Madras High Court
Ravi Shanmugam vs Mr.Lsm.Hasan Fizal on 31 August, 2010
Author: V.Ramasubramanian
Bench: V.Ramasubramanian
?IN THE HIGH COURT OF JUDICATURE AT MADRAS %DATED: 31/08/2010 *CORAM THE HON'BLE MR.JUSTICE V.RAMASUBRAMANIAN +WP.Nos.12971 of 2010 #S.Vijay $The Secretary to Government !FOR PETITIONER : Ravi Shanmugam ^FOR RESPONDENT : Mr.LSM.Hasan Fizal :ORDER IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31.8.2010 CORAM THE HON'BLE MR.JUSTICE V.RAMASUBRAMANIAN Writ Petition Nos.12971 & 12972 of 2010 MP.Nos.1 and 2 of 2010 Mr.S.Vijay .. Petitioner in W.P.No.12971/10 Ms.Nalini Natarajan .. Petitioner in W.P.No.12972/10 Vs. 1. The Secretary to Government Home (Police-18) Department Secretariat, Chennai 9. 2. The Director Forensic Sciences Department Chennai 4. 3. Ms.D.Vijayalakshmi 4. Ms.S.Jayanthi 5. Ms.C.Jaya 6. Mr.R.Rajesh 7. Ms.C.Bhavani 8. Mr.M.Senthil Kumar 9. Ms.R.Geetha ...Respondents in both WPs [Respondents 3 to 9 are impleaded vide order dated 20.7.2010 in M.P. Nos.2 of 2010 in W.P.Nos.12971 of 2010 and 12972 of 2010.] Petitions under Article 226 of The Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records pertaining to the order passed by the second respondent in his A1/37467/2010, O.O.No.83/2010 dated 17.6.2010 insofar as posting the petitioners to Regional Forensic Science Laboratory, Coimbatore and Trichy respectively are concerned and quash the same and consequently, direct the second respondent to post the petitioners in any Division in Physics group as per the Special Rules of the Tamil Nadu Forensic Sciences Subordinate Service (Technical) issued in G.O.Ms.No.892, Home (Pol.XVI) Department dated 27.6.1996. ----- For Petitioners : Mr.Ravi Shanmugam For Respondents 1&2 : Mr.LSM.Hasan Fizal Govt. Advocate For Respondents 3-9 : Mr.C.Selvaraju, S.C. For M/s.C.S.Associates ----- COMMON ORDER
The petitioners have come up with these writ petitions challenging an order, by which they have been transferred from Chennai and posted to Regional Forensic Sciences Laboratories at Coimbatore and Trichy respectively, on promotion.
2. I have heard Mr.Ravi Shanmugam, the learned counsel for the petitioners, Mr.L.S.M.Hasan Fizal, learned Government Advocate for the respondents 1 and 2 and Mr.C. Selvaraju, learned Senior Counsel for respondents 3 to 9.
3. By the order dated 17.6.2010 impugned in the writ petitions, the petitioner in the first writ petition who was working as Scientific Assistant Grade II in the Instrumentation division at Chennai, has been posted to the Regional Forensic Science Laboratory at Coimbatore, on promotion as Scientific Assistant Grade I. Similarly, the petitioner in the second writ petition was also promoted from the post of Scientific Assistant Grade II to the post of Scientific Assistant Grade I and transferred from Physics Wing, Chennai and posted to the Regional Forensic Science Laboratory, Trichy.
4. The only ground, on which, the petitioners have challenged the impugned order is that the Department of Forensic Sciences is divided into separate Groups by the Statutory Rules and that the appointments, promotions and postings of persons serving the department could only be within the respective Groups in which they were appointed. However, the petitioners have now been promoted to the post of Scientific Assistant Grade-I and posted to different Groups and hence, they are before Court.
5. While the petitioner in the first writ petition holds the qualification of M.Sc. and M.Phil in Physics and was selected and appointed through the Tamil Nadu Public Service Commission as Scientific Assistant Grade II in the Physics Group, on 18.8.1999, the petitioner in the other writ petition holds the qualification of M.Sc. in Physics and was also selected and appointed on the same date in the Physics Group. Both of them are happy about the promotion given to them by the order impugned in the writ petitions, but, challenge only their posting to different groups, on the ground stated above.
6. In order to test the veracity of the above contention, it is necessary to have a bird's eye view of the statutory rules issued under the proviso to Article 309 of the Constitution of India.
