IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.2.2010
CORAM:
THE HONOURABLE MR.JUSTICE P.JYOTHIMANI
W.P.Nos.3823 and 6508 of 2008
W.P.No.3823 of 2008:
1.A.Mubarak
2.K.Venkatesan
3.R.Rameeza Banu
4.V.Saravanakumar
5.N.Rajasekar
6.P.Velumurugan
7.P.Ponnusamy
8.K.Seenivasan
9.M.Narasimhan
10.S.Shanmugasundaram
11.R.Arunagiri
12.M.Ramesh Babu
13.C.Saravanan
14.M.Senthil Kumar
15.S.Santhanakrishnan
16.K.Anbazhagan
17.N.Durairaj
18.R.Rajan
19.T.Elavarasan
20.P.Sivakumar .. Petitioners
Vs.
1. State of Tamilnadu
rep. by Secretary to Government
Finance (LF) Department
Fort St.George, Chennai.
2. State of Tamilnadu
rep. by Secretary to Government
Personnel Administrative Reforms Department
Fort St.George, Chennai.
3. The Director
Local Fund Audit Department
Kuralagam, IV Floor
Chennai 600 108.
4. Tamilnadu Public Service Commission
rep. by Secretary
Government Estate, Anna Salai
Chennai 600 002.
5. Muhammed Abdul Nasser.G. .. Respondents
W.P.No.6508 of 2008
1.B.Srinivasan
2.U.Senthilpandian
3.S.Shanmugam
4.S.Parimaladevi
5.B.Saraswati
6.A.Tajul Ansari
7.B.M.N.Mujibur
8.C.Sultan Alauddin
9.K.Janarthanan
10.M.Suganya
11.M.Parifathima
12.M.Sugirtha
13.P.Kannan
14.K.Sathyabama
15.V.Umamaheswari
16.D.Jeyaraman
17.A.Kumaran
18.G.Lakshmana Boopathy
19.C.Palanivel
20.R.Kalaiselvan
21.K.Baskarapandian
22.T.Manjula
23.K.Seran
24.R.E.Manogaran
25.V.Srinivasan
26.S.Ramesh
27.R.Gopalakrishnan
28.D.Karvannan
29.V.Srinivasan
30.R.G.Karpagam
31.A.Dhanalakshmi
32.V.Mageswari
33.S.P.Kasthuri
34.R.Jayanthi
35.K.Thilagavathi
36.S.Jamuna
37.N.Velayuthan
38.R.T.Kaarthikeyan
39.R.Subbulakshmi
40.R.Ravikumar
41.M.Gnanasekaran
42.V.Anbuchezhian
43.K.Vasantham
44.S.Krishnamohan
45.A.S.Narayanan
46.B.Sivakumar
47.K.Somasundaram
48.M.Kesima
49.P.Selvakumar
50.S.Anandaraj
51.L.Manoharan
52.V.Parivallal
53.S.Umamaheswari
54.A.Ramesh
55.A.Govindaraj
56.C.Sumathi
57.M.Saravanan
58.G.Pandi
59.R.Rasamanickam
60.P.Suresh
61.K.Suresh Kumar
62.J.Senthil Kumar
63.M.Srinivasan
64.S.Prabakaran
65.A.Erulappa Moorthy
66.M.K.Mohan
67.K.Devipriya
68.P.Anbarasu
69.P.Tamilarasi
70.P.R.Shyamala
71.V.Arivukannan
72.L.Rajini
73.S.Dilli
74.K.Baskaran
75.V.Sathish Kumar
76.A.Raghu
77.R.Kothairaman
78.R.Joe Vimal
79.B.Srinivasan
80.V.Nedunchezhian
81.J.Suganya
82.C.Bharathi
83.P.M.Sundaramurthy
84.Mangai
85.S.Vijaya Annapurani
86.Suchitra.N
87.D.Kalaiarasi
88.S.Susheela Rani
89.R.Renuka
90.K.Arivarasan
91.S.M.Meera Mohideen
92.B.Arun Prakash
93.S.Eswari
94.V.R.Palanivel Rajan
95.T.Shanmugavalli
96.V.Marimuthu
97.R.Somasundaram
98.N.Mahendran
99.A.M.Kalyanasundaram
100.T.Selvi
101.N.Natarajan
102.B.Kalaidasan
103.K.Palaniswamy
104.P.Kumar
105.R.Tamil Selvi
106.T.Selvaraju
107.S.Mahendraverman
108.J.A.Muhammed Yusuf
109.G.Rengalakshmi
110.A.E.Agnel Elangovan .. Petitioners
Vs.
1. State of Tamilnadu
rep. by Secretary to Government
Finance (LF) Department
Fort St.George, Chennai.
2. State of Tamilnadu
rep. by Secretary to Government
Personnel Administrative Reforms Department
Fort St.George, Chennai.
3. The Director
Local Fund Audit Department
Kuralagam, IV Floor
Chennai 600 108.
4. Tamilnadu Public Service Commission
rep. by Secretary
Government Estate, Anna Salai
Chennai 600 002.
5. Muhammed Abdul Nasser.G.
6.K.Revathi
7.C.Manimekalai
8.V.Narayana Moorthy
9.C.Sampooranam
10.P.Parameswari
11.B.Chandrasekaran
12.K.Kumar
13.K.S.Hidhaya Thullah
14.V.Guru Moorthi
15.P.Malar Vizhi
16.V.Rajan
17.M.Durai Swamy
18.K.Rathina Kumar
19.S.Santhana Gopalan
20.E.Jothi
21.K.Rani
22.S.Saradha
23.M.Kanaka Leela Bai
24.S.Arun Josi
25.E.Sankara Subramanian
26.Jayanthilal
27.M.Ravi
28.E.Nagalakshmi
29.M.Pandiselvi
30.S.Velmurugan
31.G.Sukhanya
32.S.Sankaranayaranan
33.R.Vijayalakshmi
34.Nagarajan .. Respondents
(Respondents 6 to 24 impleaded by order
dated 4.8.2009 in M.P.No.1 of 2009 and
respondents 25 to 34 impleaded by order
dated 4.11.2009 in M.P.No.4 of 2009).
PRAYER: Petitions under Article 226 of the Constitution of India for issue of writ of Certiorarified Mandamus as stated therein.
For Petitioners : Mr.N.R.Chandran, Sr.Counsel
in both WPs. for Mr.K.J.Parthasarathy
For Respondents : Mr.R.Murali,
1 to 3 in both WPs. Government Advocate
For 4th Respondent : Mr.K.Surendranath
in both WPs.
For 5th Respondent : Mr.R.Shanmugam, Sr.Counsel
in both WPs. for Dr.Gopinath
For respondents 6 to 16 : Mr.V.Raghavachari
in WP.No.6508 of 2008
For respondents 25 to 34: Mr.R.Thiagarajan, Sr.Counsel
in WP.No.6508 of 2008 for Mr.M.Hidayathullah Khan
ORDER
These writ petitions are filed against the seniority list dated 18.12.2007 published by the third respondent in the writ petitions, the Director of Local Fund Audit Department, alleging that the same has been prepared in violation of Special Rules for Tamil Nadu Local Fund Audit Service Rules (for brevity “the Special Rules”) and that the third respondent has failed to revise and re-fix the seniority in accordance with the Rules despite the objections.
2. In these cases, the fifth respondent is added as a representative of the promotees, whose names are stated in the seniority list in S.Nos.109 to 280 and whose seniority is assailed.
3.1. The petitioners are the successful candidates in the process of recruitment for Combined Subordinate Services Examination-I conducted by the fourth respondent/Tamil Nadu Public Service Commission for various posts, including the post of Assistant Inspector of Local Fund Audit. The recruitment was for the vacancies which arose in the year 1996-1999 and the recruitment process was completed and the petitioners have joined as Assistant Inspectors of Local Fund Audit in the year 2001. The services of the petitioners are governed by the Tamil Nadu State and Subordinate Service Rules (for brevity “the General Rules”).
3.2. In the year 1994-1995, though there were vacancies which were notified by the fourth respondent, the same were subsequently withdrawn. The post of Assistant Inspector is filled by direct recruitment and also by transfer of service from among the holder of posts of Junior Assistants or Steno Typists or Typists in the Local Fund Audit Department or State Trading Scheme Department. The ratio of appointment by way of direct recruitment and recruitment by transfer is 4:1 as per the Special Rules.
