(Prayer: Writ Petitions are filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, to call for the records relating to the proceedings of the Tamil Nadu Public Service Commission, Chennai – 7, the first respondent herein made in Memo No.1031/PSD-H1/2018 dated 22.06.2019 issued to all the three petitioners herein quash the same in respect of the petitioners 1 to 3 herein and consequently direct the Respondents herein to appoint the petitioners herein as Assistant Horticulture Officer in the Tamil Nadu Horticultural Subordinate Service in the Horticulture Department with effect from the date on which his batch mates have been appointed through the present selection on 25.10.2018 in the order of their merit list prepared by the Tamil Nadu Public Service Commission with all the consequential fixation of pay from the date of fixation given to his batch mates with continuity of service and all other service and monetary benefits flow from it and pass orders.)

1. Heard the learned counsel for the petitioners, learned Standing Counsel for the first respondent and learned Special Government Pleader for the second respondent and perused the records.

2. Briefly stated the case of the petitioners is that the 1st respondent issued notification vide notification dated 25.05.2018 to fill up 757 posts of Assistant Horticulture Officer for the year 2016-2017 by way of direct recruitment; that the appointment to the aforesaid post is governed by Tamil Nadu Subordinate Service Rules under Horticulture Department; that the petitioners submitted online application on 04.06.2018; that they were permitted to take part in the written examination held on 11.08.2018; and that the results of the said written examination were published on 19.08.2018.

3. It is the further case of the petitioners that on being declared as successful in the written examination conducted by the first respondent, they were issued with call letter dated 03.10.2018 to attend for counseling and production of certificate; that on the petitioners attending counseling and certificate verification, a provisional selection list was announced on 23.10.2018 and an endorsement order was issued indicating of their provisional selection and informing that their provisional selection was withheld owing to the non-production of “No Objection Certificate” from the employer and called upon the petitioners to submit the same within seven days; that the petitioners submitted “No Objection Certificate” from the employer namely Assistant Director, Agriculture Department, Gingee, where they were employed through an outsourcing agency on a contract basis under specific project - Agricultural Technology Management Agency (ATMA); that while the petitioners were expecting to receive an appointment letter, they have been served with show cause notice dated 15.04.2019 alleging that the petitioners have not disclosed the fact of working in Agriculture Department as Assistant Technology Manager as temporary employees at the time of submitting online application; and that the said non-disclosure amounts to concealment as per Paragraph 20 of notification, attracting the disqualification, and called upon the petitioners to submit their explanation within 15 days from the date of receipt of the show cause notice in writing as to why their temporary selection should not be cancelled and also as to why the right to participate in the examination scheduled to be held for such selection of posts being conducted by the first respondent should not be permanently or for a period to be stipulated by the first respondent be suspended, failing which petitioners were informed that if they had no explanation to offer, further action would be taken.

4. Petitioners further contend that on being served with the aforesaid show cause notice, they have submitted their explanations within time on 24.04.2019 whereby they have stated that the job in which they were presently working as Assistant Technology Manager was not secured by them through employment office or by writing any examination but were selected through an interview conducted by the private agency and are working on daily wage contract basis; and that for the said reason, in the online application submitted by them, in response to the question –“ Are you a Government Employee”, they had answered as “No”, and in response to the question “Are you a temporary or discharged State Government employee because of reduction in establishment or for any other reason but not as disciplinary measure?”, they have answered as “No”, as their appointment was not a temporary appointment in terms of Section 17 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 (for short Act, 2016) being engaged on an outsourcing basis for a specific project i.e ATMA.

5. Petitioners further contend that, however, when they attended for counseling and production of certificates pursuant to the call letter dated 03.10.2018, they were informed that “No objection Certificate” has to be obtained from the concerned Department where they were working on a daily wage basis, indicating No objection to their leaving the aforesaid assignment in the event of getting selected to the post of Assistant Horticulture Officer, which they had obtained and furnished to the authorities in time.

6. It is the further case of the petitioners that the first respondent, without taking into consideration that their employment of daily wage basis cannot be considered as a temporary employment as per Act, 2016, as such employment cannot be regularized at a later point of time, or that their appointment is against the vacancy in the post bearing on the cadre of a service/clause/category and also without taking note of the fact that their employment is through a man power recruitment agency on a contract basis and project specific, however, has construed, them to be temporary employee of the Government and thus, they having made a wrong disclosure while submitting online application, by the impugned order cancelled, their provisional selection to the posts of Assistant Horticulture Officer notified under Notification dated 25.05.2018 for the period of 2016-17 and also debarred them from participating examination/selection conducted by the first respondent for a period of one year from 10.06.2019.

