JUDGMENT : (Prayer:- Writ petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus directing the respondent to hold a fresh counselling session for the petitioner enabling her to express her choice of a post included in the Combined Subordinate Services Examination-I as a Open Competition or Open Competition (Woman) candidate appropriate to her rank position: 770 mentioned in the Counselling Schedule for 16.10.2012 authorised by the respondent- TNPSC and pass consequential orders in accordance with law.) Petitioner is a graduate in Microbiology, postgraduate in Microbial Biotechnology and Master of Philosophy in Microbiology. She is a gold medalist from Madurai Kamaraj University in her under-graduation. She belongs to Backward Community. 2. In response to an advertisement issued by the respondent for direct recruitment to the post included in Combined Subordinate Services Examination-I, she submitted her application under Backward Class category. She enclosed the Community certificate as proof of Backward Class. She appeared for the written test on 30.07.2011 and was directed to appear for certificate verification and oral test on 28.06.2012. After verification of the certificate, she was permitted to participate in the oral test. Considering her performance, she was directed to appear for counselling session held on 16.10.2012 and her rank position was shown as 770. When she was about to express her choice of posting, she was abruptly sent out of the room on the pretext that she was wrongly called by TNPSC for counselling and that she was not eligible for the post included in the Combined Subordinate Services Examination-I. The respondent have obtained a letter from the petitioner that she had not enclosed the Community certificate along with the application. Immediately on 18.10.2012, she sent an email through her lawyer that not permitting her to participate in the counselling session was unfair and unreasonable. Aggrieved over non selection, she preferred the above writ petition. 3. The respondent in counter affidavit would state that the petitioner had scored 244.50 marks in written test and she was summoned for oral test where she secured 30 marks out of 40. As per the instructions to the candidate and as per office order dated 07.11.2006 O.O.No.70 dated 27.08.2009, the candidate has to be treated in the category “Others” as she has not enclosed the Community certificate in support of her claim as Backward Class. As per the instructions to the candidate and as per office order dated 07.11.2006 O.O.No.70 dated 27.08.2009, the candidate has to be treated in the category “Others” as she has not enclosed the Community certificate in support of her claim as Backward Class. However, based on the order passed by this Court in W.A.No.2265 of 2012 dated 12.03.2012, the candidate was called for oral test subject to outcome of the review petition. She could not be treated as open category also as she has not paid the prescribed examination fee, therefore she cannot be appointed. However, she was allowed to participate in the counselling conducted on 07.01.2013 for non oral test posts. The petitioner opted for the post of Assistant in Police Department during the said counselling. 4. Heard the submissions. 5. It is not in dispute that the petitioner possess basic educational qualification to appear for the examination conducted for Combined Subordinate Services Examination-I. According to the petitioner she has enclosed the Community certificate as proof along with the application but she has not shaded the OMR sheet for which mistake she was sent out of the counselling room. The fact remains that she has secured 244.50 marks in the written test and 30 out of 40 marks in the oral test and thus ranked at 770th position. The respondent also did not deny that she had produced the Community certificate at the time of certificate verification. It is obvious that only after verifying the Community certificate she should have been permitted for participating in the oral test. Further, as per her ranking she was entitled to get selection in the Open category also. It is also not in dispute that there are various categories like Backward Class, Backward Class (woman), Woman Category and Open category. From the factual submissions made by both the parties, it is very clear that the petitioner is entitled to get appointment on her own merits in any one of the categories. 6. The Tamilnadu Public Service Commission has taken a dual stand one that the petitioner has not enclosed the Community certificate and therefore she could not be considered as a Backward class candidate. The other stand that she has not paid the examination fee, for, for Backward class candidates, examination fee is waived and therefore, she cannot be considered in the Open Category (Others) also. The other stand that she has not paid the examination fee, for, for Backward class candidates, examination fee is waived and therefore, she cannot be considered in the Open Category (Others) also. The end result is that the substantive right of the petitioner was taken away on account of some procedural lapse. If the petitioner has not produced the Community certificate, she would not have been permitted to appear for oral test. If it is stated that the petitioner did not produce the Community Certificate as alleged, the lapse is on the part of the officials of the respondents permitting her to appear in the oral test. 7. In the case of The Secretary, Tamil Nadu Public Service Commission Vs. M.Chitra, reported in 2010 2 MLJ 146 , the Division Bench of this Court has held thus: .......... 