ORDER As aspirant to a post in government servant is alleged to be a member of a Communal Organisation. Whether membership by itself is a disqualification for being considered to a post, by virtue of Rule 14(A) of the Tamil Nadu Government Servant's Conduct Rules, 19 73, is the moot question for consideration. 2. It is not in dispute that, subject to the exceptions, stated in sub-rule (2) of the rules, the conduct rules shall apply to all government servants, namely to every person appointed to Civil Services and posts in connection with the affairs of the State of Tamil Nadu whether permanent or temporary and whether on duty, leave or on foreign service. 3. It is the case of the petitioner that on 3.2.2008, the first respondent published a notification for recruitment to the post of Grade-II, Jail Warder (Men). The petitioner applied for the said post. He passed the written examination and was qualified in the physical- fitness examination. By letter dated 13.7.2008 of the Sub Inspector of Police, Ethamozhi Police Station, the petitioner was informed that he has been selected for the post of Grade II- Jail Warder and was directed to produce all the certificates for verification 3 on 14.7.2008. Subsequently, he was directed to appear for medical examination at Tirunelveli Medical College, High Ground, Tirunelveli on 8.8.2008 and was declared medically fit. Provisional selection list was published by the first respondent and the name of the petitioner with Reg, No. 3000749 was included. Though the second respondent sent appointment letters to all the selected candidates to attend training for the notified post on 29.10.2008, appointment order to the petitioner has been withheld. In this regard, on 28.10.2008, the petitioner approached the second respondent and sought for suitable appointment order. A reply was given to him that since he was associated with a communal organisation, order of appointment has been withheld. In these circumstances, the petitioner has come forward with the present writ petition for the relief as stated supra. 4. The Director General of Police, Prisons in his counter affidavit has submitted that the name of the petitioner was included in the provisional list for the post of Grade II Jail Warden in Prison Department by the Chairman of Tamil Nadu Uniformed Services Recruitment Board, Chennai. 4. The Director General of Police, Prisons in his counter affidavit has submitted that the name of the petitioner was included in the provisional list for the post of Grade II Jail Warden in Prison Department by the Chairman of Tamil Nadu Uniformed Services Recruitment Board, Chennai. The first respondent after shortlisting the candidates by conducting written test, physical measurement test and physical efficiency test, the candidates provisionally selected were subjected to police verification and medical examination. Accordingly, the petitioner was referred to Tirunelveli Medical College Hospital, Tirunelveli for medical examination and was found fit on 8.8.2008 by the Medical Board. It is further submitted, that the Director General of Police, Prisons, Madras has given instructions to the Commissioners of Police of all cities, Superintendents of Police of all Districts vide memo No. 123804/Rect 11(2)/08-1, dated 24.6.2008 to verify the character and antecedents of all the candidates. Accordingly, the superintendent of Police, Kanyakumari District verified and forwarded the verification report to the second respondent. The Inspector of Police, District Special Branch, Nagercoil has stated that the petitioner is a TMMK Branch Secretary of Vadakku Soorankudy and is an agent of "Vidiyal Velli" magazine. It is also stated that he was involved in a case in Petition No. 182 of 2008 on the file of the Eathamozhi Police Station. The Inspector General of Police, Intelligence (SBCID), Chennai-4 has also informed the above fact. The respondents have further submitted with regard to the petition No. 182 of 2008 in Ethamoshi Police Station, a detailed report was called for and the Sub Inspector of Police, who enquired into the matter, informed that in. view of the absence of the petitioner and without proper witnesses, the charge made in the petition was not proved. 5. Referring to Rule 14-A of the Tamil Nadu Government Servants Conduct Rules 1973, the Director General of Police, Prisons, Government of Tamil Nadu has submitted that since the petitioner, is a member and branch secretary of TMMK Vadakku Soorankudy, a communal organisation, he is not eligible for appointment to the post of Grade-II Jail Warden in Prison Department. For the aforesaid reasons, he prayed for dismissal of the writ petition. 6. Placing reliance on the decision of the Supreme Court in AIR 1983 SC 374 : (1983) 2 SCC 145 : 1983-I-LLJ-299 and a judgment of this Court in W.P. (MD) No. 8537 of 2007, dated 31.1.2008, Mr. For the aforesaid reasons, he prayed for dismissal of the writ petition. 6. Placing reliance on the decision of the Supreme Court in AIR 1983 SC 374 : (1983) 2 SCC 145 : 1983-I-LLJ-299 and a judgment of this Court in W.P. (MD) No. 8537 of 2007, dated 31.1.2008, Mr. T. Lajapathy Roy, learned counsel for the petitioner submitted that being a member of a political party or a communal organisation cannot by itself be a disqualification for appointment to the post of Grade-II Jail warder. He further submitted that Rule 14-A can be invoked only when the petitioner joins the Government service and after entry to service, if he indulges in creating disharmony or feelings of enmity, hatred or ill-will between different religious, race, language etc., and that could be regarded as a misconduct for disciplinary action, under the relevant service rules. According to him, an aspirant to Government service cannot be turn back at the threshold on the ground of his association with a communal organisation. 