Madras High Court
A. Sridhar vs The Government Of Tamil Nadu on 14 September, 2010
Author: K.B.K. Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 14.09.2010
CORAM
THE HONOURABLE MS. JUSTICE K.B.K.VASUKI
W.P. No.12094 of 2010
1. A. Sridhar
Asst. Engineer, Tamil Nadu
Civil Supplies Corporation,
Head Office, Chennai-10
2. K. Elango,
Asst. Engineer, Tamil Nadu
Civil Supplies Corporation,
Villupuram Division,
Villupuram
3. D. Boominathan,
Asst. Engineer, Tamil Nadu
Civil Supplies Corporation,
Madurai Division, Madurai
4. P. Muthuvel,
Asst. Executive Engineer,
Tamil Nadu Civil Supplies Corporation,
Madurai Division, Madurai
5. K.R. Murugan,
Asst. Executive Engineer,
Tamil Nadu Civil Supplies Corporation,
Coimbatore Division, Coimbatore ... Petitioners
Vs.
1.The Government of Tamil Nadu,
rep. by its Secretary,
Department of Co-operation,
Food and Consumer Protection,
Fort. St. George, Chennai-9
2. Tamil Nadu Civil Supplies Corporation,
rep. by its Chairman/Managing Director,
No.12, Tambusamy Road,
Kilpauk, Chennai-10
3. B. Sivakumar,
Junior Engineer,
Tamil Nadu Civil Supplies Corporation,
Head Office, Chennai-10
4. S. Baghavati Ammal,
Technical Assistant,
Tamil Nadu Civil Supplies Corporation,
Head Office, Chennai-10
5. K. Vijayaraj, Technical Assistant,
Tamil Nadu Civil Supplies Corporation,
Head Office, Chennai-10
6. M. Velu,
Technical Assistant,
Tamil Nadu Civil Supplies Corporation,
Head Office, Chennai-10
7. G. Venkatesan,
Technical Assistant,
Tamil Nadu Civil Supplies Corporation,
Gopalapuram, Chennai-86
8. S. Shanmugasundaram,
Assistant,
Tamil Nadu Civil Supplies Corporation,
Head Office, Chennai-10
9. G. Gunaseelan,
Assistant Engineer,
Tamil Nadu Civil Supplies Corporation,
Nagapattinam, Regional Office,
Tanjore Division, Tanjore ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India praying to issue a Writ of certiorarified mandamus to call for the records in the impugned order dated 21.05.2010 passed in G.O. Ms. No.61 on the file of the first respondent herein and to quash the same and to direct the second respondent to maintain the seniority of the petitioners above the deputationist, permanently absorbed in the second respondent Corporation in terms of the G.O. Ms. No.27 dated 24.01.2007 for the purpose of promotion and appointment to higher post.
For Petitioners : Mr. S. Sadasharam
For Respondents : Mr. V. Viswanathan, AGP for R1
Mr. Selvanayagan for R2
Mr. K.M. Vijayan, S.C. for
M/s. K.M. Vijayan Associates
for R3 to R9
O R D E R
The writ petition is filed against the order of the first respondent made in 21.05.2010 in G.O. Ms. No.61, to quash the same and to direct the second respondent to maintain the seniority of the petitioners above the deputationist permanently absorbed in the second respondent corporation in terms of the G.O. Ms. No. 27 dated 24.01.2007 for the purpose of promotion and appointment to higher post.