7. The Special Rules for the Tamil Nadu Forensic Sciences Subordinate Service were issued originally under G.O.Ms.Nos.2790 and 2791, Home Department, dated 3.10.1986. After finding anomalies in those rules, the Director of Forensic Sciences constituted a Committee, under directions from the Government, to suggest amendments. On the basis of the report of the Committee and the remarks offered by the Director, the Government issued G.O.Ms.No.892, Home Department dated 27.6.1996, notifying a new set of Special rules for the Tamil Nadu Forensic Sciences Subordinate Service, in supersession of the earlier Rules.
8. As per the said Rules, the Tamil Nadu Forensic Sciences Subordinate Service is to consist of five Classes of posts. While Classes IV and V consist of only one post each, Class I comprises of four categories of posts, Class II comprises of two categories and Class III comprises of three categories of posts. The post of Scientific Assistant Grade I falls under category 1 of Class I, while the post of Scientific Assistant Grade II falls under category 4 of Class I.
9. The Table under Rule 2 stipulates the method of recruitment and the qualifications prescribed for each category and Class of post. The relevant portions of the Table below Rule 2, which deal with the posts of Scientific Assistant Grade I and Grade II, are as follows:
Class and Category Methods of appointment Qualifications Class I Category 1 Scientific Assistant Grade I By promotion from among the holders of the post of Scientific Assistant Grade II Experience as Scientific Assistant Grade II for a period not less than three years in the group as shown in the Annexure to which he is promoted. Category 4 Scientific Assistant Grade II By direct recruitment M.Sc., (F.S.) Degree and a degree in the subject, for the group as shown in the annexure below to which he is appointed, or M.Sc., degree in the subject for the group as shown in the Annexure, to which he appointed.
10. The Annexure referred to in the Table reads as follows:
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Sl. Group Division Subject No. (1) (2) (3) (4)
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(1) BIOLOGY (i) Anthropology Zoology or Anthropology (ii) Biology (physical)/Bio-chemistry
(iii) Serology Micro Biology (2) CHEMISTRY (i) Chemistry Chemistry (General or
(ii) Documents Organic or Inorganic or
(iii) Toxicology Analytical or Physical)
(iv) Photography
(v) Prohibition
(vi) Excise
(vii) Explosives
(viii) Narcotics (3) PHYSICS (i) Ballistics Physics or Physical
(ii) Documents Chemistry
(iii) Photography
(iv) Physics Note 1:A person with Bio-Chemistry as his subject in the degree is eligible for appointment only in the Biology and Serology Divisions in the Biology group and in the Toxicology division in Chemistry group.
Note 2: A person appointed in the documents and photography division will take his seniority either in the chemistry or physics group according to his subject in the degree.
Note 3: The services rendered in the Research and Development and Reception divisions and Mobile Forensic Science Laboratories will be counted for experience in the respective group according to their subject in the degree.
11.From the Table under Rule 2 extracted above, it is clear that the very appointment to the post of Scientific Assistant Grade II, which happens to be the last category of post under Class I, is made with specific reference to the group as shown in the Annexure to the Rules. Consequently, the promotion from Grade II to Grade I (category 4 to category 1) is also confined to the group in which, the incumbent was working in the Feeder category. What is found in the Table below Rule 2 is also fortified by the segregation of the entire department into three groups, namely (i) Biology, (ii) Chemistry and (iii) Physics, with each group being divided into separate divisions and the identification of subjects that would fit into the different divisions among the three groups.
12. The fact that appointments are also made only to specific groups, in accordance with the prescription contained in the Table below Rule 2 read with the Annexure, is made clear both by the recruitment Notification issued by the Tamilnadu Public Service Commission and by the very orders of appointment issued to the petitioners herein. In the Notification issued by the Service Commission, in November 1996, applications were invited for appointment to 44 posts of Scientific Assistant Grade II. Out of them, 26 posts were indicated to be in Chemistry group, 9 posts in Physics group and 9 posts in Biology. Clause 4 of the Notification for recruitment prescribed the qualifications essential for consideration. The explanation under Clause 4 of the Notification indicated the three groups, namely Biology, Chemistry and Physics and the divisions constituting each of those groups. The explanation under Clause 4 of the recruitment Notification was actually a reproduction of the Annexure to the Special Rules for Tamilnadu Forensic Subordinate Service, extracted in paragraph 10 above. Therefore, it is clear that the selection was groupwise. Consequently, the appointments were also groupwise, as seen from the order of appointment dated 26.7.1999 issued to the petitioners in the Physics group. The said order of appointment was actually issued in common to about 50 persons including the petitioners herein. Out of the 50 persons, 32 were allotted to Chemistry group, 9 persons were allotted to Physics group and the remaining 9 allotted to Biology group. Therefore, the recruitment notification as well as the order of appointment issued to all the appointees also confirm the fact that the recruitment itself was made only group-wise.