3.3. It is the complaint of the petitioners that due to the failure of recruitment in the earlier years, the posts of Assistant Inspectors have been filled up only by transfer of service or temporary officiation from among the holder of posts of Junior Assistants or Steno Typists or Typists in the Local Fund Audit Department and State Trading Scheme Department without following the above said ratio of 4:1. Even though under Rule 39(a)(i) of the General Rules temporary promotions could be made, the seniority has to be fixed only from the date from which such promotees are entitled to fitment in accordance with quota and rota prescribed under the Special Rules.
3.4. It is stated that as per G.O.Ms.No.1129, dated 18.12.1980 only 20% of the vacancies in each year could be reserved for recruitment by transfer or promotion and if the number of candidates qualified for transfer or promotion is more than the vacancies available, they can be considered only in the next year and they ought not to be considered for appointment in the vacancies reserved for direct recruitment. While so, the third respondent has published the impugned seniority list on 18.12.2007, fixing the seniority in the post of Assistant Inspectors in gross violation of quota and rota prescribed under the General and Special Rules.
3.5. It is stated that in the years 1991-1992, 1992-1993 and 1993-1994, when such mistake arose, the third respondent has rectified the mistake and formulated the seniority list in compliance of the Special Rules following the ratio. It is stated that under the impugned list, the candidates recruited by promotion in the year 1991-1994 are shown en masse as S.Nos.1 to 23 and candidates by direct recruitment in the said year 1991-1994 are shown as S.Nos.24 to 108 and after the revision of seniority as per the Rules, the excess promotees are placed after the direct recruits for the year 1991-1994 at S.Nos.109 to 120.
3.6. The direct recruits selected in the recruitment year 1996-1999 were shown in the seniority list in one bunch as S.Nos.281 to 472 below the temporary promotees for the year 1994-1995, who are placed at S.Nos.121-227, for the year 1996-1999, who are placed at S.Nos.228 to 272, and for the year 1999-2000, who are placed at S.Nos.273 to 280. If quota and rota is followed properly, the said direct recruits placed in S.Nos.281 to 472 should have been given higher seniority.
3.7. It is stated that the services of the temporary promotees were not regularised till date as they are only officiating. It is also stated that simply because in a year there was no direct recruitment, it does not mean that the quota and rota rule should be broken.
3.8. After knowing about the seniority list, the petitioners made objections to the third respondent in January, 2008 to revise and re-fix the seniority in accordance with the Special Rules, but there was no reply from the third respondent. However, the third respondent has proceeded to prepare a panel for promotion to the next post of Deputy Inspector. Therefore, the present writ petitions are filed by the direct recruits challenging the impugned seniority list dated 18.12.2007 insofar as it relates to S.Nos.109 to 280 and for a direction to re-fix the seniority in accordance with quota and rota prescribed under the Special Rules and to draw a fresh panel for promotion to the post of Deputy Inspector of Local Fund Audit.
3.9. The challenge is on the grounds that the seniority list published is in violation of Rule 2 of the Special Rules; that it is in violation of Rule 35(aa) of the General Rules; that the seniority list does not specify the quota and rota of 4:1 prescribed under the Special Rules; that the inclusion in the seniority list of the persons who have not been regularised and placing them above the direct recruits on the basis of non recruitment for the year is a gross violation of the Rules and against the law laid down by the Apex Court; and that the respondents ought to have considered that the relevant date for fixing of seniority for the promotees in the absence of direct recruitment is the date on which they become eligible for fitment as per quota and rota prescribed in the Special Rules, apart from many other grounds.
4.1. In the counter affidavit filed by the third respondent, it is stated that the impugned seniority list dated 18.12.2007 was made in accordance with the Special Rules and the General Rules and the petitioners were recruited to the post of Assistant Inspector as per the notification of the fourth respondent dated 24.7.1998 and the estimate sent by the fourth respondent for the years 1996-2000 and they joined in the year 2001 and therefore, their request to revise and re-fix the seniority for the year 1995 is unsustainable.
4.2. It is stated that the seniority list for the post of Assistant Inspector for the years 1991-1992 to 1999-2000 issued on 18.12.2007 is only a provisional list and any modification would be made after consideration of any representation or appeal or review by the Assistant Inspectors under Rule 57 of the General Rules. The petitioners ought to have exhausted their remedy provided under Rule 57 of the General Rules by preferring review or appeal before filing the writ petition and therefore, according to the third respondent, the writ petition is premature. It is stated that any such appeal or review under Rule 57 of the General Rules can be made within two months from the date of receipt of seniority list, in this case after 18.12.2007, and the representations can be disposed of on merits within four months from the date of receipt of the review or appeal.
4.3. It is stated that the service conditions of the officers and staff of Local Fund Audit Department headed by the Director of Local Fund Audit and the Internal Audit Department headed by the Chief Auditor and Chief Internal Auditor of Statutory Boards are composite in nature and they have a common seniority and the third respondent is the cadre controlling authority for both the Local Fund Audit and the Internal Audit Departments.
4.4. It is stated that as against the seniority list dated 18.12.2007 some of the Assistant Inspectors like the petitioners have made representations to the third respondent for redressal of their grievances and some representations were also received by the Chief Auditor and Chief Internal Auditor of Statutory Boards and forwarded to the third respondent for consideration on 15.2.2008 and all the said representations are under consideration of the third respondent for passing appropriate orders on merits.
4.5. It is stated that inasmuch as the petitioners have the right of appeal and review under Rule 57 of the General Rules, without availing the same they have rushed to this Court by filing these writ petitions and therefore, their request to re-fix the seniority for the year 1995 is devoid of merit. It is also stated that the petitioners have not impleaded the persons mentioned in the seniority list at S.Nos.110 to 280 who are necessary parties.
4.6. It is stated that while fixing the seniority list, the third respondent has taken into consideration the government order in G.O.Ms.No.1129, Finance (Funds) Department, dated 18.12.1980 which reiterates the maintenance of ratio of 4:1 between the appointees by direct recruitment and by promotion to the post of Assistant Inspector in Local Fund Audit and Internal Audit Departments, as incorporated in the Special Rules. It is also stated that Rule 2(2) of the Special Rules provides for appointment by direct recruitment and by transfer to category 2, i.e., Assistant Inspectors, in the ratio 4:1.
4.7. It is stated that Rule 35(aa) of the General Rules is applied in fixing inter-se seniority in cases where in a service or class the normal method of recruitment for that particular service or clause is by more than one method of recruitment, unless the individual is reduced to a lower rank by way of punishment. It is stated that Rule 35(aa) of the General Rules and the Special Rules were duly applied in preparing the seniority list for the years 1991-1992 to 1999-2000.
4.8. The estimated vacancies for the post of Assistant Inspector from the year 1991-1992 to 1999-2000 is as follows:
Estimate Year
Estimate of Vacancies
No of Assistant Inspectors
Allotted/to be allotted by TNPSC
Promoted
1991-1992
50
40
10
1992-1993
31
25
6
1993-1994
36
29
7
1994-1995
Estimate of vacancies for Direct Recruitment withdrawn due to subsequent ban on recruitment
105
1995-1996
NIL ESTIMATE
1996-1997
96
77
19
1997-1998
63
50
13
1998-1999
64
51
13
1999-2000
40
32
8
Total
263
210
53
4.9. It is stated that regarding the panel for the year 1994-1995, a tentative estimate of vacancies for direct recruitment and promotees was prepared and sent to the Government by the third respondent intimating that the number of estimated promotions to the post of Assistant Inspector is 110 and clarifications were also sought for from the Government. Likewise, the estimate for direct recruitment of Assistant Inspectors for the year 1994-1995 was 274, out of which the direct recruits were apportioned as 169 and promotees were apportioned as 105.
4.10. It is stated that since there was a ban on recruitment which was made applicable to the Local Fund Audit Department and the Internal Audit Department also, the said estimate of vacancies by direct recruits for the year 1994-1995 stood withdrawn by the third respondent on 24.7.1995 and the same was intimated to the Government. However, the promotion of 105 Assistant Inspectors was resorted to as per the estimate for the year 1994-1995 with reference to large number of vacancies that existed at that time by virtue of the powers vested with the third respondent under Rule 39(a)(i) of the General Rules.
4.11. It is stated that from 1979-1980 onwards the ratio of 4:1 between direct recruits and promotees has been followed scrupulously. However, it is stated that in the year 1991-1992, 12 Assistant Inspectors promoted were in excess of 4:1 ratio and they were included in the seniority list from S.Nos.109-120 as per the clarification of the Government dated 8.2.1993, out of which the fifth respondent, who is placed at S.No.109, belongs to 1991-1994 batch and has joined as Assistant Inspector on 12.8.1993, whose regularisation date was fixed earlier as 26.8.1993 and was revised as 6.10.1995.