7. There can be no controversy that the instructions to candidates and the brochure bind the candidates and the Service Commission, according to which, the candidates are bound to produce all the necessary documents/certificates along with the application. In general, the application shall be rejected for non- production of such certificates/documents. But, in our considered opinion, an exception can be carved out to the same. At this juncture, it would be worthwhile to clarify that all certificates, which are required to be produced along with application, cannot be treated equally. There are some certificates, like certificates relating to the basic qualification etc., which are essential, without which the applications cannot be entertained at all. On the other hand, there are certain other certificates, like Community Certificate, certificates relating to special consideration, like sports certificate, NCC, NSS Certificates, etc., which are not essential for entertaining the application of the candidates. So, there can be no controversy that non-production of the former kind of certificates within the cut off date, shall be a ground to reject the application summarily, as mentioned in the instructions to the candidates and information brochure, because, they relate to the essential qualifications for making application. To put it otherwise, unless the Service Commission is satisfied about the eligibility criteria based on the said certificates, it cannot entertain the applications, and therefore, the applications in such an event are to be necessarily rejected. 8. To put it otherwise, unless the Service Commission is satisfied about the eligibility criteria based on the said certificates, it cannot entertain the applications, and therefore, the applications in such an event are to be necessarily rejected. 8. Insofar as the later kind of certificates are concerned, for entertaining the application, these certificates, which relate only to special qualifications or consideration, are not that much material. Even in the absence of these certificates, the applications are to be entertained and when the question of considering the special qualifications or status arises, it would be suffice, if the certificates are made available to the Commission. For example, if a candidate claims that he/she is entitled for being considered under the quota reserved for Schedule Tribe Community and if the required Community Certificate is not produced, his/her application cannot be rejected, but instead he/she has to be treated under the open quota. For any reason, if such a Community Certificate is produced before the date of finalization of the provisional selection list based on the cut off marks secured in the written examination, in our opinion, the same would be suffice.” 8. In Charles K.Skaria Vs Dr.C. Mathes reported in AIR 1980 SC 1230 = 1980 2 SCC 752 , the Hon’ble Supreme Court has held thus: .......... 20. There is nothing unreasonable nor arbitrary in adding 10 marks for holders of a diploma. But to earn this extra 10 marks, the diploma must be obtained at least on or before the last date for application, not later. Proof of having obtained a diploma is different from the factum of having got it. Has the candidate, in fact, secured a diploma before the final date of application for admission to the degree course ? That is the primary question. It is prudent to produce evidence of the diploma along with the application, but that is secondary. Relaxation of the date on the first is illegal, not so on the second. Academic excellence, through a diploma for which extra mark is granted, cannot be denuded because proof is produced only later, yet before the date of actual selection. The emphasis is on the diploma, the proof thereof subserves the factum of possession of the diploma and is not an independent factor. ” 9. In Dolly Chhanda Vs. Academic excellence, through a diploma for which extra mark is granted, cannot be denuded because proof is produced only later, yet before the date of actual selection. The emphasis is on the diploma, the proof thereof subserves the factum of possession of the diploma and is not an independent factor. ” 9. In Dolly Chhanda Vs. Chairman Jee and others, reported in AIR 2004 SC 5043 , the Full Bench of Hon’ble Supreme Court has held thus: .... 