7. Learned counsel for the petitioner farther submitted that the decision rendered by this Court in W.P. (MD) No. 8537 of 2007, dated 31.1.2008 is squarely applicable to the facts of this case, wherein non selection of a candidate to the post of Grade-Il Police Constable, on the ground of his membership in a political party, he has been held as improper. 8. Per contra, Mr. K. Balasubramanian, learned Additional Government Pleader, reiterated the averments made in the counter affidavit and submitted that having regard to the fact that the petitioner is a member of a communal organisation, and an agent of a magazine, he is disqualified for being considered to the post of Grade II Warder, in Prisons Department and there is no illegality in denying appointment. He further submitted that mere inclusion in the selection list does not confer any right for appointment. 9. Before adverting to the facts of this case, it is necessary to extract the relevant conduct rule put against the petitioner. Rule 14-A of the Tamil Nadu Government Servant Conduct Rules, 1973 read as follows: "14. A. Prohibition of membership of any Communal Organisation etc.:- i) No Government servant shall be a member of, or be otherwise associated with any organisation. Rule 14-A of the Tamil Nadu Government Servant Conduct Rules, 1973 read as follows: "14. A. Prohibition of membership of any Communal Organisation etc.:- i) No Government servant shall be a member of, or be otherwise associated with any organisation. (a) which promotes or attempts to promote on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill will between different religious, race, language or regional groups or castes or communities, or (b) whose activities are prejudicial to the maintenance of harmony between different religious, racial language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility or (c) which organises any exercise, movement, drill or other similar activity intending that the participants in such activity shall use of be trained to use criminal force or violence against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community. 2) 1f any question arises whether any organisation falls under sub-rule (1), the decision of the Government thereon shall be final." 10. In the reported judgment in State of Madhya Pradesh v. Ramashanker Raghuvanshi and Another (supra), the respondent before the Supreme Court, was denied employment by the Government of Madhya Pradesh on the ground character and antecedents as well as the involvement of the respondent in a criminal case reported that the respondent once belonged to some political organisation. He was not alleged to have involved in any illegal, vicious or subversive activity and the respondent was or is a perpetrator of violent-deeds or that he exhorted anyone to commit violent deeds. What was said against him was that before he was absorbed in Government service, he had taken part in some RSS or Jan Sangh activities. The appellant, State of Madhya Pradesh did not place any materials before the Supreme Court that the activities of the respondent were vicious or subversive. In the above factual background, when the respondent was dismissed from service, the High Court which tested the correctness of the dismissal order held that the order is punitive and set aside the same. The appellant, State of Madhya Pradesh did not place any materials before the Supreme Court that the activities of the respondent were vicious or subversive. In the above factual background, when the respondent was dismissed from service, the High Court which tested the correctness of the dismissal order held that the order is punitive and set aside the same. While considering the question as to whether affiliation with some political party can be considered as a disqualification to enter into government service and whether termination from Government Service can be made, merely on the basis of his participation in any agitation organised by a political party etc., the Supreme Court at paragraph 2 held as follows: "2. ...... Everyone is entitled to his thoughts and views, There are no barriers. Our Constitution guarantees that. In fact members of these organizations continue to be Members of Parliament and State Legislatures. They are heard often with respect, inside and outside the Parliament. What then was the sin that the respondent committed in participating in some political activity before his absorption into Government service? What was wrong in his being a member of an organisation which is not even alleged to be devoted to subversive or illegal activities? The whole idea of seeking a police report on the political faith and the past political activity of a candidate for public employment appears to our mind to cut at the very root of the Fundamental Rights of equality of opportunity in the matter of employment, freedom of expression and freedom of association. It is a different matter altogether if a police report is sought on the question of the involvement of the candidate in any criminal or subversive activity in order to find out his suitability for public employment. But why seek a police report on the political faith of a candidate and act upon it? Politics