4.12. It is stated that the writ petitioners in W.P.Nos.3823 of 2008, who were recruited for the year 1996-2000, have no right to challenge the promotion of the fifth respondent and others. It is stated that the promotees, who were placed in S.Nos.121 to 227, were appointed as Assistant Inspectors against the estimated vacancies for the year 1994-1995 and they have joined in the year 1995 itself, while the petitioners were recruited against the estimated vacancies for the year 1996-1997 to 1999-2000 and appointed as Assistant Inspectors from 5.10.2001, consequent to their allotment by the fourth respondent on 20.8.2001.
4.13. Since in the year 1994-1995 the direct recruitment was withdrawn as per the orders of the Government, the promotees of the year 1995-1996 were drawn and the above 105 Assistant Inspectors were placed in the seniority list subsequent to the promotees in S.Nos.109 to 120. It is stated that the seniority list of Assistant Inspectors from the year 1991-1992 to 1999-2000 was regulated in the following manner:
1
1991-94 promotee Assistant Inspectors
:
23 (1 to 23)
2
1991-94 Direct Recruit Assistant Inspectors
:
94 (85)
(24 to 108)
3
Excess persons promoted during the year 1992-93 and 1993-94 restricted as per 4:1 ratio issued in G.O.Ms.No.1129/Finance (Funds) Department dt. 18.12.1980 reincorporated in Local Fund Audit Subordinate Service Rules reissued in G.O.Ms.No. 890/Finance (Local Fund Audit) dated 28.12.1993
:
12 (109 to 120)
4
1994-95 Assistant Inspectors (Promotees)
:
105 (107)
(121 to 227)
4.14. It was after revocation of the ban order for direct recruitment, the estimated vacancies for the years 1996-1997 to 1999-2000 was arrived at as 210, as follows:
1996-1997
:
77
1997-1998
:
50
1998-1999
:
51
1999-2000
:
32
4.15. It is stated that the eligible candidates from the feeder category, viz., Junior Assistants/Typists were promoted in the ratio of 4:1 in the respective years and such promotees numbering 53, which is within the stipulated quota, were placed behind the promotees of 1994-1995 and the said promotees were placed at S.Nos.228 to 280 as per the Rule 35(aa) of the General Rules.
4.16. All the legal grounds raised by the petitioners are also denied.
5. The fourth respondent had adopted the counter affidavit filed by the third respondent.
6. Based on certain subsequent developments, additional counter affidavit has been filed by the third respondent by referring to the government order in G.O.Ms.No.261, Finance (Local Fund) Department, dated 24.6.2009 and it is stated that based on the said government order, a fresh proposal has been sent by the third respondent on 3.7.2009 to the Government to amend the Special Rules and it is stated that based on the same, the services of employees in the post of Assistant Inspectors whose names find place in the seniority list dated 18.12.2007 from S.Nos.121 to 280 have since been regularised as per the proceedings dated 20.7.2009 of the third respondent and inasmuch as the proposal for amendment of the Special Rules is sent to the Government, the writ petition is devoid of merits.
7. After filing of the said additional counter affidavit, miscellaneous petitions to amend the prayer in these writ petitions were filed and the same were ordered by this Court on 6.10.2009, by which the subsequent G.O.Ms.No.261, Finance (Local Fund) Department, dated 24.6.2009 and the consequential regularisation order issued by the third respondent dated 20.7.2009, regularising the Assistant Inspectors in S.Nos.109 to 280 with retrospective effect, have also been included within the purview of the challenge in these writ petitions.
8.1. Mr.N.R.Chandran, learned Senior Counsel appearing for the petitioners in these case would submit that Rule 35(aa) of the General Rules cannot be applied when the Special Rules prescribes quota of 4:1, by relying upon a Division Bench judgment of this Court in W.P.No.41427 of 2002. It is also his contention that Rule 35(aa) of the General Rules cannot be applied since the promotees are appointed only temporarily and that the said provision is applicable only in respect of regular appointment in respect of a person in service appointed in accordance with Rules and any person who is appointed under Rule 10 or 39 cannot be said to be a person in service.
8.2. It is his contention that the impugned G.O.Ms.No.261, Finance (Local Fund) Department, dated 24.6.2009 passed during the pendency of the writ petitions makes appointment of Junior Assistant and Typist as Assistant Inspector awaiting amendment of Rules and therefore, their appointment should be treated as appointment under Rule 10(a)(i) and such Rule cannot be given retrospective effect from 15.3.1994 and cannot have the effect of a Rule under Article 309 of the Constitution of India. It is his submission that the subsequent order dated 20.7.2009 by treating those persons as persons appointed under Rule 39(a) and provisionally regularizing their service is also not valid. He adds that Rule 23 does not contemplate provisional regularisation and therefore, the promotees cannot get better rights and as long as they are temporary employees, they cannot be placed above the direct recruits for the purpose of promotion and such retrospective regularisation has to be held invalid. Even assuming the provisional regularisation order issued by the third respondent dated 20.7.2009 is valid, it can be given effect to only from 20.7.2009. He would rely upon the judgments in K.Madalaimuthu v. State of Tamil Nadu, AIR 2006 SC 2662 and M.P.Palanisamy and others v. A.Krishnan and others, 2009 SCCL.COM 765 : AIR 2009 SC 2809, apart from the judgment in P.Kadhirvel v. Government of Tamil Nadu, [2009] 4 MLJ 945.
8.3. It is also the submission of the learned Senior Counsel by relying upon the judgment of the Supreme Court in M.Subba Reddy and another v. A.P.State Road Transport Corporation and others, [2004] 6 SCC 729 and U.P.Secretariat U.D.A. Association v. State of UP and Others., [1999] 1 SCC 278 and the judgment of the Division Bench of this Court in W.P.No.41427 of 2002 that mere ban on recruitment is not a ground for the purpose of failure to adhere to the quota rule and that the ban order itself has not stopped any vacancies already notified and it has only directed not to notify future vacancies and thereafter, a notification of the fourth respondent notifying 169 vacancies on 15.3.1994 falls under the direct recruitment quota and that has been withdrawn by the third respondent only to help the promotees.
8.4. He would also submit placing reliance on the judgment of the Supreme Court in Arvinder Singh Bains v. State of Punjab and Others, [2006] 6 SCC 673 that the quota and rota rule must necessarily be reflected in the seniority list and if not the list is liable to be set aside.
8.5. He would submit that because the promotees are not impleaded, that itself cannot be a ground to uphold the seniority list which is illegal. It is stated that when one of the promotees is available, who has been represented, that is sufficient. In this regard he would rely upon the judgment in Union of India v. M.P.Singh, 1990 Suppl SCC 701 and Mohamed Ali,M.N. v. State of Tamil Nadu, etc., 1988 Vol.5 WLR 1.
8.6. Inasmuch as the impugned order has become final order from the averment in the counter affidavit and the alternative remedy is not effective, since the counter affidavit makes it very clear that the third respondent is not going to consider the claim of the petitioners in its proper perspective, these writ petitions are maintainable.
9.1. It is the contention of Mr.R.Shanmugam, learned Senior Counsel for the fifth respondent, who is one of the promotees, that inasmuch as the respondents were promoted and placed at S.Nos.109 to 280 in the year 1994-1995 and the petitioners were recruited by the fourth respondent for the years 1996-2001 pursuant to the notification dated 24.7.1998 and they joined in October, 2001, the petitioners cannot challenge the promotions granted to the said promotees much earlier.
9.2. Further, it is his submission that the petitioners should exhaust their statutory remedy available under Rule 57 of the General Rules and the alternative remedy having not been resorted to, these writ petitions are not maintainable.
9.3. It is his further case that non impleading of persons in S.Nos.110 to 280 is fatal to the case of the petitioners.
9.4. It is also his further case that as per the facts and circumstances of the case the quota rule has been completely followed. The estimated vacancies for the years 1996-1997 to 1999-2000 for direct recruits was 210 and for promotees was 53 and it is in accordance with 4:1 ratio. It is his submission that the petitioners have no cause of action inasmuch as the promotees were promoted long before their appointment into service. Only a person in service can claim seniority and not those who have not even joined and he would refer to the definition of “Recruited Direct” under Rule 2(14) of the General Rules and therefore, according to him, the petitioners have no locus standi to maintain the writ petitions.
