Madras High Court
Sathya Kumar vs The Director Of Fire Services on 25 November, 2010
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25/11/2010
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.(MD)NOs.8290 of 2008
W.P.(MD)NOs.8291 of 2008
W.P.(MD)NOs.8292 of 2008
W.P.(MD)NOs.8293 of 2008
W.P.(MD)NOs.8294 of 2008
W.P.(MD)NOs.8295 of 2008
and
M.P.(MD)Nos.1,1,1,1,1,1,2,2,2,2,2 and 2 of 2008,1,1,1,1 and 1 of 2010
Sathya Kumar .. Petitioner in
W.P.(MD)No.8290 of 2008
M.Balasubramaniam .. Petitioner in
W.P.(MD)No.8291 of 2008
P.Sathiya Keerthi .. Petitioner in
W.P.(MD)No.8292 of 2008
M.Magalingamoorthy .. Petitioner in
W.P.(MD)No.8293 of 2008
B.Saravana Babu .. Petitioner in
W.P.(MD)No.8294 of 2008
P.Pulugandi .. Petitioner in
W.P.(MD)No.8295 of 2008
vs
1.The Director of Fire Services,
Directorate of Fire Services & Rescue
Department,
Egmore,
Chennai-600 008.
2.R.M.Abdul Bari
3.T.Venkatramanan
4.N.Loghidhass
5.S.Saravanan
6.C.Murugesan
7.P.Murugan
8.T.Mugundhan
9.K.Hakkeem Batsha .. Respondents in
all writ petitions
These writ petitions have been preferred under Article 226 of the Constitution
of India praying for the issue of a writ of certiorarified mandamus to call for
the records relating to the impugned memorandum bearing Na.Ka.No.6488/Aa1/2008,
dated 22.07.2008 issued by the first respondent, quash the same insofar as it
relates to respondents 2 to 9 herein and consequently, to direct the first
respondent to consider the petitioner for being promoted to the post of
Assistant Divisional Fire Officer.
!For Petitioner ... Mr.G.R.Swaminathan
^For Respondents ... Mr.S.C.Herold Singh, GA for R-1
Mr.Veerakathiravan for RR2 to 9
- - - -
:COMMON ORDER
These writ petitions are filed by the petitioners seeking to challenge an order, dated 22.7.2008 passed by the first respondent and to set aside the same insofar as it relates to respondents 2 to 9 and for a consequential direction to consider the petitioners for promotion to the post of Assistant Divisional Fire Officer.
2.Notice of motion was ordered in these writ petitions on 17.9.2008. In the applications for interim relief, no orders were passed. While the first respondent had filed identical counter affidavits, dated Nil (April, 2010), the contesting respondents have not filed any reply.
3.It is the case of the petitioners that they were selected by the Tamil Nadu Public Service Commission (for short TNPSC) and appointed as Station Fire Officers on probation by an order dated 21.5.2001. The Controller of Examinations of the TNPSC by a communication, dated 14.9.2000 to the first respondent, had sent a list of selected candidates. The list was arranged on the basis of 200 point communal roster. The following is the table showing the number of writ petition, name of petitioners and respondents and their marks secured in the examination and the rank allotted to them by the TNPSC:
W.P.No. Petitioner's name Marks secured Rank (Sl.No.) 8290 of 2008 Sathya Kumar 872 79 8291 of 2008 M.Balasubramaniam 902 19 8292 of 2008 P.Sathiya Keerthi 863 103 8293 of 2008 M.Magalingamoorthy 902 30 8294 of 2008 B.Saravana Babu 902 24 8295 of 2008 P.Pulugandi 868 87 Respondents' name R.M.Abdul Bari 857 2 T.Venkatramanan Not available (NA) 3 N.Loghidhass NA 4 S.Saravanan NA 6 C.Murugesan NA 8 P.Murugan NA 9 T.Mugundhan NA 10 K.Hakkeem Batsha NA 12
4.Therefore, it was contended that the intention cannot be to rank the meritorious candidates lower in the list and show the less meritorious candidates higher in the list though they belonged to the same communal category. The petitioners protesting against the same, sent representations to the first respondent and requested them to prepare a proper seniority list as per the selection list by assigning appropriate rank with marks secured by them in the selection list.
5.In the counter affidavits filed by the first respondent, it was claimed that the TNPSC is a recruitment agency, which had approved the list of candidates fit for appointment to the post of Station Officer in Fire and Rescue Services Department. Based on the approved list released by the TNPSC, the first respondent issued appointment orders. The first respondent had taken necessary action for preparing the panel for the post of Assistant Divisional Officers. The seniority of the Station Officer was forwarded as per Rule 4 of the Tamil Nadu State and Subordinate Services Rules, which reads as follows:
"Part II-GENERAL RULES:
4.Approved Candidates :
a)All first appointments to a service or class or category or grade thereof State or Subordinate, whether by direct recruitment or by recruitment by transfer or by promotion, shall be made by the appointing authority from a list of approved candidates. Such list shall be prepared in the prescribed manner by the appointing authority or any other authority empowered in the Special Rules in that behalf and shall be published in the Tamil Nadu Government Gazette in respect of appointments to State Services and in the Notice Board in the Office of the appointing authority in respect of appointments to subordinate services.
The list shall also be communicated to all persons concerned by Registered Post whose names are found in the list as well as to persons senior to the Junior most person included in the list whose names have not been included in the list. Where the candidates in such list are arranged in their order of preference appointments to the service shall be made in such order."