7. Petitioners further contended that the respondents either while issuing a show cause notice or passing the impugned order did not cause any verification with the authorities concerned as to whether their employment with the Agricultural Department is temporary appointment as covered by Section 17 of the Act, 2016 or otherwise.

8. Petitioners further contend that firstly, the question to which they were called upon to answer “Yes or No” itself is a vague querry, as the question covers three different matters and thus, the answer can be in both-ways; that on account of vagueness of the querry, the petitioners have answered the same as “No” which in the given circumstances, is the correct answer, as the petitioners are not in temporary employment of the State, which implies the same to be covered by Section 17 of the Act, 2016.

9. It is the further contention of the petitioners that the 'No Objection Certificate obtained' and furnished by them to the first respondent is as per the ususal/general format, but does not record as their employment being through outsourcing agency or period or project specific and thus, the respondents ought not to have considered such employment as a temporary State Government employment for cancelling the provisional selection of the petitioners.

10. Petitioners further contended that the respondents taking note of the vagueness of the querry in the online application, have made amendment to the said question in the subsequent recruitment, which goes to show that the respondents having accepted the vagueness of the querry cannot put the same against the petitioners while cancelling their provisional selection.

11. In support of the aforesaid submissions, reliance is placed on the judgment of the Hon’ble Apex Court in the case of Avtar Singh vs. Union of India and others in (2016) 8 SCC 471; and the decision of this Court in the following Judgments:-

                     (i) W.P.(MD).No.22464 of 2016, dated 11.01.2018

                     (ii) W.P.No.29183 of 2011 dated 28.03.2019

                     (iii) W.P.Nos.32817 and 32818 of 2017 dated 10.04.2019

                     (iv) W.P.No.25672 of 2023 dated 11.10.2023; and the decision of the Division Bench of this Court dated 26.09.2019 in W.A.No.3285 of 2018 filed against the order dated 20.12.2018 in W.P.No.29349 of 2018 in relation to the same said recruitment under the notification.

12. Contending as above, the petitioners seek for setting aside the impugned order by which their provisional selection was cancelled and also debarred for one year for taking any examination with consequential direction to the respondents to appoint the petitioners to the post of Assistant Horticulture Officer in the Horticulture Department under Tamil Nadu Subordinate Service Rules.

13. Counter affidavit on behalf of the first respondent is filed.

14. The first respondent, by the counter affidavit, while justifying the impugned proceedings as issued, contended that the petitioners have been working as Assistant Technical Managers in Agriculture Technical Employment Agency (ATMA); that while filing the online application, the petitioners did not disclose their temporary employment and answered the said question pertaining to the temporary employment in negative; that the candidates are required to furnish the true and correct particulars in the online application; that the information filled/furnished by them is true, is reinforced by the declaration given by them while submitting online applications, stating that if any information furnished is found to be wrong or incorrect, the application can be rejected; that there is no occasion for the first respondent to know about the correctness of the information furnished prior to certificate verification so as to reject the candidature of the candidate before being issued with hall ticket and being allowed to take part in the written examination.

15. The first respondent further contended that it is for the said reason, their selection is purely on a provisional basis, subject to the first respondent satisfying itself about the eligibility and suitability of the candidates for the recruitment, and by mere inclusion/selection provisionally does not confer any right on the petitioners, as the provisional selection is based on cut off marks in the written examination.

16. The first respondent, by the counter affidavit, contended that during the certificate verification, a routine question would be put to the candidates as to whether they are employed, because it may so happen that a candidate might have obtained temporary or permanent employment in Government Service after the notification but before being called for counselling and production of certificates.

17. The first respondent further contended that, likewise, in the instant case, on the petitioners being issued with call letter to appear for counseling and production of documents, the petitioners were put a question as to whether they were employed; that the petitioners in response had provided the details of their employment as Assistant Technical Manager in ATMA run by the Government Agriculture Department and claimed to be temporary Government employees and also produced 'No Objection Certificate' from the concerned authorities in the Agricultural Department.

18. The first respondent by the counter affidavit contended that since, the petitioners while filling up the application form to the query regarding temporary employment in State Government have answered as “No” while actually working as Assistant Technical Manager in ATMA, amounted to they making a wrong disclosure attracting disqualification in terms of Clause/Para 19 of the notification dealing with disqualification/debarment where under the candidates who had made wrong disclosure or resorted to suppression of material information results in candidature being rejected.

19. The first respondent further contended that since the 'No Objection Certificates' produced by the petitioners revealed that they were temporary government employees and no reason was assigned by the petitioners for not disclosing their temporary employment status in online application, they had rendered themselves liable to be disqualified/debarred as per the instruction No.19 (g) of the notification; and that the explanation submitted subsequent to the cancellation, stating that the aforesaid mistake committed by the computer operator, who submitted their online application cannot be a ground to accept their claim of the said omission/wrong disclosure is not intentional.