9.5. It is his submission that the seniority list dated 18.10.2007 is a provisional list and what was granted was temporary promotion and the petitioners who were recruited in 1996-1997 to 1999-2000 were placed in their appropriate place in the seniority list in S.Nos.281 to 472 and there is no violation of the rules regarding the ratio.
9.6. It is his submission that in the recruitment year 1994-1995 the direct recruits appointed were withdrawn due to the ban order, while the promotion of 105 Assistant Inspectors was resorted as per the estimates and the promotion has been given based on the ratio of 4:1. It is his submission that inasmuch as the Government has passed executive orders in G.O.Ms.No.261, Finance (Local Fund) Department, dated 24.6.2009 and the candidates in the seniority list in S.Nos.121 to 280 have since been regularised in service, the same is in accordance with the Rules and the subsequent government order and the regularisation cannot be challenged by the petitioners for the above said reasons.
9.7. It is his submission that the Government has passed executive orders on 24.6.2009 after the lapse of 14 years and no one has challenged the appointment of 105 Assistant Inspectors since 1995 and therefore, the rulings relied upon by the learned Senior Counsel for the petitioners are not applicable to the facts of the case.
10.1. Mr.R.Thiagarajan, learned Senior Counsel appearing for respondents 25 to 34 in W.P.No.6508 of 2008, who are the promotees joined as Typists and Junior Assistants in 1985-1990 and subsequently promoted as Assistant Inspectors in 1995-1997, would submit that their services have been regularised by order dated 20.7.2009 by virtue of G.O.Ms.No.261, Finance (Local Fund) Department, dated 24.6.2009. It is his submission that on 18.12.2007, the third respondent has published tentative seniority list of Assistant Inspectors among the persons appointed in the year 1991-1992 to 1999-2000 and the respondents were in the seniority list at S.Nos.132, 191, 192, 201, 213, 215, 226, 227, 230 and 246.
10.2. It is his submission that the petitioners have not challenged the Rules to revise the seniority and they have not chosen to implead the parties and therefore, these writ petitions are liable to be dismissed for non joinder of necessary parties.
10.3. He would submit that the writ petitioners were appointed for the year 1996-2000 and joined in 2001 and the respondents were promoted much earlier and as such the petitioners have no locus standi to challenge the promotion of the said respondents, which would unsettle the seniority after the lapse of three years. It is stated that by virtue of the interim stay, the further prospects of the respondents are stalled and the writ petitions are liable to be dismissed, since they are premature and it is his submission that the respondents were fully qualified for promotion.
10.4. It is stated that if only the Government has regularised the services of the respondents immediately after the proposal sent in 1995, the respondents would have been promoted as Deputy Inspectors even prior to joining of the petitioners in 2001 and the same is only due to administrative delay. It is stated that no one has challenged the appointment of these 105 Assistant Inspectors since 1995.
11. Mr.R.Murali, learned Government Advocate appearing for respondents 1 to 3, Mr.K.Surendranath, learned counsel for the fourth respondent and Mr.V.Raghavachari, learned counsel for respondents 6 to 16 in W.P.No.6508 of 2008 have adopted the arguments of the learned Senior Counsel for the respondents, while Mr.V.Raghavachai, learned counsel has insisted that when the petitioners were not even born in the cadre to which the respondents were promoted, they have no locus standi to challenge the promotion by relying upon various rulings.
12. I have heard the learned Senior Counsel for the petitioners as well as the learned Senior Counsel for the respondents, apart from other learned counsel for the respondents, waded through the entire papers and given my anxious thought to the issue involved in this case.
13. In these writ petitions, we are concerned about the seniority list in the post of Assistant Inspectors in the Tamil Nadu Local Fund Audit Department. The service conditions, including the appointment, are governed by the Special Rules. Under the said Special Rules, the post of Assistant Inspector forms part of Category 2 and it contemplates the method of appointment as follows:
“1. By direct recruitment ; or
2 (1) By recruitment by transfer from among the holder of the posts of Junior Assistant and Steno-Typists or Typist in the Local Fund Audit Department and in the State Trading Scheme Department.
(2) The ratio for appointment, by direct recruitment and by recruitment by transfer, to Category 2. Assistant Inspector shall be 4:1″
14. It is not in dispute that the ratio for appointment to the post of Assistant Inspectors between direct recruitment and by transfer from among the holders of the posts of Junior Assistant and Steno-Typists or Typists in the Local Fund Audit Department and in the State Trading Scheme Department is 4:1.
15. Sub-Rule (2) to Rule 2 of the Special Rules, which is as follows, relates to the proportion of appointment, viz., from among the candidates by transfer, which is from the holders of the post of Junior Assistant and the post of Steno-Typist and Typist in the ratio of 2:1.
“Rule 2(2) Provided that appointment by recruitment by transfer shall be made from among the holders of the post of Junior Assistant and the post of Steno-Typist and Typist in the ratio of 2 : 1”
and such appointment by transfer, which is in effect by promotion, is on the grounds of merit and ability, as it is seen in Rule 2(3) of the Special Rules, which is as follows:
“Rule 2(3) Appointment to Category 2. Assistant Inspector, by recruitment by transfer from among the holders of the posts of Junior Assistant and Steno-Typists or Typist, shall be on grounds of merit and ability. Seniority being considered only where merits and ability are approximately equal.”
16. In respect of the said fixation of ratio, the Government issued G.O.Ms.No.1129, Finance (Funds) Department, dated 18.12.1980 taking note of the fact that every year the number of qualified Junior Assistant and Steno-Typists or Typists who are getting promotion is on the increase and that the same may in future result in obstructing the scope for direct recruitment of candidates with higher qualification, which is detrimental to the efficiency of the department. The Government issued the clarification stating that when the number of candidates qualified for promotion in a year is more than the available vacancies, they can be considered only during the next year and they cannot be considered for appointment in the vacancies reserved for direct recruitment or when there are drop-outs or resignations. The operative portion of the government order is as follows:
“i. that the ratio between the appointment by direct recruitment and by promotion to the category of Assistant Inspector may be fixed at 4:1 i.e., 20% of the vacancies in each year alone may be reserved for recruitment by promotion, and
ii. that when the number of candidates qualified for promotion is more than the vacancies available they may be considered for promotion only during the next year and they need not be considered for appointment in the vacancies reserved for Direct recruitment when there are drop-outs or resignations.”
In fact, under the said proposal by the Government, the Government has stated that necessary amendments would be made to the Special Rules. Subsequently, by G.O.Ms.No.890, Finance (Local Fund) Department, dated 28.12.1993, the said Special Rules came to be reissued, of course without change in respect of the method of appointment stated above. The Special Rule, as elicited above, is the consequence of the said proposal made by the Government in the above said government order.
17.1. Before going into the issue raised in the main writ petitions as to the validity or otherwise of the seniority list in respect of S.Nos.109 to 280, it is necessary to consider the subsequent events first, which has culminated into the amendment to the prayer in these writ petitions challenging the subsequently passed G.O.Ms.No.261, Finance (Local Fund) Department, dated 24.6.2009 and the consequential order of the third respondent dated 20.7.2009.
17.2. The respondents in these writ petitions, who were appointed as Assistant Inspectors by transfer from the post of Junior Assistant and Steno-Typist or Typists from the year 1994-1995 to 2006-2007 are 204 in number. As per G.O.Ms.No.417, Personnel and Administrative Reforms Department, dated 1.12.1993, the third respondent has appointed 204 Junior Assistants and Steno-Typists or Typists as Assistant Inspectors and at the request of the third respondent to issue executive order regularising the services of the said 204 persons retrospectively with effect from 15.3.1994 being the crucial date for the panel of Assistant Inspectors for the year 1994-1995, the Government has issued G.O.Ms.No.261, Finance (Local Fund) Department, dated 24.6.2009 pending amendment to the Special Rules. Admittedly, even as on the date of passing of the said G.O.Ms.No.261, Finance (Local Fund) Department, dated 24.6.2009, no amendment has been carried out to the Special Rules.
17.3. As per the said G.O.Ms.No.261, Finance (Local Fund) Department, dated 24.6.2009, it is true that among the Junior Assistants and Typists appointed as Assistant Inspectors by transfer, the inter-se seniority is sought to be fixed by various guidelines, but the said respondents who are appointed by transfer during the above said years and placed in the seniority list, which is challenged by the petitioners, are sought to be posted temporarily under Rule 10(a)(i) of the General Rules as per the revised procedures contemplated under the said government order.