2. The brief facts which arises for consideration herein are that the petitioners 1 to 3 herein are on direct recruitment employed as Assistant Engineers on 05.03.2007 and the petitioners 4 and 5 were appointed as Assistant Engineers on 21.07.2005 and 24.12.2004 respectively and they were promoted as Assistant Executive Engineer on the same day on 05.02.2010 and the next promotional cadre for Assistant Engineer and Assistant Executive Engineer are Assistant Executive Engineer and Executive Engineer respectively. The respondents 3 to 9 were originally recruited in different co-operative institutions as Technical Assistant Engineer and Assistant and they have been deputed to the second respondent/corporation on various dates between 2002 and 2006. While they were on deputation G.O. Ms. No.27 dated 24.1.2007 came to be passed as per which the Government directed the employees of State Public Sector Undertakings/Co-operative Institution deputed to other State Public Sector Undertakings or appointed on contract in Government Departments prior to the issue of orders on the closure of the parent Undertaking/Co-operative Institution, if found very useful to the organisation, be absorbed permanently in the Foreign Body or Government Department concerned subject to fulfillment of certain conditions contained in the same. In pursuance of the same, the respondents 3 to 9 herein are permanently absorbed in the second respondent/Corporation by separate orders between 12.02.2002 and 09.01.2009 with effect from the date of such permanent absorption. The same gives raise to representations from both set of employees i.e. directly recruited employees and permanently absorbed employees. While, the petitioners herein who are the directly recruited employees made representations against the very permanently absorption of the deputationists, the deputationists, since permanent absorbed, made their representations to give effect to such permanent absorption from the date of their deputation to the second respondent/Corporation. Though the representations sent by the petitioners herein did not evoke any response, the representations given by the third respondent/ Sivakumar to permanently absorb him with effect from the date of deputation resulted in an order as per which he is absorbed from the date of his deputation from 12.02.2007 and his seniority is ordered to be refixed with consequential benefit on par with second respondent/ corporation staff. Again the petitioners sent another representation against the order passed in favour of the third respondent/Sivakumar with a request to effect the permanent absorption in terms of G.O. dated 24.01.2007 and to place the directly recruited employees over and above the deputationists. The respondents did not respond to this representation also. On the other hand, the second respondent/Corporation has addressed the first respondent/Government to ratify the orders of absorption already issued in favour of Sivakumar. The request of the second respondent seeking a ratification and the representations of respondent 3 to 7 to make the order of absorption with effect from the date of their deputation is considered together by the first respondent resulting in the order dated 21.05.2010 in G.O. Ms. No.61 in and under which the orders of absorption made in favour of the respondents 3 to 9 by the second respondent/Corporation is ratified and the respondents 3 to 9 are permanently absorbed in the second respondent/Corporation from the respective date of their deputation. Aggrieved against the same the petitioners herein have filed the present writ petition for the relief stated above.
3. The learned counsel for the petitioners has questioned the permanent absorption of the respondents 3 to 9 from the date of their deputation as contrary to the G.O. subject to the terms and conditions of which the deputationists are ordered to be permanently absorbed in the second respondent-Corporation. It is argued on the side of the petitioners that the deuputationists are as per the G.O. to be appointed as Junior in the post to which they are appointed consequent on permanent absorption with pay protection and without any claim for service rights for the purpose of selection, promotion, grade appointment etc. and with effect from the date of permanent absorption and the permanent absorption with effect from the date of deputation is without jurisdiction, illegal and irregular and is pre-judicial to the promotional right of the directly recruited employees.
4. Per contra the learned Additional Government Pleader and the learned senior counsel for the respondents 3 to 9 would justify the impugned G.O. mainly by relying upon clause 3(ix) of the G.O. According to the learned senior counsel, the service right denied to the deputationists is the right to claim the past service in the parent department for the purpose of promotion, selection grade appointment etc. and the deputationists are to be considered for their permanent absorption only after completing 2 years in the foreign body but the absorption will be with effect from the date from which they are continuously working in the foreign body on deputation and the respondents 3 to 9 are rightly absorbed with effect from the respective dates of their deputation to the second respondent/ Corporation.
5. Heard the rival submissions made on both sides.
6. The particulars contained in the counter filed on behalf of the first respondent would show that the petitioners herein are appointed as Assistant Engineers much after the dates on which the respondents 3 to 9 except the sixth respondent are deputed to the service of the second respondent/Corporation. While the date of deputation of the respondents 3 to 9 except the 6th respondent is between 12.02.2002 and 04.11.2004, the appointment of the petitioners 4 and 5 and 1 to 3 as Assistant Engineer was between 24.05.2004 and 05.03.2007 and the promotion of petitioner 4 and 5 as Assistant Executive Engineer was on 05.02.2010. The date of the deputation of the 6th respondent as Technical Assistant was on 26.04.2006 after the appointment of the petitioners 4 and 5 and before the appointment of the petitioners 1 to 3 as Assistant Engineers. The absorption G.O. is passed on 24.01.2007 and the G.O. laid down 1 to 10 conditions subject to fulfilment of which the respondents 3 to 9 who were the employees of other co-operative institutions were ordered to be permanently absorbed in the second respondent/Corporation and as on the date of that G.O. the respondents 3 to 9 were already working in the second respondent/Corporation as deputationists and except the 6th respondent, the respondents 3 to 5 and 7 have on the date of G.O. completed more than two years and were eligible to be considered for being permanently absorbed and the respondents 3 to 9 were originally absorbed from the date of the order of permanent absorption and later on the same is revised to take effect from the respective date of their deputation.