20. Contending as above, the first respondent seeks for dismissal of the writ petition.

21. No counter affidavit has been filed by the second respondent, however, when the writ petition is taken up for hearing, the learned Special Government Pleader appearing on behalf of the second respondent had placed before this Court written instructions under the signature of Administrative Officer, Office of Deputy Director of Horticulture, Villupuram furnished to her by the concerned authority, which is extracted hereunder:

                     “Agricultural Technology Management Agency (ATMA) is an Indian Government body for Agricultural technical activities at District Level.

                     One Assistant Technical Officer (Degree or Diploma in Agri Graduate) was recruited through out sourcing Agency and posted at block level Assistant Director of Agriculture Offices under the controller of Joint Director of Agriculture and the consolidated pay was given through Government of India scheme fund to the Assistant Technical Officer.”

22. I have taken note of the respective contentions as urged.

23. The mute question that arises for consideration in this writ petition is as to whether the answer of the petitioners to the query - “Are you a temporary or discharged State Government employee because of reduction in establishment or for any other reason but not as disciplinary measure?” as “No” can be considered as a wrong disclosure so as to attract disqualification as per Para 19 (b) (ii) (a) of the notification.

24. While, it is the case of the petitioners that though they are working as Assistant Technical Manager, the said employment being only on a daily wage basis, undertaken through outsourcing agency and also being project specific, cannot be considered as a temporary employment of the State Government, the first respondent, on the other hand contended that the said employment of the petitioners is to be considered as temporary employment of the State Government. The second respondent however by the instructions as furnished to the Court, only stated that the petitioners were recruited through out sourcing agency on a consolidated pay basis under the Government of India Scheme, without indicating as to whether the said appointment of the petitioners is temporary against the sanctioned post or is project specific which services are liable to be terminated on the completion of the project.

25. Further, as contended by the petitioners the first respondent, while issuing the impugned order did not cause any verification with the authority, who had issued “No Objection Certificate” to the petitioners, as to whether their employment is temporary/permanent or otherwise and on the other hand only proceeded on the basis of the language of the said “No objection certificate”.

26. As the first respondent is the recruitment agency of the State, it cannot be presumed that the terms used in the application form are based on colloquial understanding of such terms, but are only as per the provisions of Act, Rules and Regulations governing such recruitment. If one takes note of the term “temporary state government employee” as used in the application form, to which the petitioners were required to answer in “Yes” or “No”, the employment as mentioned therein is to construed only as per Section 17 of the Act which requires that the selection should be to a post borne on the cadre of service / clause / category and the appointment being made to the said post on account of any emergency or exigency; further, the appointment to such post borne out of the cadre of service in normal circumstances should be by way of a direct recruitment. Neither the first respondent nor the second respondent has indicated by their counter/written instructions as to whether the post of Assistant Horticulture Officer in the Agriculture Department in which the petitioners are working, is a sanctioned post for which normal selection is to be undertaken by direct recruitment and the petitioners being appointed on account of any emergency or exigency or continuing, for them to be considered as being temporary government employee.

27. Further, the written instructions of the second respondent, as placed before this Court, indicate that the employment of the petitioners is through outsourcing agency and thus, there is no direct relationship of employer-employee, except the fact that the petitioners are working under the control of Joint Director of Agriculture on a consolidated pay. It is also pertinent to note that the petitioners were appointed to a project run under the name of ATMA, which is an Indian Government body for Agricultural technical activities undertaken in coordination with the State Government, for which necessary funds are received from the Central Government being a centrally sponsored scheme. If only the said employment is considered as a temporary appointment there it is of the Central Government and not that of the State Government. Since, the query in the application is as to whether the applicant is a temporary State Government employee or not, as noted herein above, the project being a centrally sponsored project, the answer of the petitioners to the said querry as “No” would have to be considered as correct.

28. Secondly, the appointment of the petitioners being a project specific, they cannot be treated as in regular employment, as at any given point of time the said scheme can be closed. Thus, for the said reason also, the appointment of the petitioners as Assistant Technical Managers cannot be considered a temporary appointment in the Government, but is definitely temporary appointment as understood in common parlance. Since, the query in application form to which, the candidate like petitioners are required to indicate his answer in “Yes or No” being specific, and the petitioners having answered in negative, the said answer would have to be treated as correct.

29. Thirdly, it is to be noted that if only the petitioners’ appointment is a temporary appointment in the State Government, then the petitioners ought to have granted pay scale or extended the benefits that are available to temporary Government employee against the sanctioned post in the Government and not being recruited through outsourcing agency on a consolidated lumpsum pay. The fact that the petitioners are being paid consolidated pay and also not being extended with any benefits as available to the Government servants be it permanent or temporary, the first respondent cannot claim the petitioners are temporary State Government employees, merely on account of fact that their services are being utilized by a Government Department.

