Hrnc vollege appintment mhc order

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Date: 22.08.2017

CORAM:

THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN

AND

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

W.A.(MD)No.247  of 2012 and

M.P(MD).No.1 of 2012

The Director,

Department of Archaeology,

Tamil Valarchi Valagam,

Halls Road, Egmore, Chennai 600 008 ..  Appellant/Petitioner

Vs.

1.K.P.A.Nallamohamed

2.The Secretary,

Tamil Nadu Public Service Commission,    Omanthoorar Government Estate,

Chennai 600 002 ..Respondents/Respondents.

PRAYER: Ψ the order dated 28.01.2011 passed by the learned Single Judge in W.P.(MD)No.13161 of 2009 on the file of this Court.

             For Appellant : Mr.T.S.Mohammed Mohideen   Special Government Pleader
             For R1 : Mr.K.K.Kannan
For R2 : Mr.K.K.Senthil

 

JUDGMENT

[Judgment of the Court was delivered by G.R.SWAMINATHAN, J.]

This Writ appeal is directed against the order dated 28.01.2011 made in W.P(MD).No.13161 of 2009 filed by the first

respondent herein.

  1. The Tamil Nadu Public Service Commission issued

notification for Direct Recruitment to the vacancies arising in the department of Archaeology for the posts of 1) Epigraphist, 2) Curator, 3) Archaeological Officer and 4) Junior Epigraphist, and only those professing Hindu Religion alone are eligible for the posts of Epigraphist, Archaeological Officer and Junior Epigraphist and there was no religious bar notified for the post of Curator, the first

respondent herein applied for the post of Curator.

3.According to the first respondent, since he was fully eligible for the post of Curator, he applied on 16.10.2009. Examination was scheduled to be held on 29.11.2009. The Tamil Nadu Public Service Commission sent a rejection letter on 25.11.2009 informing the first respondent that he could not be permitted to take part in the selection process since he was not professing Hindu religion. The rejection letter was received by the first respondent on 27.11.2009. In view of the holidays which followed, the first respondent could not challenge the rejection

order in time.

4.It is the contention of the first respondent that for the

post of Curator, there is no religious bar and therefore the rejection of his application was illegal and violative of his fundamental rights guaranteed under Article 16 of the Constitution of India. The first respondent therefore sought  the relief of declaration declaring that

the examination conducted by the Tamil Nadu Public Service Commission for the post of Curator on 29.11.2009 was

unconstitutional. He also sought conducting a fresh examination for the post of Curator by allowing him to participate. The interim application taken out by him was also in respect of the same post of Curator.

5.The stand of the Tamil Nadu Public Service Commission

was that the Writ petitioner made it appear that he had applied for all the posts and that is why he had given his preference for the post of Curator. That is why in the rejection order, the bar of religion

was set out.  The recruitment to the said posts are governed by

Statutory Rules.

6.Admittedly, there was no challenge to the said Statutory Rules. When the case was taken up for disposal, the learned Judge framed the issue as if whether an Indian Citizen professing Islam as religion can be disqualified for being considered for a post in public employment. The learned Judge ought to have seen that the writ petitioner himself made it very clear that he was interested for the post of Curator, for which there is no bar of religion. The only issue that was to be adjudicated by the learned Single Judge was whether the Writ petitioner possessed the eligibility qualification for the said

post of Curator. There was absolutely no need to venture into a discussion regarding discrimination on the ground of religion. There

has been an unnecessary reference to the recommendations of Justice Rajinder Sachar Committee, the Babri Masjid Judgment rendered by Allahabad High Court, interview given by the Scholar

Iravatham Mahadevan  in ‘ Frontline’  magazine etc.,

7.The Writ petitioner in his affidavit and in his Writ prayer

wanted appointment to the post of Curator in the department of Archaeology under the Tamil Nadu Government. The qualification for

the said post is as under.

“I) Second Class Degree of M.A. in Archaeology or in Tamil or in Sanskrit or in Ancient Indian History of any University or Institution Recognised by the University Grants Commission for the

purpose of its grant.

2)A Certificate or Diploma in Sanskrit awarded by any of

the Universities recognised by the University Grants Commission for the purpose of its grant or Bharathiya Vidhya Bhawan or Amara Bharathi or Sanskrit Educational Society or Dhakshina Bharat Hindu

Prachar Sabha or must be able to read and write Sanskrit texts (Printed and manuscripts) give meaning of simple  Sanskrit poems and prose writings and understand the main impart of inscriptional

Sanskrit.

And

       Must have the knowledge of basic principle of

Architecture, Iconography, Sculpture, etc., based on Vastu Sastra, Agama Sastra and Silpa text and also to identify parts of temples sculptures and icons from Drawing and

Photographs” .

  1. The Tamil Nadu Public Service Commission in their

counter affidavit pointed out that the writ petitioner could not be considered for the post of Curator since he lacked knowledge in Sanskrit. Admittedly, the Writ petitioner did not claim in his affidavit filed in support of the Writ petition that he was having knowledge in Sanskrit. In the Counter affidavit, it was stated that he lacked knowledge in Sanskrit.  The petitioner did not file any rejoinder contesting the stand of Tamil Nadu Public Service Commission that he was not qualified for the post of Curator. The Writ petition ought to have been disposed of on this short and simple ground. Instead, the learned Single Judge chose to extend the scope of controversy and condemned the appellant/ archaeological department. There

was absolutely no justification in imposing  costs on the department. This because the Tamil Nadu Public Service Commission as a recruiting agency is bound to issue recruitment notification in accordance with the extant  recruitment rules.  Therefore neither the appellant department nor the Tamil Nadu Public Service Commission can be faulted. It is a well settled practice recognised and followed in India as well as England that the Courts should not undertake to decide an issue unless it is a living one between the parties. If the issue is purely academic, it would be a waste of judicial time and it would not be a proper exercise of authority for

the Court to engage itself to decide it.

9.In the present case instead of focusing  on the Writ petitioner’s eligibility for being appointed as Curator in the Archaeological Department, the learned Single Judge chose enter into a broader discussion on the principles of secularism. Direction was given to consider the Writ petitioner for being appointed  to any one of the four posts which were notified. As already pointed out, the Writ  petitioner himself made it clear that he was not interested

in the other three posts.

10.The order dated 28.01.2011 made in W.P.No.13161 of 2009  is liable to be set aside in toto. Accordingly, this Writ Appeal is allowed. No costs. Consequently, connected Miscellaneous Petition is

closed.

[K.K.SASIDHARAN, J.] & [G.R.SWAMINATHAN, J.]

     22.08.2017

Index : Yes/No Internet : Yes/No msa

To

The Secretary,

Tamil Nadu Public Service Commission,

Omanthoorar Government Estate,

Chennai 600 002

K.K.SASIDHARAN,J. and G.R.SWAMINATHAN,J. msa

W.A.(MD)No.247  of 2012 and M.P(MD).No.1 of 2012

22.08.2017

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