IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.07.2008
C O R A M:
THE HONOURABLE Mr.JUSTICE S.J.MUKHOPADHAYA
and
THE HONOURABLE Mr.JUSTICE F.M.IBRAHIM KALIFULLA
W.P.No.37372 of 2007
1. B.Rajasekaran
2. S.Murali
3. D.Varadarajan .. Petitioners
-Vs-
1. The Principal District Judge,
Villupuram,
Villupuram District.
2. The District Collector,
Villupuram.
3. The Registrar General,
High Court of Madras,
Chennai 104.
(R2 impleaded as per suo moto
order dt.19.12.2007 by PKMJ & KKSJ
and R3 impleaded as per order
dt.31.03.2008 in M.P.No.1/08
by SJMJ & RSHJ) .. Respondents.
Writ petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus, directing the respondents to re-fix the seniority of the petitioners by calculating the entire service of the petitioners including the service rendered at parent Department as per Rule 7 of the Special Rules for Tamil Nadu Basic Services and by applying the judgment dated 02.07.2007 of Division Bench of this Court in W.P.No.21462 of 2007 and grant all benefits including promotion and monetary benefits on par with juniors.
For Petitioners : Ms.T.Aanandhi
For Respondents 1 & 2 : Mr.M.Dhandapani
Special Government Pleader
For Respondent 3 : Mr.V.Ayyadurai
- - - -
O R D E R
F.M.IBRAHIM KALIFULLA, J.
The petitioners seek for the issuance of writ of mandamus directing the respondents, in particular the first respondent, to re-fix the seniority of the petitioners by calculating the entire service of the petitioners including the service rendered by them in their parent Department as per Rule 7 of the Special Rules for Tamil Nadu Basic Services and by applying the Division Bench decision of this Court dated 02.07.2007, passed in W.P.No.21462 of 2007. The petitioners also seek for all consequential benefits including monetary as well as promotion on par with their juniors.
2. The necessary facts which are required to be stated are that the petitioners were originally appointed in the Highways Department in the years 1982 / 1985. The policy of the Government in respect of appointment of Office Assistants was stated to be in the ratio of 1:15 i.e. for every 15 Ministerial Staff, one Office Assistant has to be appointed. According to the petitioners since they were found surplus in the Highways Department, their services were surrendered to the second respondent and that the second respondent redeployed them to the services of the first respondent. The petitioners were all relieved from the Highways Department on 31.10.2002 and on the same day afternoon, they joined the office of the first respondent. They were all issued with the order of appointment along with certain other persons by the first respondent on 28.10.2002.
3. According to the petitioners since the surrender of their services by the Highways Department and their redeployment to the Judicial Department was not on their own volition they were entitled for protection of their past services in the Highways Department and the same has to be tagged on to the services of the first respondent. They also claim that their seniority has to be ascertained on that basis. The petitioners have therefore come forward with the prayer as couched in the writ petition.
4. In the counter affidavit filed by the second respondent, it is stated that along with the petitioners, certain other employees who were found surplus in the Highways Department were also sent to the Judicial Department by an order dated 23.09.2002. It is also stated that in the said order, it was specifically mentioned that the services rendered by them in other departments should be taken into account by the department to which they were allotted as per G.O.Ms.Nos.745 and 746, Finance (Ze-Bag) Department, dated 22.09.1995.
5. The second respondent also contended that by virtue of Rule 7 of the Tamil Nadu Basic Service Rules, any person absorbed in other departments due to change in the Government policy, their services should be fixed with reference to their appointment in the former department. The second respondent would therefore support the claim of the petitioners and state that the services rendered by them in the Highways Department should be taken into account while drawing their seniority in the Judicial Department.
6. No counter affidavit has been filed on behalf of the first and third respondents. At the time when the writ petition was moved, the District Collector, Villupuram was suo motto impleaded as the second respondent and both the 1st and 2nd respondents were directed to file their counter. Subsequently, on 01.02.2008, the petitioners were directed to implead the third respondent viz., Registrar General of this Court having regard to the nature of the claim made by the petitioners. The third respondent was also directed to file counter affidavit by 08.04.2008. Subsequently, when the case came on 29.04.2008, further four weeks time was granted for the respondents to file their counter affidavit. It was made clear that if counter affidavits were not filed, the writ petitions would be disposed of on merits based on the averment contained in the writ petition as well as the records placed before the Court. Again when the matter was called on 13.06.2008, once again time was granted for the respondents to file counter affidavit and the case was directed to be posted on 27.06.2008. Though counter affidavit was filed on behalf of the second respondent, no counter affidavit has been filed by the first and third respondents. Though the first and the third respondents were represented by separate counsel, it is unfortunate that no steps were taken to file the counter affidavit. Since after the induction of the services of the petitioners in the first respondent, the consequential service benefits and status were to be set forth and stated only by the first respondent, the said respondent and the third respondent ought to have presented the facts and the circumstances under which the petitioners came to be inducted in the service of the Judicial Department by filing necessary counter affidavits. In spite of sufficient time and opportunities extended to them, the non filing of the counter affidavits calls for serious concern. We take strong exception to the total inaction displayed on the part of the first and third respondents in not filing their counter affidavit and placing necessary materials in the proper form before this Court. Since sufficient time was granted and yet the counter affidavit was not filed on behalf of the first and third respondents, we were obliged to hear the writ petition and dispose of the same by perusing the records and the files produced by the third respondent.