7. The general rule is that while applying for any course of study or a post, a person must possess the eligibility qualification on the last date fixed for such purpose either in the admission brochure or in application form, as the case may be, unless there is an express provision to the contrary. There can be no relaxation in this regard i.e. in the matter of holding the requisite eligibility qualification by the date fixed. This has to be established by producing the necessary certificates, degrees or marksheets. Similarly, in order to avail of the benefit of reservation or weightage etc. necessary certificates have to be produced. These are documents in the nature of proof of holding of particular qualification or percentage of marks secured or entitlement for benefit of reservation. Depending upon the facts of a case, there can be some relaxation in the matter of submission of proof and it will not be proper to apply any rigid principle as it pertains in the domain of procedure. Every infraction of the rule relating to submission of proof need not necessarily result in rejection of candidature.” wherein following the judgment of Charles K.Skaria Vs Dr.C. Mathew, it is held as follows: 8. This principle was explained and applied in Charles K. Skaria & Ors. v. Dr. C. Mathew & Ors. 1980 (2) SCC 752 . The controversy here related to admission to a post graduate course in medicine. The relevant rule provided for addition of 10% marks if a candidate possessed a diploma in the relevant subject or sub-specialty and this benefit could be given only if the candidate’s success in the diploma course was brought to the knowledge of the Selection Committee before completion of selection in an authentic or acceptable manner. The Prospectus provided that the attested copies of statement of marks and other documents should be attached with every application. The Prospectus provided that the attested copies of statement of marks and other documents should be attached with every application. Three such candidates were given admission who had not attached the certificate of having passed the diploma along with their applications. Their admission to post graduate course was set aside by the High Court on the ground that their applications, wherein they claimed the benefit of diploma, were liable to be rejected as the requisite certificates had not been attached. This Court speaking through Krishna Iyer, J. reversed the judgment of the High Court and held that the admission to the candidates had rightly been given as they had in fact passed the diploma before the date fixed. The relevant parts of paras 20 and 24 of the judgment, where this principle was highlighted are being reproduced below : “20. There is nothing unreasonable or arbitrary in adding 10 marks for holders of a diploma. But to earn these extra 10 marks, the diploma must be obtained at least on or before the last date for application, not later. Proof of having obtained a diploma is different from the factum of having got it. Has the candidate, in fact, secured a diploma before the final date of application for admission to the degree course ? That is the primary question. It is prudent to produce evidence of the diploma along with the application, but that is secondary. Relaxation of the date on the first is illegal, not so on the second. Academic excellence, through a diploma for which extra mark is granted, cannot be denuded because proof is produced only later, yet before the date of actual selection. The emphasis is on the diploma; the proof thereof subserves the factum of possession of the diploma and is not an independent factor. ........ Mode of proof is geared to the goal of the qualification in question. It is subversive of sound interpretation and realistic decoding of the prescription to telescope the two and make both mandatory in point of time. What is essential is the possession of a diploma before the given date; what is ancillary is the safe mode of proof of the qualification. To confuse between a fact and its proof is blurred perspicacity. To make mandatory the date of acquiring the additional qualification before the last date for application makes sense. What is essential is the possession of a diploma before the given date; what is ancillary is the safe mode of proof of the qualification. To confuse between a fact and its proof is blurred perspicacity. To make mandatory the date of acquiring the additional qualification before the last date for application makes sense. But if it is unshakeably shown that the qualification has been acquired before the relevant date, as is the case here, to invalidate this merit factor because proof, though indubitable, was adduced a few days later but before the selection or in a manner not mentioned in the prospectus, but still above-board, is to make procedure not the handmaid but the mistress and form not as subservient to substance but as superior to the essence. .......... 24. It is notorious that this formalistic, ritualistic, approach is unrealistic and is unwittingly traumatic, unjust and subversive of the purpose of the exercise. This way of viewing problems dehumanizes the administrative, judicial and even legislative processes in the wider perspective of law for man and not man for law. Much of hardship and harassment in administration flows from over-emphasis on the external rather than the essential. We think the government and the selection committee rightly treated as directory (not mandatory) the mode of proving the holding of diplomas and as mandatory the actual possession of the diploma. In actual life, we know how exasperatingly dilatory it is to get copies of degrees, decrees and deeds, not to speak of other authenticated documents like mark-lists from universities, why, even bail orders from courts and government orders from public offices..........” 