CHENNAI: A division bench of the Madras High Court on Friday ruled that a reserved candidate having secured lesser marks than other meritorious ones, cannot supersede them by getting into the general turn, for which procedure is not even contemplated either in rules or in the law.
Article 16 of Constitution cannot be invoked to justify the case of a less meritorious candidate being fitted into a general turn though others are in queue. Such a procedure is totally arbitrary to say the least.
Holding that the roster point system adopted by government in fixing seniority of government servants is nothing but an indirect way of providing reservation even beyond 69 per cent, a bench of Justices M M Sundresh and RMT Teekaa Raman declared Sections 1(2), 40 and 70 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 as ultra vires and unconstitutional.
The bench was passing final orders on a batch of writ petitions from engineers in State service praying, among other things, for a directive to authorities to prepare the seniority list for promotion only as per merit and marks obtained in the exams by the Tamil Nadu Public Service Commission, without following the rules of reservation.
The bench said a procedure, which is being followed contrary to rule, cannot be approved by the court, especially when it affects the rights of the citizen. Section 27(d) of the Act and Rule 22(b) merely provide for meritorious reserved candidates to adopt for reserved category when it confers better benefit. However, a reserved candidate, having secured lesser marks than other meritorious ones, cannot supersede them by getting into the general turn.
Thus, the contention raised that neither the rule nor the Act has been challenged cannot be countenanced because they do not provide for such a procedure.
In this case, the State has taken umbrage under Article 16 (4) of Constitution to get over the court dictum. However, the Constitution Bench of the Supreme Court had already held, which was taken note of by other decisions, that Article 16 (4) does not authorise such an action unless there is an express provision like the one introduced by way of 77th and 85th amendments to Article 16 (4A). As it is an express statement of law, the judges said they are constrained to hold that the State does not have the power, authority or cachet to introduce the impugned provisions tracing Article 16(1) and 16(4) as their source of power.