7.The core issue involved in this case is as to whether the order of permanent absorption of the respondents 3 to 9 and their permanent absorption with effect from the date of absorption is proper and valid. The learned counsel for the petitioners has as against the very permanent absorption of the respondents 3 to 9 cited the judgments of our Apex Court reported in (1) 1997 8 SCC page 372 (State of Punjab and others vs Inder Singh and others), (2) 2002 SCC (L & S) page 905 (Union of India vs S.N. Panikar), (3) 2003 SCC (L & S) 21 (Mahesh Kumar K. Parmar and others vs S.I.G. of Police and others), (4) 2006 6 SCC page 491 (State of Punjab and others vs Jasbir Singh and others) and (5) 2006 8 SCC page 129 (Indu Shekhar Singh and others vs State of U.P. and others).
8. It is true that in all these cases, the Hon'ble Supreme Court is of the view that the deputation is only a transfer of the employee concerned with the consent of the person so deputed and after the expiry of period of deputation the employee has to come back to his parent department to occupy the same position and the person cannot be sent on deputation to the higher post than the post held by him and the deputationists has no right to be permanently absorbed excepting in a particular situation and the State can make such offer for such absorption in exercise of residual power and is well within its right to impose conditions and once they accept the said offer without any demur and obtain entry on the basis of election they cannot be allowed to turn down and contend that the conditions are illegal and there is no fundamental right to count past service rendered in the parent body and the same is subject to the terms in which the offer of absorption is made by the State and is accepted by the employee concerned etc. and the High Court can only direct the Government to consider and the High Court cannot directly hold so. Though the principles laid down by the Hon'ble Apex Court regarding the conditions subject to which the deputation be made and the right of the deputationists cannot be disputed, the same are materially not applicable to facts of the present case.
9. As already referred to the Government has passed the G.O. directing permanent absorption of the employees from other State Public Sector Undertakings and Co-operative Institution under closure as early as on 24.01.2000 and the same is not challenged by any of the employees in the second respondent/Corporation. The petitioners 1 to 3 are recruited in the second respondent/Corporation only after the G.O. is passed. Though the petitioners 4 and 5 were working as Assistant Engineers on the date of G.O. they did not challenge the authority of the Government to pass one such G.O. as such the petitioners cannot be, at this length of time, permitted to raise any objection against the very permanent absorption of the respondents 3 to 9. Even in this writ petition what is challenged is the correctness of the GO which gives the date from which the absorption is given effect to and not the permanent absorption G.O. In that event, the terms and conditions laid down in the earlier G.O., is not only binding on the employees so absorbed but also the employees who are already working in the second respondent/Corporation in the category in which the deputationists are appointed on permanent absorption.
10. As already referred to the main issue to be decided herein the date from which the permanent absorption is to be given effect and the answer for the same lies in clauses v, vi and ix of the absorption G.O. Ms. No.27 which are extracted as below:
"Clause v - The employees to be absorbed in the Undertakings/Government Departments will be given pay protection. However they will not be given any service rights for the purpose of promotion, selection grade appointments etc., Clause vi - They will be appointed to the post as junior most in that particular category to which they are appointed consequent on permanent absorption Clause ix - The employees of State Public Sector Undertakings/Co-operatives working on deputation/ contract with the other State Public Sector Undertakings/ Government Departments may be considered for permanent absorption only after they completed two years of service in the foreign body. It is also clarified that the permanent absorption in the SPSUs, Government Departments will take effect from the date from which they are continuously working in the foreign body on deputation/contract."