9. The appellant undoubtedly belonged to reserved MI category. She comes from a very humble background, her father was only a Naik in the armed forces. He may not have noticed the mistake which had been committed by the Zilla Sainik Board while issuing the first certificate dated 29.6.2003. But it does not mean that the appellant should be denied her due when she produced a correct certificate at the stage of second counselling. Those who secured rank lower than the appellant have already been admitted. The view taken by the authorities in denying admission to the appellant is wholly unjust and illegal.” 10. But it does not mean that the appellant should be denied her due when she produced a correct certificate at the stage of second counselling. Those who secured rank lower than the appellant have already been admitted. The view taken by the authorities in denying admission to the appellant is wholly unjust and illegal.” 10. In yet another judgment I Bench of this Court in the case of V.Premanand vs. The State of Tamil Nadu and others, reported in AIR 1995 Mad 316 , it has observed as under: ........... 5.................The procedure is intended to facilitate enforcement of substantive right and not to defeat the substantive right. Procedure is hand-maid of justice and not to defeat justice. Therefore, the Selection Committee acted arbitrarily when it rejected the application, even though it had before it the certificate produced by the petitioner to the effect that he satisfied the category of children born of inter-caste marriage between S.C./S.T. and Forward Community. As long as the application was filed in time and the applicant was able to satisfy the requirement of production of certificate from the appropriate authority, before his application was considered for selection, it was not at all open to the Selection Committee to refuse to consider the application only on the ground that such a certificate had not been produced along with the application.” 11. The judgment of this Court in Dr.A.Rajapandian vs. State of Tamil Nadu and the Deputy Secretary, Tamil Nadu Public Service Commission, reported in 2007 1 MLJ 820 , the Division Bench of this Court following the judgment of V.Premanand has observed as under: ...... 21. We are of the view that in the above backdrop of the case, no such contingency arose before the earlier Division Bench and hence, reliance placed upon the same by the counsel for TNPSC has relevance. It is seen from the said decision, neither in the summing up of submissions of various counsels made before the earlier Division Bench as noted in paragraph 9 of the said decision (cited supra) nor such an issue was framed by the earlier Division Bench found in paragraph 16 and such an issue never arose for its consideration. 22. In this context, it is significant to note an observation made by a Division Bench of this Court vide its decision reported in 1995 (II) M.L.J. 325 (V.Premanand vs. The State of Tamil Nadu). 22. In this context, it is significant to note an observation made by a Division Bench of this Court vide its decision reported in 1995 (II) M.L.J. 325 (V.Premanand vs. The State of Tamil Nadu). The Bench held in paragraph 5 of the judgment as follows: “It must be pointed out that Clause 13.5 only prescribed the procedure in order to eliminate persons who do not belong to that category, to take undue advantage. As long as it is not in dispute that the petitioner belongs to that category of children born of intercaste marriage between S.C./ S.T. and Forward Community and in addition to this, he was able to produce the certificate before the application was scrutinised for admission, rejection of such application amounted to giving greater value to the procedure than to the substantive right. The procedure is intended to facilitate enforcement of substantive right and not to defeat the substantive right. Procedure is hand-maid of justice and not to defeat justice.“ (Emphasis supplied) The above ruling shows that the right to selection is determined by the fact that the candidate belonged to that category and not by the certificate, which was only a piece of evidence.” 12. From the conspectus of the above decisions, it is categorically understood that non production of Community certificate cannot take away the substantive right of appointment of a candidate. In the instant case, the petitioner had submitted her Community certificate in proof that she belongs to Backward Class community along with the application. The applicant successfully obtained 244.50 marks in the written examination and 30 out of 40 in the oral test. She was permitted to participate in the oral test only after the certificate verification conducted by the respondent. It is not the case of the respondent that she does not belong to Backward Class and she did not produce the Community certificate on the date of certificate verification or that she was permitted without production of any certificate that she belong to Backward Class community. She appeared in the oral test on 28.06.2012. Admittedly, the counselling was held on 16.10.2012. Her ranking was 770 in the merit list. For the marks secured, it is not in dispute that the petitioner would certainly be entitled to selection to a post in any of the post and in any categories viz., Open category, Backward Class category, Backward Class (woman) category etc.,. Admittedly, the