The State Of Tamil Nadu vs G. Hemalathaa

THE STATE OF TAMIL NADU & ORS. .... Appellant(s) Versus

G. HEMALATHAA & ANR. …. Respondent (s)

JUDGMENT

L. NAGESWARA RAO, J.

Leave granted.

1. The Respondent is an Advocate enrolled in the Bar

Council of Tamil Nadu. The Tamil Nadu Public Service

Commission (for short, ‘the Commission’) issued a

Notification dated 09.04.2018 inviting applications from

eligible candidates for filling up 320 vacancies to the posts

of Civil Judges in the Tamil Nadu State Judicial Service. The

Respondent was successful in the preliminary examination

conducted on 09.06.2018. The written test was conducted

on 11th and 12th August, 2018. Results of the written test

were announced on 19.09.2018 and the name of the

1 Respondent did not appear in the list of successful

candidates. Interviews were conducted from 27.09.2018

to 05.10.2018 and the final results of successful

candidates were published on 05.12.2018. The

Respondent came to know that another candidate

belonging to the same community to which she belongs

(Most Backward Class) was selected in spite of her

performance not being satisfactory. The Respondent made

a representation to the Commission to furnish her marks in

the written examination. On 07.01.2019, the Commission

conveyed to the Respondent that her Law Paper 1 written

examination was invalidated in view of violation of the

Instructions to Applicants (hereinafter referred to as ‘ the

Instructions’) issued by the Commission.

2. The Respondent filed a Writ Petition in the High Court

for a direction to declare her result and appoint her as a

Civil Judge, provided she has secured more marks than the

last selected candidate in the Most Backward Class

category. The High Court directed the Commission to

announce the results of the Respondent in Law Paper-1 of

the main written examination. If she was found qualified,

the Commission was directed to conduct the interview of

2 the Respondent as a special case. The Commission was

further directed to complete the exercise and announce

the final result of the Respondent within a period of four

weeks from the date of the judgment. Being dissatisfied

with the said judgment of the High Court, this appeal is

filed.

3. The Respondent contended before the High Court

that she did not violate any of the conditions stipulated by

the Commission. She complained that the Commission

wrongfully invalidated her Law Paper-1. The High Court

summoned the answer sheets and found that the

Respondent had underlined the answer sheet with pencil

at several places in Law Paper-1. The High Court was also

of the opinion that such marking was in clear violation of

Instruction 22 (1)(II) of the Instructions issued by the

Commission which prohibits candidates from using a pencil

for any purpose. Instruction 22 (1) (II) provides that:

“Penalty for violation of Commission’s instruction in the descriptive type examination. The answer books of the applicants will be invalidated / marks deducted / debarred for violations of any one or more of the instructions, besides initiating criminal action wherever necessary.

1) Invalidation 3 I. ...

II. Usage of whitener, sketch pens, pencil, colour pencils, multi-colour pens, Crayons or any other writing materials, for any purpose.”

4. When the Respondent was confronted by the High

Court by showing the answer sheet, she submitted that it

may have been done inadvertently and due to anxiety.

The Respondent pleaded for leniency and prayed that a

direction may be given to the Commission to declare her

as having been successful in the main examination. The

High Court accepted the submission of the Respondent

that the underlining of some portions of the answer sheet

in pencil was done unwittingly and inadvertently and that

she did not gain any advantage from such marking. Being

of the view that the Respondent cannot be disqualified for

a mistake committed inadvertently, the High Court allowed

the Writ Petition.

5. Mr. R. Venkatramani, learned Senior Counsel for the

Appellant submitted that the Instructions given to

candidates taking examinations for selection to the post of

Civil Judges clearly bars the candidates from using a pencil

in any manner. The Instructions given to the candidates

4 are mandatory and cannot be relaxed. Mr. Venkatramani

contended that the initial stand taken by the Respondent

that she did not use the pencil disentitles her from the

relief sought for. No lenient view can be taken in cases of

violation of the mandatory Instructions as the order in

favour of the Respondent will be treated as a precedent.

If the Respondent is given the relief sought for the other

candidates who have been disqualified will also claim the

same relief.

6. Ms. V. Mohana, learned Senior Counsel appearing for

the Respondent vehemently argued that we should not

exercise our discretion under Article 136 of the

Constitution of India. According to her, there is no

substantial question of law in the S.L.P. warranting our

interference. She submitted that an error was committed

by the Respondent which was rightly condoned by the High

Court. She made a fervent appeal to us that the career of

a meritorious backward class candidate should not be

nipped at the bud.

7. We have given our anxious consideration to the

submissions made by the learned Senior Counsel for the

Respondent. The Instructions issued by the Commission

5 are mandatory, having the force of law and they have to

be strictly complied with. Strict adherence to the terms

and conditions of the Instructions is of paramount

importance. The High Court in exercise of powers under

Article 226 of the Constitution cannot modify/relax the

Instructions issued by the Commission1.

8. The High Court after summoning and perusing the

answer sheet of the Respondent was convinced that there

was infraction of the Instructions. However, the High

Court granted the relief to the Respondent on a

sympathetic consideration on humanitarian ground. The

judgments cited by the learned Senior Counsel for the

Respondent in Taherakhatoon (D) By LRs v. Salambin

Mohammad2 and Chandra Singh and Others v. State

of Rajasthan and Another3 in support of her arguments

that we should not entertain this appeal in the absence of

any substantial questions of law are not applicable to the

facts of this case.

9. In spite of the finding that there was no adherence to

the Instructions, the High Court granted the relief, ignoring

the mandatory nature of the Instructions. It cannot be said 1 M. Vennila v. Tamil Nadu Public Service Commission, (2006) 3 Mad. LJ 376 2 (1999) 2 SCC 635 3 (2003) 6 SCC 545 6 that such exercise of discretion should be affirmed by us,

especially when such direction is in the teeth of the

Instructions which are binding on the candidates taking the

examinations.

10. In her persuasive appeal, Ms. Mohana sought to

persuade us to dismiss the appeal which would enable the

Respondent to compete in the selection to the post of Civil

Judge. It is a well-known adage that, hard cases make bad

law. In Umesh Chandra Shukla v. Union of India4,

Venkataramiah, J., held that:

“13…. exercise of such power of moderation is likely to create a feeling of distrust in the process of selection to public appointments which is intended to be fair and impartial. It may also result in the violation of the principle of equality and may lead to arbitrariness. The cases pointed out by the High Court are no doubt hard cases, but hard cases cannot be allowed to make bad law. In the circumstances, we lean in favour of a strict construction of the Rules and hold that the High Court had no such power under the Rules.

11. Roberts, CJ. in Caperton v. A.T. Massey5 held

that:

4

(1985) 3 SCC 721 5 556 U.S. 868 (2009) 7 “Extreme cases often test the bounds of established legal principles. There is a cost to yielding to the desire to correct the extreme case, rather than adhering to the legal principle. That cost has been demonstrated so often that it is captured in a legal aphorism:

“Hard cases make bad law.”

12. After giving a thoughtful consideration, we are afraid

that we cannot approve the judgment of the High Court as

any order in favour of the candidate who has violated the

mandatory Instructions would be laying down bad law. The

other submission made by Ms. Mohana that an order can

be passed by us under Article 142 of the Constitution

which shall not be treated as a precedent also does not

appeal to us.

13. In view of the aforementioned, the judgment of the

High Court is set aside and the appeal is allowed.

...............................J. [L. NAGESWARA RAO]

…...........................J. [HEMANT GUPTA] New Delhi, August 28, 2019

8