17.4. It is relevant to point out that while the enabling impugned G.O.Ms.No.261, Finance (Local Fund) Department, dated 24.6.2009 contemplates the services of those persons appointed by transfer to be made temporarily under Rule 10(a)(i) of the General Rules, the consequential impugned order of the third respondent dated 20.7.2009, which has been admittedly passed based on the G.O.Ms.No.261, Finance (Local Fund) Department, dated 24.6.2009, proposes to regularise the appointment of those respondents stated to have been temporarily promoted under Rule 39(a)(i) of the General Rules and issue the provisional orders.
17.5. Rule 10(a)(i) of the General Rules, which is as follows, contemplates that when in public interest a situation of exigency arises or there would be undue delay in making such appointment based on the General Rules and the Special Rules, appointments can be made temporarily.
“10.Temporary appointments: a(i) (1) where it is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and there would be undue delay in making such appointment in accordance with these rules and the Special Rules, the appointing authority may temporarily appoint a person, who possesses the qualifications prescribed for the post otherwise than in accordance with the said rules.
Provided that no appointment by direct recruitment under this clause shall be made of any person other than the one sponsored by the Tamil Nadu Public Service Commission from its regular or reserve list of successful candidates to any of the posts with in the purview of the Tamil Nadu
Public Service Commission.
Provided further that appointment by direct recruitment under this clause (1) in respect of posts within the purview of Tamil Nadu Public Service Commission shall be made, only where new posts with new qualifications are created temporarily and where the Tamil Nadu Public Service Commission does not have a regular or reserve list of successful candidates for sponsoring.”
17.6. Apart from the issue which has to be decided in this case, as submitted by the learned Senior Counsel for the petitioners about the maintainability of such appointment under the General Rules when Special Rules are in existence which proposes the appointment by quota and rota rule placing reliance on various judgments of the Supreme Court as well as this Court, it is relevant to point that the said impugned G.O.Ms.No.261, Finance (Local Fund) Department, dated 24.6.2009 has not even chosen to state as to the existence of any public interest or emergency which compelled the third respondent to make such temporary appointments.
17.7. That apart, astonishingly, the consequential order of the third respondent dated 20.7.2009 proceeds to go beyond the enabling G.O.Ms.No.261, Finance (Local Fund) Department, dated 24.6.2009, in attempting to regularise those respondents promoted by way of transfer from the post of Junior Assistants, Steno-Typists, etc. curiously, as follows:
“7) ghh;it (15)?y; Rl;lg;gl;Ls;s murhizapd; mog;gilapy;. 1994?95 kw;Wk; 1996?97 Kjy; 1999?2000 tiuapyhd Mz;LfSf;F btspaplg;gl;l gzpkhWjy; K:yk; bra;ag;gl ntz;oa (Appointment by recruitment by transfer) cjtp Ma;th; gjtp cah;tpw;F fUjpl jahhpf;fg;gl;l njh;e;njhh; bgah; gl;oay;fspy; ,lk; bgw;W bghJ tpjp 39a(1)?d; fPH; Kw;wpYk; jw;fhypfkhf gjtp cah;t[ bra;ag;gl;l cjtp Ma;th;fspd; gzpapid muRf; fojk; vz;/130763 epjp(cep)j; Jiw 1992?4. ehs; 08/02/1993?,y; tH’;fg;gl;l bjspt[iuapd;go cjtp Ma;th; gjtpapy;. jkpH;ehL cs;shl;rp epjpj; jzpf;if rhh;epiyg; gzp tpjpfSf;F (rpwg;g[ tpjpfs;) jpUj;jk; nkw;bfhs;s Kot[ bra;J btspaplg;gl;Ls;s ghh;it 15?,y; Fwpg;gpl;Ls;s eph;thf Mizapd; mog;gilapy; gzp tud;Kiw bra;J jw;fhypf Mizfs; (Provisional Orders) btspaplf; fUjg;gLfpwJ/
,t;thiz jkpH;ehL cs;shl;rp epjpj; jzpf;if rhh;epiyg; gzp tpjpfSf;F (rpwg;g[ tpjpfs;) murpdhy; jpUj;jk; btspapl ghh;it 15?,y; fz;Ls;s murhizapy; eph;thf Mizfs; btspaplg;gl;Ls;sjhYk; ,t;turhizapd; mog;gilapy; jkpH;ehL cs;shl;rp epjpj; jzpf;ifg; rhh;epiyg; gzp (rpwg;g[ tpjpfs;) tpjp 2(2)?f;F jpUj;jk; bra;a fUj;JU murpw;F mDg;gg;gl;Ls;sjhYk; nkw;fz;l tpjpfSf;F murpdhy; jpUj;jk; btspapLtij vjph;nehf;fp ,izg;g[ I Kjy; V tiuapy; Fwpg;gplg;gl;Ls;s cjtp Ma;th;fspd; gzpapid tud;Kiw bra;J jw;fhypfkhf (Provisional Orders) Miz tH’;fpl fUjg;gLfpwJ/”
17.8. In paragraph (7) of the said consequential order of the third respondent, the respondents were stated to have been promoted temporarily as per Rule 39(a)(i) of the General Rules and their services were sought to be provisionally regularised. It is relevant at this stage to refer to Rule 39(a)(i) of the General Rules, which is as follows:
“Rule 39. Temporary promotion (a) (i) Where it is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a higher category in a service or class by promotion from lower category and there would be undue delay in making such promotion in accordance with the rules, the appointing authority may temporarily promote a person, who possesses the qualifications prescribed for the post, otherwise than in accordance with the rules.”
17.9. The said Rule 39(a)(i) of the General Rules also contemplates a temporary promotion in public interest. No public interest is stated either in the government order or in the consequential order of the third respondent, especially when the above said writ petitions are pending challenging the promotion of the said respondents themselves.
17.10. On the factual matrix of the pendency of these writ petitions, wherein a crucial question has been raised by the petitioners about the manner of their promotions saying that the same is against the quota and rota rule, which is a mandatory requirement as per the Special Rules, it is incumbent on the part of the respondents to show some urgent public interest or exigency by situation for the purpose of passing such impugned order. Therefore, there is absolutely no difficulty to conclude that the subsequent government order passed by the Government as well as the consequential order of the third respondent are liable to be set aside irrespective of the fact as to whether the petitioners are going to succeed in the main writ petitions or not.
17.11. By virtue of the subsequent government order and the consequential order of the third respondent stated above, even before this Court takes a decision about the validity or otherwise of the promotion of those respondents to be decided in the light of the Special Rules, the respondents have proceeded hurriedly to pass G.O.Ms.No.261, Finance (Local Fund) Department, dated 24.6.2009 and the consequential order dated 20.7.2009, which can never be said to be a bonafide exercise of powers and therefore, I am of the considered view that the subsequent government order, viz., G.O.Ms.No.261, Finance (Local Fund) Department, dated 24.6.2009 and the consequential order of the third respondent dated 20.7.2009 are to be necessarily set aside in the interest of fairness and justice.
17.12. In K.Madalaimuthu v. State of Tamil Nadu, AIR 2006 SC 2662, while considering about the appointment made under Rules 10(a)(i) of the Tamil Nadu State and Subordinate Services Rules, 1955, the Supreme Court has held that temporary service rendered cannot be counted for reckoning seniority, apart from holding that such persons who are temporarily appointed dehors the rules cannot be said to be in service till such time his appointment is regularised. After referring to a catena of judgments on the issue, the Supreme Court has held as follows:
“24. On a consideration on the submissions made on behalf of the respective parties and the decisions cited on their behalf, the consistent view appears to be the one canvassed on behalf of the appellants, the decisions cited by Mr. Rao have been rendered in the context of Rule 10(a)(i)(1) and the other relevant rules which are also applicable to the facts of the instant case. The law is well established that initial appointment to a post without recourse to the rules of recruitment, an appointment to a service as contemplated under Rule 2(1) of the General Rules, notwithstanding the fact that such appointee is called upon to perform duties of a post borne on the cadre of such service. In fact, Rule 39(c) of the General Rules indicate that a person temporary promoted in terms of Rule 39(a) is required to be replaced as soon as possible by a member of the service who is entitled to the promotion under the rules. It stands to reason that a person who is appointed temporarily to discharge the functions in a particular post without recourse to the recruitment rules, cannot be said to be in service till such time his appointment is regularized. Therefore, it is only from the date on which his services are regularized that such appointee can claim seniority over those appointees subsequently.