counselling was held on 16.10.2012. Her ranking was 770 in the merit list. For the marks secured, it is not in dispute that the petitioner would certainly be entitled to selection to a post in any of the post and in any categories viz., Open category, Backward Class category, Backward Class (woman) category etc.,. After a period of four months form the date of certificate verification, the respondent has prevented the petitioner from exercising her choice of posting under the pretext that she did not shadow the box with respect to “Backward Class” category in the OMR sheet. The reason stated by the respondent is flimsy and hyper technical and definitely not actuated by malafides. It discloses absolutely non-application of mind, reckless attitude, unwillingness and refusal to exercise the discretion lawfully conferred on them to set right the minor anomalies. The conduct of the respondent is absolutely arbitrary and it appears it is tainted with extraneous consideration. 13. As held by the judgment of the Hon’ble Supreme Court it is notorious that this formalistic, ritualistic, approach is unrealistic and is unwittingly traumatic, unjust and subversive of the purpose of the exercise. The purpose of conducting the examinations by Tamil Nadu Public Service is to select meritorious candidates. Admittedly, the petitioner is one of the meritorious candidates and she deserves selection for appointment to any of the post of Combined Subordinate Services on her own merits and as a matter of right. But it was denied by the respondent on the ground of some minor procedural lapse which is attributable to them also. It is not the fault of the candidate but all the officials of the respondent in not verifying the defect even before permitting her for written examination. Had they have taken due care, the petitioner would have clarified her communal status. At the risk of repetition, it is reiterated that it is not the case of the respondent that the petitioner does not belong to Backward Class community but it is their case that she has not produced the community certificate along with the application. If she had not produced the Community certificate during certificate verification she would not have been permitted for oral test. Therefore, as held by the Hon’ble Supreme Court in Dolly Chand’s case, rejecting of employment for non production of the Community certificate is illegal and unjust. 14. If she had not produced the Community certificate during certificate verification she would not have been permitted for oral test. Therefore, as held by the Hon’ble Supreme Court in Dolly Chand’s case, rejecting of employment for non production of the Community certificate is illegal and unjust. 14. The birth of a person in a particular community cannot be changed by production or non-production of a certificate. In the instant case, the petitioner is a Backward Class candidate and that cannot be changed by non production of the certificate. Therefore, the substantive fact remains that she belong to Backward Class community and the procedure in only the hand maid of law and it is intended to facilitate enforcement of substantive right and not to defeat the substantive right and thereby not to defeat justice. Therefore, the petitioner who is a meritorious candidate who has secured 770th rank and ensured of appointment even in the open category should not have been deprived of appointment on the so called procedural lapse. 15. The Division Bench of this Court in Chitra’s case has held that even the Community certificate is not produced, his or her application cannot be rejected but instead can be treated under the open quota and thus she is entitled to appointment. The hypertechnical stand taken by the respondent is highly arbitrary and shows the unhumanistic, irrational approach of the respondent. Payment of fee is always a curable defect. Fee / money can be collected from the candidates at any point of time before selection and even after selection. Non-payment of money or availing of a concession under a particular category can not be a ground for testing the merit and ability of a person or to take a substantive right of a person to complete and get selected. 16. Therefore, the non selection of petitioner and refusal to give appointment to the petitioner is highly arbitrary, illegal, unjust and inhumane. In such circumstances, this Court is of the considered opinion that the petitioner is rightfully entitled to get appointment and issues a positive direction to the respondent to give her appointment on the basis of Combined Subordinate Services Examination-I conducted by the Tamil Nadu Public Service Commission in the year 2012. In such circumstances, this Court is of the considered opinion that the petitioner is rightfully entitled to get appointment and issues a positive direction to the respondent to give her appointment on the basis of Combined Subordinate Services Examination-I conducted by the Tamil Nadu Public Service Commission in the year 2012. The respondent is further directed to address the Government to provide her an appointment in the suitable post as become her rank and talent within a period of three months from the date of receipt of a copy of this order. The writ petition is allowed with the above observations. No costs.