7. To appreciate the contentions raised on behalf of the petitioners and arrive at a just conclusion, the materials which are relevant for our consideration are as under:
(i) G.O.Ms.No.1254 Home (Courts-1A) Department, dated 18.12.2001;
(ii) D.O. Letter of the first respondent in D.O.Lr.No.399/2001, dated 18.02.2002 to the second respondent;
(iii) Order of the second respondent dated 23.09.2002, forwarding the names of 25 candidates to the first respondent in the category of Office Assistants for being appointed by the first respondent; and
(iv) Order of appointment dated 28.10.2002, issued to the 25 Office Assistants who were posted in different sections of the Judicial Department coming within the control of the first respondent.
8. Though the learned counsel appearing for the petitioners placed heavy reliance upon G.O.Ms.Nos.745 and 746 dated 22.09.1995, in and by which, the State Government made provisions for allotment of surplus Office Assistants working in various Government offices in the District to other departments, in our considered opinion, the same have no relevance in the light of the rules applicable to the case of the petitioners after their entry into service in the Judicial Department as well as the specific terms contained in the order of appointment itself. Therefore, we proceed to decide the writ petition and the prayer made therein based on the relevant rules applicable and the material documents required for that purpose. In the order of appointment itself, the post of Office Assistant is one of the post sanctioned by the State Government in G.O.Ms.No.1254, Home (Courts-1A) Department, dated 18.12.2001, as part of setting up of Fast Track Court based on the recommendations of the XI Finance Commission. In fact to enable the respective Mofussil Court to fill up the sanctioned post under G.O.Ms.No.1254, dated 18.12.2001, the exemption from the ban of recruitment as per G.O.(D)No.1090, Home, dated 05.12.2001 was also approved. As far as the post of Office Assistants were concerned, though it was stated therein that in the first instance those posts should be filled up from the surplus pool available with the District Collector in each District, the recruitment can be resorted to through Employment Exchanges only after no person is available in the surplus pool. The said Government Order proceeds to state that the third respondent was permitted to fill up the post subject to conditions viz., that their appointment should be purely on temporary basis without conferring any right for future regular appointment. Apart from the condition that any recruitment made through Employment Exchange should be replaced as quickly as possible by securing the candidates from the Tamil Nadu Public Service Commission.
9. In the first instance, we wish to refer to the relevant Special Rules for Tamil Nadu Basic Services applicable to the petitioners. Admittedly, the petitioners category viz., Office Assistants falls under Category 5 of Class III as constituted under Rule 1. As far as the method of appointment of all categories in Class III is concerned Rule 3 specifically states that the same is by way of direct recruitment or recruitment by transfer from any other services or transfer from Class IV. Under Rule 2 it is specifically provided that the appointing authority for the Class and Categories of posts in the departments and offices are as mentioned in Column (2) of the Annexure with respect to various class and categories mentioned in Column 1. In the Annexure, the various departments of the Government and the concerned appointing authorities in respect of different class and categories of employees has been set out. As far as Judicial Department is concerned, among other sections in so far as Mofussil Courts (Civil and Sessions) are concerned, the appointing authorities have been specified as the Presiding Officer of the Court concerned, in so far as it relates to appointment of all the categories falling under Class III.
10. One other rule which is relevant to be noted is Rule 7(b) and its proviso. For better appreciation of the issue involved, we feel it appropriate to extract the same, which reads as under:
7. Service in a class or category in different Departments, or Offices:
(a) …..
(b) In cases of transfer from one Department to another that is, from the jurisdiction of one appointing authority to another, at the request of the individual, he shall be treated as a transferee to the service and treated as the junior most in the department to which he is transferred.
Provided that the seniority of persons absorbed in other Departments on abolition of posts and retrenchment of staff, due to Government’s change in Policies, shall be fixed with reference to the date of their regular appointment in the former Department.