30. It is also to be noted that while the second respondent disowns the petitioners being considered as temporary government servants, the first respondent treats them as being temporary State Government employees so as to reject their candidature for being considered regular appointment of direct recruitment undertaken by them, thereby the petitioners being sandwiched between recruiting agency and Government Department, while one disowns, the other assumes them to be in temporary employment of the State, thereby leaving the candidate like the petitioners high and dry.

31. In recent times, the Government on account of various welfare schemes and programmes being implemented by them are recruiting people for implementation of the said schemes through agency instead of taking up regular employment on its own, so, that the wage bill of the State does not swell by providing of benefits extended to normal Government employees be it on permanent or temporary basis. Though, such kind of concept was more prevalent in a private sector which was termed as “hire and fire”, State over a period of time had adopted the said method of recruitment for its various projects and schemes which are either time bound or purpose oriented. The candidates who are recruited under such programmes and schemes are not granted any benefit and there is no security to their job. That being so, the said candidates cannot be treated as a temporary Government employee. Judicial notice can be taken of the fact that periodically, there have been demand for regularizing their services or the State resorting to the exploitation of work force by undertaking recruitment as private entities thereby moving away from the socialistic object. Notwithstanding such demand, the recruitment under what is termed as “outsourcing” continues.

32. Coming to the fact of the case, the petitioners working as Assistant Technical Managers, though under the control of Joint Director of Agriculture on a consolidated pay given through the Government of India Scheme, the petitioners cannot be considered as being a temporary State Government employee for them to have answered “Yes” to the query in the online application form. Since, the petitioners cannot be considered as being in temporary State Government service, the answer given by the petitioners to the query in the online application form as “No”, in the considered view of this Court is the correct answer and the first respondent without causing a detailed enquiry could not have rejected the candidature of the petitioners to the post of Assistant Horticulture Officer solely on the basis of the petitioners having produced 'No objection Certificate' from the employer goes to show that they are temporarily working in State Government and thus, the petitioners by answering as “No” have made a false declaration attracting the disqualification and debarment as per the notification issued.

33. The first respondent, while alleging the petitioners having resorted to suppression, failed to take note of the fact that the petitioners do not derive any benefit by suppressing the said fact. It is for the reason that there is no restriction imposed in the notification for a candidate who is in permanent or temporary State Government employment from applying to the post notified under the notification, and thus, even if they had mentioned “Yes or No” to the said query, the same would not make any differences. If only the petitioners intended to resort to suppression, they could not have informed the first respondent of they working as Assistant Technical Managers at the time of counseling and production of documents, for the respondents to know of their working. The very fact of a candidate answering “No” which even is found to be incorrect, the first respondent is required to see whether the said suppression has any material bearing on selection of the candidate.

34.The Hon’ble Supreme Court in the case of Avtar Singh v. Union of India and others (supra) dealing with “suppression” had held that - “the suppression of “material” information presupposes that what is suppressed that “matters” not every technical or trivial matter. The employer has to act on due consideration of Rules/instructions, if any, in exercise of powers in order to cancel candidature or for terminating the services of employee. Though a person who has suppressed the material information cannot claim unfettered right for appointment or continuity in service but he has a right not to be dealt with arbitrarily and exercise of power has to be in reasonable manner with objectivity having due regard to facts of cases.”

35. If the dicta of the Hon’ble Supreme Court as above is taken into consideration, as noted herein above, the first respondent answered to the query given by the petitioners as “No” cannot be held as petitioners suppressing the correct position and secondly, the response as “No” having a bearing on the selection process, as the petitioners were only working on outsourcing basis on a consolidated pay.

36. For the above reasons, this Court is of the view that the impugned proceedings as issued by the first respondent in rejecting the candidature of the petitioners to the post of Assistant Horticulture Officer and also debarring them for a period of one year from taking any examination or selection undertaken by the first respondent, cannot be sustained.

37. Accordingly, this Writ Petition is allowed. The impugned proceedings is set aside. The first respondent is directed to provide employment to the petitioners to the post of Assistant Horticulture Officer on the basis of the recruitment process undertaken pursuant to the notification dated 25.05.2018 for the year 2016-2017, grant seniority to the petitioners as per ranking secured by them in the examination.

38. It is made clear that the petitioners would not be entitled to any arrears of pay as the petitioners did not discharge duties in the post of Assistant Horticulture Officer by applying the principle of “no work no pay” and also taking note of the fact that the petitioners are continuing to work as Assistant Technical Managers.

39. Consequently, connected Miscellaneous Petitions are closed. No order as to costs.