is no crime. Does it mean that only True Believers in the political faith of the party in power for the time being are entitled to public employment? Would it not lead to devastating results, if such a policy is pursued by each of the Governments of the constituent states of India where different political parties may happen to wield power, for the time being? Is public employment reserved for "the cringing and the craven" in the words of Mr. Would it not lead to devastating results, if such a policy is pursued by each of the Governments of the constituent states of India where different political parties may happen to wield power, for the time being? Is public employment reserved for "the cringing and the craven" in the words of Mr. Justice BLACK of the United States Supreme Court? Is it not destructive of the dignity of the individual mentioned in the Preamble of the Constitution? Is it to be put against a young man that before the cold climate of age and office freezes him into immobility, he takes part in some political activity in a mild manner. Most students and most young men are exhorted by national leaders to take part in political activities and if they do get involved in some form of agitation or the other, is it to be to their ever-lasting discredit? Some times they get involved because they feel strongly and badly about injustice, because they are possessed of integrity and because they are fired by idealism. They get involved because they are pushed into the forefront by elderly leaders who lead and occasionally mislead them. Should all these young men be debarred from public employment? Is government service such a heaven that only angels should seek entry into it? We do not have the slightest doubt that the whole business of seeking police reports, about the political faith, belief and association and the past political activity of a candidate for public employment is repugnant to the basic rights guaranteed by the Constitution and entirely misplaced in a democratic republic dedicated to the ideals set forth in the Preamble of the Constitution. We think it offends the Fundamental Rights guaranteed by Articles 14 and 16 of the Constitution to deny employment to an individual because of his past political affinities, unless such affinities are considered likely to affect the integrity and efficiency of the individual's service. To hold otherwise would be to introduce "McCarthyism" into India. "McCarthyism" is obnoxious to the whole philosophy of our Constitution. We do not want it." 11. No doubt there is no relationship of master and servant in the case of an aspirant to Government service. But at the same time, it cannot be said that the appointing authority is precluded from considering the eligibility of an aspirant with reference to the rules. We do not want it." 11. No doubt there is no relationship of master and servant in the case of an aspirant to Government service. But at the same time, it cannot be said that the appointing authority is precluded from considering the eligibility of an aspirant with reference to the rules. Therefore, this Court is not inclined to subscribe to the contention of the petitioner that only after entry into government service, the authorities have the power to take disciplinary action against the government servant. But, if an aspirant is a member or associated with a communal organisation which or does any activity falling under sub rules (b) and (c) of Rule 14-A of the Tamil Nadu Government Servants Conduct Rules, 1973 he can be disqualified from entering into government service. 12. In AIR 1954 SC the Supreme Court held that, the policy of the law is to keep government servants aloof from politics and also to protect them from being imposed on by those with influence or in positions of authority and power and to prevent the machinery of government from being used in furtherance of a candidate's return. But at the same time, it is not the policy of the law to defranchise them or to enude them altogether of their rights as ordinary citizens of land. 13. Reading of the counter affidavit in its entirety does not hint that TMMK is a communal organisation indulged in disharmony or promoted feelings of enmity, hatred or ill-will between different religious, race, language or regional groups or castes or communities etc., Unless the Government has banned or designated the said communal organisation, as one which creates disharmony or feelings of enmity, hatred or ill-will between different religious, race, language or regional groups or castes or communities or engages in such other activities, as mentioned in Rule 14-A of the Tamil Nadu Government Servants Conducts Rules, 1973, mere membership or holding of any position or office in such communal organisation cannot be a ground to disqualify an aspirant to government service. 14. 14. In the case on hand, the disqualification of the petitioner for consideration to the post of Grade-II Jail warder in Prison Department was on the grounds that i)he was Branch Secretary of TMMK, Vadaku Soorangudi, ii) agent of Vidiyal velli Magazine and iii) involved in a case Petition No. 182 of 2008 on the file of the Eathamozhi Police Station. Insofar as the first ground is concerned, the decisions relied on by the learned counsel for the petitioner are squarely applicable to the facts of this case. The second ground of disqualification is that he is an agent of Vidiyal velli magazine. That cannot be put aside against the petitioner, as he can always discontinue the agency at any time. The third reason does not hold water as the Sub Inspector of Police, who enquired the case in petition No. 182 of 2008 has found that the charge made in the petition was not proved. As long as the communal organisation in which the petitioner is stated to be a member is not categorised as one indulging or engaging in activities fall«j under Rule 14-A of the Government Servants Conduct Rules and in the absence of any adverse materials disqualification of the petitioner from being considered to the post in Government service, is violative of Article 14 of the Constitution of India. 