11. A conspectus reading of the above provisions along with the material papers makes it clear that the first respondent is the appointing authority for the post of Office Assistant in his District and that such appointment is governed by G.O.Ms.No.1254, dated 18.12.2001 and the order of appointment dated 28.10.2002. Before referring to the prescription contained in Rule 7(b) and its proviso, we feel it appropriate to refer to the manner of appointment of the petitioners. Preceding the issuance of order of appointment dated 28.10.2002, there was a specific requisition from the first respondent to the second respondent in D.O. Letter dated 18.02.2002, for sponsoring 25 candidates for appointment for the post of Office Assistants. The first respondent while seeking for such sponsorship from the second respondent made a specific reference to the sanction of three Fast Track Courts in his district as per G.O.Ms.No.1254, dated 18.12.2001 and the requirements of Office Assistant Posts in the other sections viz., in the Civil Unit of Villupuram District as well as the future vacancies that would arise by virtue of promotion of the existing Office Assistants to the post of Junior Bailiff. The details of requirements has been set out in the said communication as under:
(i) 3 Fast Track Courts – 6 posts
(ii) Vacant posts in Civil Unit
of Villupuram District – 7 posts
(iii) For giving promotion from
Office Assistants to Junior
Bailiffs – 12 posts
Total – 25 posts.
In the event of non-availability of candidates, the first respondent wanted a specific certificate to that effect from the second respondent. After prolonged communications, the second respondent by an order dated 23.09.2002, sponsored 25 persons including the petitioners herein from out of the surplus Office Assistants from other departments. The first respondent thereafter issued an appointment order dated 28.10.2002, for all the 25 persons. In the order dated 23.09.2002, the second respondent mentioned in paragraph 3 that the past service of those candidates should be taken into account in the new departments. However, in the appointment order dated 28.10.2002, the first respondent has specifically mentioned that they will take their rank and seniority as in the order of appointment dated 28.10.2002.
12. A reading of the appointment order dated 28.10.2002, makes it amply clear that such appointment is afresh in the Judicial Department and in as much as it is specifically mentioned that their rank and seniority is specified in the appointment order itself, the question of tagging on their past service in the other departments did not arise. In any case there was no specific mention to the effect that such appointment was by way of transfer of service from erstwhile Highways Department to that of Judicial Department. A combined reading of the D.O. letter dated 18.02.2002 and 28.10.2002, makes it further clear that the first respondent never intended to seek for any transfer of employment from the Highways Department to that of the Judicial Department. The specific statement contained in the D.O. letter dated 18.02.2002 to the second respondent to issue a certificate as to the non-availability of 25 persons, makes it abundantly clear that the first respondent only wanted mere sponsorship of candidates and was not interested in any transfer of service from any other department to that of the Judicial Department.
13. When such a factual conclusion can be derived from the above referred to documents, we are convinced that the appointment of the petitioners and other persons as per the appointment letter dated 28.10.2002, was by way of fresh appointment in the office of the first respondent to the post of Office Assistants which has taken effect from the date of such appointment with a further direction that their rank and seniority would be as fixed in the said order of appointment. When such a decision can be reached without any ambiguity, we hold that there is no scope for applying Rule 7(b) or its proviso. As far as Rule 7(b) is concerned, in the first place it must be by way of transfer from one Department to another. Further such transfer from the jurisdiction of one appointing authority to another, should be at the requisition of the individual. In cases of such transfer falling under Rule 7(b), the transferee will be treated as the junior most in the Department to which he is transferred. The proviso however carves out the category of persons who are absorbed in the other departments by virtue of they having been found surplus in their original department of posting on abolition of posts and retrenchment of staff, due to change in the Government policy, in which case, their seniority should be fixed with reference to the date of their regular appointment in the former department. While applying the said proviso to the case on hand, we find that the first respondent never intended to seek for any such allotment of such surplus staff from the other departments. In fact at the risk of repetition, it will have to be stated that in the D.O.letter dated 18.02.2002, the first respondent asked for sponsoring of 25 candidates in order to fill up the existing posts in its department. Since at the initiation of the first respondent, in its D.O. Letter dated 18.02.2002, the second respondent sponsored the candidates for filling up the post of 25 candidates and the order of appointment dated 28.10.2002, clearly set out that such appointment was to take effect as per the rank and seniority as set out in the said order, the question of treating such appointment as one by way of transfer from one department to another department does not arise. Equally, there was no question of absorption of such employees in the Judicial Department, when both the above relevant factors viz., transfer by appointment and consequent absorption in the transferred department did not exist. On the other hand as the appointment was afresh and the rank and seniority to be determined as prescribed in the order of appointment, there was absolutely no scope to apply Rule 7(b) or its proviso to the case of the petitioners or any other person who came to be appointed under the said order of appointment dated 28.10.2002. That apart by virtue of the specific condition contained in G.O.Ms.No.1254, dated 18.12.2001 that such appointment of surplus staff can only be on temporary basis, no right much less a legally enforceable right exists with the petitioners to seek for such a large relief as claimed in their writ petition.