11. It is earnestly argued by the learned counsel for the petitioners that the deputationists shall be permanently absorbed after completing two years service in the foreign body with effect from the date of their permanent absorption that too as the junior most in the category to which the appointment is so made and the permanent absorption will not entitle them to claim any service for the purpose of promotion, selection grade, appointment etc. whereas the respondents 3 to 9 would contend that the deputationists will be considered for permanent absorption after completion of two years service in the foreign body but the order of permanent absorption will be as and when made to take effect from the date of their deputation but without any right to claim their past service in the parent body for the purpose of promotion, selection, appointment etc. This Court is inclined to accept the explanation put forth on the side of the respondents 3 to 9 for the following reasons:
12. Even in the judgment cited on the side of the petitioners, what is denied to the deputationists is their the past services rendered in original department for the purpose of promotion, seniority etc. and the clause v is a similar clause dealt within the case reported in 2006 8 SCC 129 wherein the employees having been appointed on absorption claimed benefit of their past service after absorption and the Supreme Court rejected the same on the ground that the same was contrary to the condition subject to which the absorption is ordered. As such the service rights referred to in clause v in G.O. Ms. No.27 as rightly argued by the learned senior counsel for the respondents 3 to 5 is only the past service rendered in the parent department and not the service rendered by the deputationists in the category to which they are appointed on permanent absorption in the second respondent/corporation.
13.The combined appreciation of clauses vi and ix would only lead an irresistible conclusion that though the eligibility for being considered for permanent absorption will arise only after their completion of two years of service in the foreign body on deputation. Once they completed two years of their service and once they are declared to be eligible for permanent absorption, it shall take effect from the date from which they are continuously working in the foreign body on deputation and the seniority is to fixed as junior most in the particular category as on that date. It is rightly argued by the learned senior counsel for the fourth respondent that the period to be considered for permanent absorption is different from the date on which the permanent absorption is to be given effect to and the seniority in the particular category to which they are appointed in permanent absorption is only from the date on which it is given effect to. The learned standing counsel for the second respondent/ Corporation has also supported the stand so taken by the deputationists that the permanent absorption of the respondents is as per G.O. Ms. No.27 from the date of their deputation and the same is under the impugned G.O. rightly ratified by the Government.
14.As a matter of fact the second respondent has in the counter furnished the particulars about similar order made in respect of one S.B.R. Kannan who was originally employed as Site Engineer in Highways Department and later he was while on deputation, permanently absorbed as Assistant Engineer in the second respondent/Corporation with effect from 10.01.1996 the date on which he was deputed to the service of the second respondent/Corporation. Thus, the impugned G.O. thereby permanently absorbing the respondents 3 to 9 from the date is in strict compliance with the terms and conditions laid down in the permanent absorption G.O. and is well within the jurisdiction of the first respondent. The petitioners herein who were not even in the service of the second respondent/Corporation on the date of the deputation of the respondents 3 to 9 and the petitioners 4 and 5 who failed to challenge the absorption G.O. cannot be now permitted to raise any objection or grievance against the orders passed in favour of the respondents 3 to 9 herein. If in the event of the implementation of the absorption G.O. the permanent absorption of the respondents 3 to 9 is likely to replace the petitioners below the deputationists in the matter of fixation of seniority, it cannot be questioned and the claim of the petitioners to place them over and above the respondents 3 to 9 is to be hence rejected as baseless and unfounded. In the considered view of this Court, the seniority of the petitioners and the respondents 3 to 9 in the category to which the respondents 3 to 9 were appointed consequent on the permanent absorption is subject to the date of the permanent absorption of the respondents 3 to 9 as per the impugned G.O. and the petitioners are not entitled to get any benefit contrary to the terms of absorption and ratification G.Os.
15. In the result the writ petition fails. No costs.
14.09.2010 Index : Yes/No Internet : Yes/No vga To
1.The Secretary, Department of Co-operation, Food and Consumer Protection, Fort. St. George, Chennai-9
2. Tamil Nadu Civil Supplies Corporation, rep. by its Chairman/Managing Director, No.12, Tambusamy Road, Kilpauk, Chennai-10.
K.B.K. VASUKI, J.
vga W.P. No.12094 of 2010 14.09.2010