15. In an unreported judgment of this Court made in W.P. (MD) No. 8537 of 2007, dated 31.1.2008, S. Selvakumar v. State of Tamil Nadu, rep. by the Home Secretary, Government of Tamil Nadu, Fort. St. George, Chennai and Others, appointment to the post of Grade-II, Police Constable to a person, was denied on the ground that he was a Branch Secretary of a particular political party and that he was involved in many political agitations organised by the said political party and thus, his character was not upto the satisfaction of the Director General of Police, Chennai. Following the ratio decidenti in State of Madhya Pradesh v. Ramashanker Raghuvanshi and another (supra) case, a learned Judge of this Court, (Hon'ble Mr. Justice S. NAGAMUTHU) at Paragraphs 7 and 11 held as follows: "7. In the case on hand, it is (sic) not the case of the respondents that the petitioner's involvement in a political party would affect his integrity and efficiency in police service. Justice S. NAGAMUTHU) at Paragraphs 7 and 11 held as follows: "7. In the case on hand, it is (sic) not the case of the respondents that the petitioner's involvement in a political party would affect his integrity and efficiency in police service. A bare perusal of the impugned order would go to show that he was rejected on the ground that he was the office bearer of a political party and involved in certain political agitations. Admittedly, the said political party in which he was the office bearer is not a banned organisation and the agitations in which the petitioner is alleged to have participated are also not anti-social or anti-national or unlawful agitations. Thus, in my considered opinion as held by the Hon'ble Supreme Court, the rejection of the petitioner that he was involved in politics as a member of a political party and also participated in some of the political agitations cannot be a valid ground at all and the same cannot be a disqualification, under Rule 14(b) of the Tamil Nadu Special Police Subordinate Rules 1978. 11. A close reading of the above said Judgment would go to show that since a Member of the Central Administrative Tribunal must be ensured absolute judicial independence, free from influences of any kind likely to interfere with independent judicial functioning or militate there against, the Hon'ble Supreme Court held that association with antisocial elements, unlawful organisations and political affiliations are also matters to be considered. In the case on hand, for appointment of a Police Constable it is not my endeavour to say that the political affiliation of an individual should be never taken into account. I am also to say that the political affiliation of the particular candidate is to be taken into account, but at the same time, it is to be further seen as to whether the particular candidate has involved in any illegal activities by resorting to any agitation organised by the political party etc., As held by the Hon'ble Supreme Court in State of Madhya Pradesh v. Ramashanker Raghuvanshi and Another (supra), being a member of a political party is not a sin. What is relevant is only his antecedents and character. What is relevant is only his antecedents and character. In the case on hand, in the impugned order, except stating that the petitioner was the Branch Secretary of a political party and also involved in political agitations, there are no materials to brand him as disqualified for being appointed in police service. Thus applying the principles laid down by the Hon'ble Supreme Court in the cases cited supra, I do not find any material to show that the petitioner had bad character and bad antecedents so as to disqualify him under Rule 14(b) of the Tamil Nadu Special Police Subordinate Rules 1978." 16. Ultimately, the learned Judge set aside the impugned order of rejection and directed the respondents therein to allow the petitioner to participate in the rest of the selection process and appoint him, if he was otherwise qualified. In the present case, the petitioner has gone through the entire process of selection, including medical fitness. At this juncture, before issuing the order of appointment, on the basis of the report submitted by the Inspector of Police, the petitioner has been non-suited to the post of Jail Warder (Men). As I have already found that the petitioner cannot be disqualified for the above said grounds, there shall be a direction to the respondents 1 and 2 to issue appointment orders to the post of Grade II, Jail Warder in Prison Department. It is only due to the erroneous approach of the respondents, the petitioner's appointment is being delayed. Therefore, he should not be made to suffer any longer. The petitioner is entitled to be placed at the appropriate' place, in the order of merit in the selection 17. With the above observations and direction, the writ petition is allowed as prayed for. No costs. Consequently, M.P. (MD) No. 1 of 2008 is closed. Petition allowed.