, as is evident from the circumstances narrated above, proceeded to hold that since a specialized knowledge in Forestry appears to be evident from the advertisement and since there is no such Degree being provided in the Tamil language, therefore, the notification has to be interpreted on the basis of the plain language used therein and consequently, dismissed the writ petitions. The learned Single Judge further held that the candidates possessed of an alternative qualification do have or may have other avenues of employment, but the candidates possessed of a specific Degree qualification in Forestry have only the present avenue available and hence, to exclude 20% of the seats entirely from being available to such candidates will not be appropriate.

10. The said findings have been assailed questioning the judgment of the learned Single Judge on the grounds referred to above and also contending that there cannot be an "absolute preference" in favour of such Degree qualified candidates so as to exclude or make redundant the provision of 20% reservation of the seats available in respect of the selection in question.

11. It has been pointed out by learned counsel for the respondent Tamil Nadu Public Service Commission that the selections have already been held and appointments have already been made pursuant to the said selections.

12. The question of considering the impact of these consequences may arise after we are apprised of the stand to be taken by the State Government in order to explain the status of the rules visa-vis Act 40 of 2010 in the light of the arguments that had been advanced on behalf of the appellants.

13. In this background, we find it necessary that learned counsel for the Forest Department may be granted time to file a counteraffidavit to answer the aforesaid propositions.

14. Let a counter-affidavit be filed by respondent No.2 in W.A.No.403 of 2020 within a period of two weeks, as the same respondent is required to answer the contentions raised in both the appeals. A copy of the counter-affidavit shall also be served on learned counsel appearing in W.A.No.402 of 2020 as well.

List on 07.09.2020."

(3.)Smt. Nalini Chidambaram, learned Senior Counsel, urges that the respondents are bound by their own terms of advertisement, where they have clearly professed to apply the provision of 20% benefit as extended by a State Act viz., The Tamil Nadu Appointment on Preferential Basis in the Services under the State of Persons Studied in Tamil Medium Act, 2010 (for brevity, "Act 40 of 2010"). For this, she has invited the attention of the Court to Notification No.12 of 2018, dated 4.7.2018, published by the Tamil Nadu Public Service Commission for appointment to the post of Forest Apprentice against 148 regular vacancies and 10 Scheduled Caste shortfall vacancies. All the appellants are applicants under the said notification against the 148 vacancies and she contends that under Clause 12(B), the advertisement categorically professes to apply 20% "reservation" of vacancies to be filled up on preferential allotment to the PSTM candidates. Clause 12(B) of the advertisement is extracted herein under:
"12.GENERAL INFORMATION

A. ....

B. In G.O.(Ms) No.145, Personnel and Administrative Reforms (S) Department, dated 30.09.2010, and G.O.(Ms) No.40, Personnel and Administrative Reforms (S) Department, dated 30.04.2014 the Government have issued orders to fill up 20% of all vacancies in direct recruitment on preferential basis to persons who studied the prescribed qualification in Tamil Medium. The 20% reservation of vacancies on preferential allotment to Persons Studied in Tamil Medium (PSTM) will apply for this recruitment (Applicants claiming this reservation should have studied the prescribed qualification for the post in Tamil Medium and should have the certificate for the same. Having written the examinations in Tamil language alone will not qualify for claiming this reservation). If the applicants with PSTM Certificate are not available for selection for appointment against reserved turn, such turn shall be filled up by eligible Non-PSTM applicants but belonging to the respective communal category. The PSTM certificate shall be produced / uploaded by the applicant in the prescribed format / proforma available in the Commission's website at 'www.tnpsc.gov.in' which shall be obtained from the Head of the Institution."