25. In the instant case the authorities, on the strength of the several Government Orders giving retrospective effect to the regularization of the promotees, have taken the date of initial appointment of such promotees as the starting point of their seniority. In our view, such a course of action was erroneous and contrary to the well-established principles relating to determination of seniority. In our view, the High Court took an erroneous view in the matter in applying Rule 4 of the General Rules and holding that the period during which the promotees had initially discharged the duties of District Registrars, though appointed under Rule 10(a)(i)(1), was to be counted for determining their seniority. The decision of this Court in the case of L. Chandrakishore Singh, 1999 AIR SCW 3631, relied on by Shri Venkataramani, did not involve the question of persons appointed outside the service as a stop-gap arrangement. The fact situation of the said decision is different from the fact situation of the instant case which finds support from the decisions cited by Mr.Rao.”
17.13. The said judgment was followed with approval by the Apex Court in the recent judgment in M.P.Palanisamy and others v. A.Krishnan and others, 2009 SCCL.COM 765 : AIR 2009 SC 2809. The clinching remark made by the Supreme Court through V.S.Sirpurkar,J. in this regard is an ultimate dictum laid down on this issue. The relevant portion of the said judgment is as follows:
“27. In a recent decision in K. Madalaimuthu and Anr. v. State of T.N. and Ors. reported in AIR 2006 SC 2662, this Court again reiterated the principles of fixation of seniority in case of the persons, who were temporarily appointed under Rule 10(a)(i)(1). This Court relied on the decision in V. Srinivasa Reddy v. Govt. of A.P. reported in AIR 1995 SC 586, as also, State of T.N. v. E. Paripoornam reported in 1992 Supp. (1) SCC 420. Both these cases dealt with Rule 10(a)(i)(1). Distinguishingly, relying upon the case law relied by the respondents, i.e., AIR 1999 SC 3616 L. Chandrakishore Singh v. State of Manipur, this Court came to the conclusion that the High Court had erred in holding that the temporary appointees under Rule 10(a)(i)(1) were entitled to the seniority right from the date of their first appointment and not from their regularization. Though the controversy involved is slightly different, the general principles would undoubtedly apply. We have seen the ruling cited on behalf of the appellants in AIR 2005 SC 3520 Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chennai and Ors. We do not find this case to be relevant. It only deals with the general principle that the statutory authority cannot be permitted to support its order relying on or on the basis of statements made in the affidavit de- hors the order or de-hors the record. We have already indicated that such is not the state of affairs in the present case. The second decision relied upon by the appellants is I.J. Divakar and Ors. v. Government of Andhra Pradesh and Anr. reported in 1982 (3) SCC 341, which suggests that the Government has the power to cancel the recruitment even after TNPSC examination and regularize the candidates appointed under Rule 10(a)(i)(1) for compelling necessity. That may be so. However, the factual situation is entirely different. Such thing has not happened nor is it anybody’s demand.”
17.14. A Division bench of this Court, to which I am a party, in P.Kadhirvel v. Government of Tamil Nadu, [2009] 4 MLJ 945, while referring to Rule 35(aa) of the General Rules, considering the decision in K.Madalaimuthu v. State of Tamil Nadu, AIR 2006 SC 2662 has held as follows:
“23. In K.Madalaimuthi and Another v. State of Tamil Nadu and Others (2006) SCC (L&S) 1451, it is held thus:
“24. On a consideration of the submissions made on behalf of the respective parties and the decisions cited on their behalf, the consistent view appears to be the one canvassed on behalf of the appellants. The decisions cited by Mr.Rao have been rendered in the context of Rule 10(a)(i)(1) and the other relevant rules which are also applicable to the facts of the instant case. Apart from the above, the law is well settled that initial appointment to a post without recourse to the rules of recruitment is not an appointment to a service as contemplated under Rule 2(1) of the General Rules, notwithstanding the fact that such appointee is called upon to perform duties of a post borne on the cadre of such service. In fact, Rule 39(c) of the General Rules indicates that a person temporarily promoted in terms of Rule 39(a) is required to be replaced as soon as possible by a member of the service who is entitled to the promotion under the Rules. It stands to reason that a person who is appointed temporarily to discharge the functions in a particular post without recourse to the recruitment rules, cannot be said to be in service till such time as his appointment is regularized. It therefore, follows that it is only from the date on which his services are regularized that such appointee can could his seniority in the cadre.”
In the said case, it is held that a person who is appointed temporarily to discharge the function in a particular post without recourse to the recruitment rules, cannot be said to be in service till such time his appointment is regularized. It therefore follows that it is only from the date on which his services are regularized that such appointee can count his seniority in the cadre. If that be so, there is no difficulty in holding that in order to determine seniority, the date of regularization of services of the appellant can be counted. In this case, regularization of the appellant was made on 21.8.1974 whereas, the regularization of Dr.Venkatasamy was on 30.6.1975.”
17.15. Therefore, it is clear that when the issue as to whether the appointment of these respondents by transfer by way of promotion is in accordance with quota rule prescribed under the Special Rules is yet to be decided, the impugned G.O.Ms.No.261, Finance (Local Fund) Department, dated 24.6.2009, by giving retrospective regularisation from 15.3.1994, cannot be accepted as a proper and appropriate stand which the respondents can be permitted to take. As long as the said respondents are admittedly deemed to be temporarily promoted even as per the impugned government orders and the consequential order of the third respondent, the question of regularising their services at this stage does not arise.
17.16. For all these reasons, the impugned G.O.Ms.No.261, Finance (Local Fund) Department, dated 24.6.2009 and the consequential order of the third respondent dated 20.7.2009 are liable to be set aside and the same are accordingly, set aside.
18.1. Now, coming to the main issue involved in these cases about the validity of the seniority list insofar as it relates to S.Nos.109 to 280, as submitted by the learned Senior Counsel for the petitioners, the petitioners have no objection to the seniority list annexed to the impugned order of the third respondent dated 18.12.2007 and there is no dispute regarding the promotion of the promotees who are placed in S.Nos.1 to 23 and also S.Nos.24 to 108 and the dispute is relating the promotees placed at S.Nos.109 to 120 and in respect of these 12 promotees of the year 1991-1994, the allegation is that they were temporarily promoted in excess of the quota rule.
18.2. The fact that there has been a violation of following of quota rule at 4:1 in respect of these 12 promotees is admitted by the third respondent in the proceedings dated 18.12.2007. In this regard, it is relevant to reproduce the portion of the impugned order, which is as follows:
“,e;epiyapy;. nkny gj;jp 2 kw;Wk; 3?,y; Fwpg;gplg;gl;Ls;s epge;jidfspd; mog;gilapYk;. ,t;thz;LfSf;fhd njh;e;njhh; bgah; gl;oay; vz;zpf;ifapd;go neuo epakdk; kw;Wk; gjtp cah;t[ K:yk; epakdk; bgWnthh; vz;zpf;if 4/;1 tpfpjhr;rhuj;jpy; bghUj;jg;gl;Lk;. ghh;it xd;wpy; fhQqk; muRf; fojj;jpy; tH’;fg;gl;l bjspt[iufspd;goa[k; nkny gj;jp 4?,y; Fwpg;gpl;lthW vjph;ghuh epfH;t[fSf;bfd 1991?92. 1992?93 kw;Wk; 1993?94 ?Mk; Mz;LfSf;fhd njh;;;;;;e;njhh; bgah; gl;oay;fspy;; nrh;f;fg;gl;L gjtp cah;t[ tH’;fp 4/;1 vd;w tpfpjhr;rhuj;jpw;F kpifahf gzpakh;j;jg;gl;l fPnHFwpg;gpl;Ls;s 12 (gd;dpuz;L) cjtp Ma;thsh;fspd; gzptud;KiwahdJ bghJtpjp 39(f)(i) kw;Wk; 35(aa)?f;F ,z’;f. mikahjjhy;. ghh;it ,uz;L Kjy; ehd;F tiu Fwpg;gpl;Ls;s Fwpg;ghizfspy; btspaplg;gl;l gzptud;Kiwehs; khw;wk; bra;ag;gl;L. gpd;tUkhW jpUj;jpaikj;J Miz gpwg;gpf;fg;gLfpwJ/
t/ vz;
cjtp Ma;th; bgah; jpU-jpUkjp
cjtp Ma;th; gjtpapy; gzp nrh;e;j ehs;
cjtp Ma;th; gjtpapy; Vw;fdnt gzptud;Kiw bra;ag;gl;l ehs;
jw;nghJ cjtp Ma;th; gjtpapy; jpUj;jpaikf;fg;gLk; gzptud;Kiw ehs;
1
KfkJ mg;Jy; ehrh;/$p
12-08-93
26-08-93
06-10-95
2
gj;khrpdp/Mh;
01-12-93
01-12-93
06-10-95
3
fhjh; ghl;c&h/nf (kiwt[)
03-01-94
03-01-94
06-10-95
4
re;jpukzp/b$
09-12-93
03-01-94
06-10-95
5
hpl;lhk;khs;/vg; (jd;tpUg;g xa;t[)
09-12-93
03-01-94
06-10-95
6
bld;dprd;/b$
10-12-93
03-01-94
06-10-95
7
fPjh/V
15-12-93
03-01-94
06-10-95
8
tp$ayT&;kp/Mh;
17-12-93
03-01-94
06-10-95
9
nutjp/v!;
28-12-93
03-01-94
06-10-95
10
gh!;fud;/tp
27-12-93
03-01-94
06-10-95
11
uhn$!;thp/tp
16-12-93
03-01-94
06-10-95
12
Rg;gpukzpad;/o/v!; (jd;tpUg;g xa;t[)
09-12-93
03-01-94
06-10-95
It is, therefore, clear that there has been a violation of quota rule in effecting promotions.