6.Therefore, as per the said rule, it is claimed that the seniority list was prepared. According to the first respondent, the seniority for promotion will be as per the approved list of the TNPSC. The first respondent was not responsible for the dispute regarding the marks and meritorious status of the petitioners and that the list prepared and approved by the TNPSC is in order.
7.Mr.G.R.Swaminathan, learned counsel appearing for the petitioners placed reliance upon a judgment of the Supreme Court in Ajit Singh II v. State of Punjab reported in (1999) 7 SCC 209. Reliance was placed upon the following passage found in paragraph 77 of the said judgment, which reads as follows:
"Our conclusions on Points (1) and (2)
77.We, therefore, hold that the roster-point promotees (reserved category) cannot count their seniority in the promoted category from the date of their continuous officiation in the promoted post, - vis-.-vis the general candidates who were senior to them in the lower category and who were later promoted. On the other hand, the senior general candidate at the lower level, if he reaches the promotional level later but before the further promotion of the reserved candidate - he will have to be treated as senior, at the promotional level, to the reserved candidate even if the reserved candidate was earlier promoted to that level. We shall explain this further under Point 3. We also hold that Virpal2 and Ajit Singh1 have been correctly decided and that Jagdish Lal3 is not correctly decided. Points 1 and 2 are decided accordingly."
8.The learned counsel further placed reliance upon an another judgment of the Supreme Court in Bimlesh Tanwar v. State of Haryana reported in (2003) 5 SCC
604. He relied upon the following passages found in paragraphs 33 to 35 and 40 from the said judgment, which are as follows:
"33.The question as to whether the determination of inter se seniority would depend upon the filling up of the vacancies so far as the reserved categories are concerned, having regard to the roster points, in our opinion, is no longer res integra.
34.In Ajit Singh (II) v. State of Punjab5 a five-Judge Bench of this Court has laid down the law in the following terms: (SCC pp. 233-34, paras 40-42) "40. It must be noted that whenever a reserved candidate goes for recruitment at the initial level (say Level 1), he is not going through the normal process of selection which is applied to a general candidate but gets appointment to a post reserved for his group. That is what is meant by 'reservation'. That is the effect of 'reservation'.
41. Now in a case where the reserved candidate has not opted to contest on his merit but has opted for the reserved post, if a roster is set at Level 1 for promotion of the reserved candidate at various roster points to Level 2, the reserved candidate, if he is otherwise at the end of the merit list, goes to Level 2 without competing with general candidates and he goes up by a large number of places. In a roster with 100 places, if the roster points are 8, 16, 24 etc. at each of these points the reserved candidate if he is at the end of the merit list, gets promotion to Level 2 by sidestepping several general candidates. That is the effect of the roster-point promotion.
42. It deserves to be noticed that the roster points fixed at Level 1 are not intended to determine any seniority at Level 1 between general candidates and the reserved candidates. This aspect we shall consider again when we come to Mervyn Continho v. Collector of Customs8 lower down. The roster point merely becomes operative whenever a vacancy reserved at Level 2 becomes available. Once such vacancies are all filled, the roster has worked itself out. Thereafter other reserved candidates can be promoted only when a vacancy at the reserved points already filled arises. That was what was decided in R.K. Sabharwal v. State of Punjab3."
35.In Ajit Singh (II)5 the decision of this Court in R.K. Sabharwal case3 has, thus, been explained.
.....
40.An affirmative action in terms of Article 16(4) of the Constitution is meant for providing a representation of a class of citizenry who are socially or economically backward. Article 16 of the Constitution of India is applicable in the case of an appointment. It does not speak of fixation of seniority. Seniority is, thus, not to be fixed in terms of the roster points. If that is done, the rule of affirmative action would be extended which would strictly not be in consonance of the constitutional schemes. We are of the opinion that the decision in P.S. Ghalaut9 does not lay down a good law."
9.Therefore, the learned counsel submitted that in the light of the binding precedents of the Supreme Court, the first respondent's treating the selection list by the TNPSC virtually as a ranking list-cum-seniority list is wholly illegal. The contentions raised by the learned counsel for the petitioners are well founded. The learned Government Advocate is unable to counter the same.
10.Mr.Veerakathiravan, learned counsel for respondents 2 to 9 merely stated that the list circulated by the TNPSC is practically a seniority list for all purposes. The roster points are determined as per 200 point roster in terms of Rule 22 of the Tamil Nadu State and Subordinate Services Rules and does not require any alteration.
11.In this context, it is necessary to refer to a latest judgment of the Supreme Court in Union of India Vs. Ramesh Ram and others reported in 2010 (7) SCC 234, wherein in paragraph 32, it was observed as follows:
"32....In this respect, a reserved category candidate who has qualified as part of the general list should not be disadvantaged by being assigned to a lower service against the vacancies in the general category especially because if he had availed the benefit of his reserved category status, he would have got a service of a higher preference......"
12.If these principles are applied, then the first respondent has completely misdirected himself in treating the select list of TNPSC virtually the rank list and in turn as the seniority list. By this process, the meritorious reserved candidate (MRC) was placed lower as general term candidate and less meritorious reserved category had found himself higher in the ranking list by virtue of the roster point. The first respondent had not understood the fact that the roster point will not automatically become either the seniority list or the rank list.
13.In the light of the above, the impugned order passed by the first respondent will stand set aside. The first respondent is directed to prepare the ranking list as well as appropriate seniority list in consonance with the principles laid down in the above decision. This exercise shall be carried out within a period of eight weeks from the date of receipt of this order. Accordingly, all writ petitions will stand allowed. No costs. Consequently, connected miscellaneous petitions stand closed.
vvk To The Director of Fire Services, Directorate of Fire Services & Rescue Department, Egmore, Chennai-600 008.