14. Any amount of assertion on the part of the second respondent in its counter affidavit which is contrary to the order of appointment issued by the first respondent dated 28.10.2002 and G.O.Ms.No.1254, dated 18.12.2001 cannot improve the case of the petitioners. If such a stand of the second respondent is to be accepted, the same would run counter to the prescription contained in Rule 7(b) and its proviso as well as the above referred to G.O. which is wholly impermissible in law. In other words, merely based on the stand of the second respondent in its counter affidavit, the application of Rule 7(b) and its proviso cannot be extended when the factual order of appointment runs counter to the said stand of the second respondent. Therefore, going by the provisions contained in the Special Rules for Tamil Nadu Basic Service, which prescribes the manner in which any appointment has to be made to the category of Office Assistants and when the order of the first respondent dated 28.10.2002, was in the normal course of appointment of a person to that category by way of fresh appointment, there is no scope to countenance the claim of the petitioners in this writ petition.
15. It will have to be stated that so long as the said order of appointment dated 28.10.2002, continue to remain in force, any amount of claim made by the petitioners contrary to the terms contained in the said order cannot be considered. In other words, the petitioners not having challenged the manner in which their appointment came to be made in the order dated 28.10.2002, specifying that their rank and seniority was determined as per the one set out in the said order, in the absence of any successful challenge to the said order, the petitioners cannot be permitted to raise any contentions contrary to the said order.
16. As far as the reliance placed upon by the learned counsel for the petitioners on an unreported decision of a Division Bench of this Court dated 29.04.2008, passed in W.P.No.33647 of 2007, we are unable to apply the said decision to the facts of this case. In the said decision, what was held was that the Government Order in G.O.Ms.No.18, Labour and Employment (N2) Department dated 25.02.2008, prescribing the ratio of sponsorship of candidates for any post by Employment Exchange i.e. 1:5 was not applicable either to the High Court or the District Courts or any other Court subordinate to the High Court, which are not Government Departments or Local Bodies or Undertakings of the State, to which alone the said G.O. was applicable.
17. As far as the other decision relied upon by the learned counsel for the petitioners in the order dated 02.07.2007 passed in W.P.No.21462 of 20007, the Division Bench of this Court has only left to the District Collector to decide as to the counting of past service in the erstwhile department for determining the seniority. In fact in paragraph 5 the Division Bench has held as under:
5……In the present case, as the matter requires determination of the respondents at the first instance, the case is remitted to the District Collector, Cuddalore District, with a direction to consider the question whether the petitioner is entitled for counting the seniority of the period of service rendered under the State Government for the purpose of fixing the seniority in the present post according to Rule 7.
Therefore, that was not a case similar to the facts involved in the case on hand or that the relief as prayed for by the petitioners therein was straightaway granted by the Division Bench. On the other hand the Division Bench has only remitted the matter to the District Collector, Cuddalore for considering the issue of applicability of Rule 7 to the petitioner therein and pass orders. Therefore, we are not in a position to apply the said decision also to the facts of this case.
18. For all the above said reasons, we do not find any scope to grant any relief to the petitioners as prayed for, the writ petition therefore fails and the same is dismissed. No costs.
(S.J.M.J.) (F.M.I.K.J.)
16.07.2008
Index : Yes
Internet : Yes
kk
To
1. The Principal District Judge,
Villupuram,
Villupuram District.
2. The District Collector,
Villupuram.
3. The Registrar General,
High Court of Madras,
Chennai 104.
S.J.MUKHOPADHAYA, J.
and
F.M. IBRAHIM KALIFULLA, J.
kk
PRE DELIVERY ORDER IN
W.P.No.37372 of 2007
16.07.2008
PRE DELIVERY ORDER IN
W.P.No.37372 of 2007
To
THE HONOURABLE Mr.JUSTICE S.J.MUKHOPADHAYA
From
JUSTICE F.M.IBRAHIM KALIFULLA
JUSTICE
F.M.IBRAHIM KALIFULLA
Dated: .07.2008
To
THE HON 'BLE MR.JUSTICE S.J.MUKHOPADHAYA
FOR CONSIDERATION
PRE DELIVERY ORDER IN
W.P.No.37372 of 2007
(JUSTICE F.M.IBRAHIM KALIFULLA)