18.3. Again, in the said portion of the impugned order, the third respondent has chosen to refer to Rules 35(aa) and 39(f)(i) of the General Rules, which are as follows:
“Rule 35(aa): The seniority of a person in a service, class, category or grade shall, where the normal method of recruitment to that service, class, category or grade is by more than one method of recruitment, unless the individual has been reduced to a lower rank as a punishment, be determined with reference to the date on which he is appointed to the services, class, category or grade;
Provided that where the junior appointed by a particular method or recruitment happens to be appointed to a service, class, category or grade, earlier than the senior appointed by the same method of recruitment, the senior shall be deemed to have been appointed to the service, class, category or grade on the same day on which the junior was so appointed:
Provided further that the benefit of the above proviso shall be available to the senior only for the purpose of fixing inter-se-seniority:
Provided also that where persons appointed by more than one method of recruitment are appointed or deemed to have been appointed to the service, class, category or grade on the same day, their inter-se-seniority shall be decided with reference to their age.”
“Rule 39. Temporary Promotion.-
(a) to (e) ***
(f) (i) A person promoted under sub-rule (a) or (d) shall commence his probation if any, in such category either from the date of his temporary promotion or from such subsequent date as the appointing authority may determine;
Provided that on the date so determined, the person possesses all the qualifications prescribed for promotion to the service, class or category, as the case may be.”
On the face of it, the reference in the impugned seniority list that the said earlier promotion is against the General Rules and therefore, revision made is not sustainable, since quota and rota is fixed by the Special Rules stated above. That apart, it is not known as to whether any fresh notice was issued by giving opportunity to the parties concerned while making such revision in the impugned seniority list.
18.4. It was held in M.Subba Reddy and another v. A.P.State Road Transport Corporation and others, [2004] 6 SCC 729 that mere inaction of the Government or imposing a ban on direct recruitment cannot be held as if the quota rule has broken down. By referring to an earlier judgment of the Supreme Court in A.N.Sehgal v. Raje Ram Sheoram, 1992 Supp (1) SCC 304, the Supreme Court has held as follows:
“A direct recruit on promotion within his quota, though later to the promotee is interposed in between the periods and interjects the promotees seniority; he snaps the links in the chain of continuity and steals a march over the promotee. It has been further held that the rule of quota is a statutory rule and must be strictly implemented. The result of pushing down the promotees may work hardship but it is unavoidable as it would otherwise nullify the statutory rules. In the case of U.P. Secretariat U.D.A. Assn., [1999] 1 SCC 278 it has been held by this Court that mere inaction on the part of the Government cannot be made a ground to contend that the quota rule has broken down. In the present case, in the absence of direct recruitment, the appellants could not have got seniority over direct recruits. Where there is inaction on the part of the Government or employer or imposed ban on direct recruitment in filling up the posts meant for direct recruits, it cannot be held that the quota has broken down.”
18.5. In fact, the necessity to follow quota rule was earlier asserted by the Supreme Court in U.P.Secretariat U.D.A. Association v. State of UP and Others., [1999] 1 SCC 278, wherein it was held as follows:
“2. The above reasoning is not correct for the reason that during the relevant period neither direct recruitment nor promotions were made in accordance with the Rules. As a consequence, since the promotees have been continuously officiating on the posts they are entitled to be put back to the date from which they have been continuously officiating on the ground that the rule of quota has broken down. We find no force in the contention. From the judgment of the Constitution Bench of this Court in Direct Recruit Class II Engineering Officers Association v. State of Maharashtra, [1990] 2 SCC 715 it is now settled law that merely because temporary appointment or promotion came to be made, seniority cannot be counted from the date of officiation except when the appointment was made in accordance with rules. Though appointment is temporary, if it was made in accordance with rules and to a substantive vacancy, seniority will be counted from the date of temporary promotion. Necessarily, the quota and rota require to be maintained so as to give effect to the object envisaged under the Rules. Mere inaction cannot be made the ground to contend that the quota rule was broken down. It is not in dispute that appointments have been made in officiating capacity against the vacancies reserved for direct recruitment though no recruitment had taken place. They are not according to the Rules and within the quota. The Division Bench, therefore, has rightly held that the direct recruit is to be treated from the date on which he actually joined the service, though vacancies did exist prior to that. As a consequence, the promotees are also required to be fitted into the service from the date when they are entitled to fitment in accordance with quota and rota prescribed under the Rules. The Division Bench, therefore, has rightly declined to grant the relief to the petitioners.”
18.6. Again, it was held by the Supreme Court in Arvinder Singh Bains v. State of Punjab and Others, [2006] 6 SCC 673 that when the Rule provides for determination of seniority on quota and rota basis, it has to necessarily reflect in the seniority list and the seniority list which is prepared in violation should be rejected. While construing the provisions of the Punjab Civil Services (Executive Branch) (Class I) Rules which provides for a quota rule, it was held as follows:
“39. Actual appointment is by virtue of Rule 18 only which says that first and thereafter every alternative vacancy shall be filled up by Register B candidates. In other words, the first officer to be appointed has to be from Register B. This position is also fortified by Rule 24(5) (unamended), the plain reading of which reveals that reference point is once again the candidate from Register B. In para 5(1) of the counter-affidavit, the Government has also admitted that direct recruits have precedence over others. Such precedence has to be reflected in the matter of seniority also. Even otherwise the direct recruits can never be senior to promotees if date of appointment is made the sole criterion in determining the seniority as their process of selection is always lengthier than the promotees. It is in view of this, and to rule out any discrimination/arbitrariness that the roster under Rule 18 has been prescribed which has to be read with Rule 21 in determining the seniority. Making the date of joining as the basis of determining seniority would have led to discretion in the hands of the Government and there would have been a possibility of misuse. It is to avoid this that a roster has been prescribed in the Rules for fixing seniority. This Court held that it is mandatory to apply rota and quota in determining seniority where the same is provided for under the Rules as held by this Court in Mervyn Coutindo v. Collector of Customs, [1966] 3 SCR 600:
This brings us back to the circular of 1959, and the main question in that connection is the meaning to be assigned to the words seniority determined accordingly, in the explanation to Principle 6 relating to relative seniority of direct recruits and promotees. As we read these words, their plain meaning is that seniority as between direct recruits and promotees should be determined in accordance with the roster, which has also been specified, namely, one promotee followed by one direct recruit and so on. Where therefore recruitment to a cadre is from two sources, namely, direct recruits and promotees and rotational system is in force, seniority has to be fixed as provided in the explanation by alternately fixing a promotee and a direct recruit in the seniority list. We do not see any violation of the principle of equality of opportunity enshrined in Article 16(1) by following the rotational system of fixing seniority in a cadre half of which consists of direct recruits and the other half of promotees, and the rotational system by itself working in this way cannot be said to deny equality of opportunity in government service.
“59. We have also referred to the decisions rendered by this Court. This Court said rota and quota must necessarily be reflected in the seniority list and any seniority list prepared in violation of rota and quota is bound to be negated. The action of the respondents in determining the seniority is clearly in total disregard of rota-quota rule prescribed in Rule 18 of the 1976 Rules. The action is, therefore, clearly contrary to the law laid down by this Court. Thus, we hold:
1. that the action of the State is contrary to the 1976 Rules;
2. the seniority under the 1976 Rules must be based on a collective interpretation of Rule 18 and Rule 21 of the 1976 Rules;
3. the action of the authorities is negation of Rule 18 of the 1976 Rules in determining the seniority by the impugned order. Since the action is contrary to law laid down by this Court, we have no hesitation in allowing the appeal and grant the relief as prayed for by the appellant.
18.7. While it is true that the quota rule has to be followed in the seniority list and if it is not reflected in the seniority list, the list has to be interfered with by the judicial forum, it is the case of the respondents that the selection of the petitioners was between 1996-2000 and they joined in 2001, whereas many of the respondents, especially who are situated at S.Nos.109 to 280, have joined much before in the promoted post of Assistant Inspectors between 1995-1997 and therefore, the petitioners cannot have any locus standi to challenge the impugned seniority list dated 18.12.2007.
18.8. It is also true that in one of the latest judgments in State of Jammu and Kashmir v. Javed Iqbal Balwan, 2009 AIR SCW 2467, the Supreme Court has held that the direct recruits can claim seniority only from the date of their regular appointment and they cannot claim seniority from the date when they were not born in the service, as follows:
“20. We see no infirmity in the decision taken by the State Government and we find the submissions of the learned Advocate General well founded. The impugned directions of the High Court are clearly contrary to the decision of this Court in a case coming from Jammu and Kashmir itself in Suraj Parkash Gupta v. State of J&K, AIR 2000 SC 2386. We find that among the large number of decisions referred by it, the decision in Suraj Parkash Gupta was also noticed by the High Court, at more than one place, in its judgment coming under appeal but the High Court referred to and relied upon the decision on the issue of regularisation of service of the departmental promotees on the post of Tahsildar in the State Revenue (Gazetted) Service. Strangely the High Court completely overlooked the decision on the point of antedating the seniority of the direct recruits. It may be noted that in AIR para 17 of the decision in Suraj Parkash Gupta5 this Court had framed one of the points arising for consideration as follows:
(4) Whether the direct recruits could claim a retrospective date of recruitment from the date on which the post in direct recruitment was available, even though the direct recruit was not appointed by that date and was appointed long thereafter?
21. This Court answered the question in paragraphs 78 and 79 of the judgment in the following terms:
Point 4
Direct recruits cannot claim appointment from date of vacancy in quota before their selection
78. We have next to refer to one other contention raised by the respondent direct recruits. They claimed that the direct recruitment appointment can be antedated from the date of occurrence of a vacancy in the direct recruitment quota, even if on that date the said person was not directly recruited. It was submitted that if the promotees occupied the quota belonging to direct recruits they had to be pushed down, whenever direct recruitment was made. Once they were so pushed down, even if the direct recruit came later, he should be put in the direct recruit slot from the date on which such a slot was available under the direct recruitment quota.
79. This contention, in our view, cannot be accepted. The reason as to why this argument is wrong is that in service jurisprudence, a direct recruit can claim seniority only from the date of his regular appointment. He cannot claim seniority from a date when he was not borne in the service. This principle is well settled. In N.K. Chauhan v. State of Gujarat, [1977] 1 SCC 308, Krishna Iyer, J. stated:
“Later direct recruits cannot claim deemed dates of appointment for seniority with effect from the time when direct recruitment vacancy arose. Seniority will depend upon length of service.
“Again, in A. Janardhana v. Union of India, [1983] 2 SCR 936, it was held that a later direct recruit cannot claim seniority from a date before his birth in the service or when he was in school or college. Similarly it was pointed out in A.N. Pathak v. Secy. to the Govt., 1987 Suppl. SCC 763 that slots cannot be kept reserved for direct recruits for retrospective appointments.
Had the High Court noticed the above passage in Suraj Parkash Gupta (supra) it would not have fallen into error and made the impugned directions.”
18.9. However, in the counter affidavit filed on behalf of the respondents, it is stated that while under Rule 57 of the General Rules an appeal or review can be filed to the authority concerned, it is specifically admitted that the petitioners as well as the aggrieved Assistant Inspectors have made representations to the third respondent for redressal of their grievances in respect of the impugned seniority list to place them in appropriate places and the said representations would be considered in accordance with Rule 57 of the General Rules. The relevant portion of the counter affidavit is as follows:
“31. With regard to the averments made in Para 12 of the Affidavit, it is submitted that the representations from the petitioners as well as from the aggrieved Assistant Inspectors have been received by the third respondent for redressal of their grievances to place them in the seniority list at appropriate place. The order of seniority list was issued by the third respondent on 18.12.2007 and as per rule 57 of the General Rules of the Tamil Nadu State and Subordinate Services, the aggrieved persons are entitled to make an appeal or seek review of the order within two months from the date of receipt of the said order which can be disposed of within four months from the date of receipt of their representations. These petitions will be considered in accordance with the rules and disposed of within the statutory time limit prescribed under Rule 57 ibid. Therefore, it is submitted that the petitioners have acted in haste and approached this Hon’ble Court without exhausting the avenues available to them under the rules. Hence the petition is premature and deserves dismissal.”
18.10. Rule 57 of the General Rules, which is referred to above, is as follows:
“Rule 57. Appeal or Review:(a) Where no specific provision for appeal or review is made in these Rules, or in the Special Rules against any order passed under the said rules for redressal of grievances, an appeal or review, as the case may be, shall lie, to the authority to which an appeal or review petition would lie against an order of dismissal;
(b) An appeal or review under sub-rule (a) shall be preferred within two months from the date of receipt of the orders by the appellant on the review petitioner, as the case may be;
(c) Every appeal or review under sub-rules (a) Shall be disposed of within four months from the date of the receipt of the appeal or review petition.
(d) The appellate or reviewing authority may issue interim directions as it deems fit, pending final decision thereon in order to avoid any irreparable loss to the appellant or review petitioner or to avoid administrative inconvenience.”
18.11. It is common knowledge that review lies to the third respondent, being the authority who has passed the impugned order. It is also seen that representations have been made in the form of review to the third respondent during January, 2008, which is well within the time stipulated even by the General Rules and by virtue of the interim order there has been a direction that the selected panel shall not be published and the said order is continued. Therefore, I am of the considered view that when on the face of it the instance of violation of quota rule has been made out and in respect of some cases, the third respondent in the impugned order itself has admitted such violation, in the interest of justice, the third respondent should be directed to consider the representations filed by the petitioners and other affected parties and after considering in detail the grievances of the petitioners as well as the other affected parties, final orders should be passed and until such orders are passed the impugned seniority list, which has been directed to be not published as per the interim order of the Court, should be kept in abeyance.
19. For the reasons aforesaid, these writ petitions stand disposed with the following directions:
(i) the impugned G.O.Ms.No.261, Finance (Local Fund) Department, dated 24.6.2009 and the consequential temporary regularisation order dated 20.7.2009 in respect of S.Nos.109 to 280 of the impugned seniority list stand quashed;
(ii) since representations as admitted in paragraph (31) of the counter affidavit have already been made, it is open to any of the petitioners or the respondents or affected parties to make fresh representations within ten days from the date of receipt of a copy of this order and after the said time stipulated, the third respondent shall treat those representations as review petitions along with the applications already made in January, 2008 and pass appropriate orders, after hearing all parties concerned, in accordance with law within a period of four months thereafter; and
(iii) till the third respondent passes such final orders, the impugned seniority list shall not be given effect to.
No costs. Consequently, M.P.Nos.1 to 4 in W.P.No.3823 of 2008 and M.P.Nos.2 to 5 in W.P.No.6508 of 2008 are closed.
26.2.2010
Index : Yes
Internet : Yes
sasi
To:
1. The Secretary to Government
State of Tamilnadu
Finance (LF) Department
Fort St.George, Chennai.
2. The Secretary to Government
State of Tamilnadu
Personnel Administrative Reforms Department
Fort St.George, Chennai.
3. The Director
Local Fund Audit Department
Kuralagam, IV Floor
Chennai 600 108.
4. The Secretary
Tamilnadu Public Service Commission
Government Estate, Anna Salai
Chennai 600 002.
P.JYOTHIMANI,J.
[sasi]
W.P.Nos.3823 and 6508 of 2008
26.2.2010