13. It appears that after the appointments, the appointees underwent an induction training. After the completion of the training, the appointees were issued with posting orders. By the posting orders dated 30.8.1999, the petitioner in the first writ petition was posted to the Ballistics Division in Physics group and the petitioner in the other writ petition was posted to Physics group, both at Chennai
14. As stated earlier, the Tamilnadu Forensic Sciences Subordinate Service consists of 11 categories of posts, namely Scientific Assistant Grade I, Scientific Assistant (Photography), Technical Stores Superintendent, Scientific Assistant Grade II, Photographer, Store Keeper, Technical Assistant (Air Conditioning), Technical Assistant (Gas Plant), Technician, Senior Laboratory Attendant and Junior Laboratory Attendant. These 11 categories of posts in the Subordinate Service are grouped under five classes. We have already seen that the appointments and postings to the posts in categories 1 and 4 under Class I are made according to the groups, for which, selection is made. Now, let us see the rule position with regard to the State Service in the Department
15. In so far as the State Service is concerned, the Tamilnadu Forensic Sciences Service consists of five posts, namely Director, Additional Director, Deputy Director, Assistant Director and Scientific Officer. The Special Rules for the State Service were issued by the Government under G.O.Ms.No.764 Home Department dated 23.8.2002, in supersession of the existing Special Rules. In the Table below Rule 3 of the Special Rules, the method of recruitment and the qualifications prescribed for appointment to the post of Scientific Officer, are indicated as under :
Scientific Officer (1) By recruitment by transfer from among the holders of the post of Scientific Assistant Grade I in the Tamilnadu Forensic Science Subordinate Service; or
(i) M.Sc degree in the subject specified in the Annexure for the division/ unit to which he is appointed; or M.Sc (Forensic Science) degree, the basic degree being in the subject specified in the Annexure below; and
(ii) experience for a period of not less than two years as Scientific Assistant Grade I in the Tamilnadu Forensic Science Subordinate Service.
(2) by direct recruitment if no suitable and qualified person available by the method (1) above.
i) M.Sc degree in the subject specified for the division/ unit in the Annexure below, or M.Sc (Forensic Science) degree, the basic degree being in the subject specified for the division/ unit in the Annexure below; and
(ii) Experience for a period of not less than two years in the Forensic Science Laboratory; or any other Laboratory of a collage or University recognized by University Grants Commission for the purpose of its grant.
16. The Annexure under Rule 3 divides the Department into four groups, namely Biology, Chemistry, Physics and common group. These groups are further divided into several divisions under Column NO.2 of the Annexure. The subjects eligible for each division are indicated in Column NO.3 of the Annexure. The Annexure is extracted hereunder :
"S.No. Name of Group Division/unit belonging to the group Subjects eligible for division/unit 1 Biology
i) Anthropology
ii) Biology
iii) Serology Zoology/Physical Anthropology Zoology/Bio-Chemistry/ Botany/Micro Biology Zoology/Bio-Chemistry/Micro Biology 2 Chemistry
i) Chemistry
ii) Toxicology
iii) Prohibition
iv) Excise
v) Explosives
vi) Narcotics Chemistry/Analytical Chemistry/Applied Chemistry/Polymer Chemistry Chemistry/Bio-Chemistry/ Applied Chemistry/Analytical Chemistry/Environmental Toxicology Chemistry/Analytical Chemistry/Applied Chemistry/Polymer Chemistry Chemistry/Analytical Chemistry/Applied Chemistry/Polymer Chemistry Chemistry/Analytical Chemistry/Applied Chemistry/Polymer Chemistry Chemistry/Analytical Chemistry/Applied Chemistry/Polymer Chemistry 3 Physics
i) Ballistics
ii)Physics Physics Physics 4 Common
i) Research & Development
ii) Documents
iii) Photography
iv) Reception
v) Mobile Forensic Science Laboratory Zoology/Bio Chemistry/Botany/ Chemistry/Applied Chemistry/ Analytical Chemistry /Polymer Chemistry/Environmental Toxicology/Microbiology/ Physics/Physical Anthropology Zoology/Bio Chemistry/Botany/ Chemistry/Applied Chemistry/ Analytical Chemistry /Polymer Chemistry/Environmental Toxicology/Microbiology/ Physics/Physical Anthropology Zoology/Bio Chemistry/ Botany/Chemistry/Applied Chemistry/Analytical Chemistry/Polymer Chemistry/Environmental Toxicology/Micro Biology/ Physics/Physical Anthropology Zoology/Bio Chemistry/ Botany/Chemistry/Applied Chemistry/Analytical Chemistry/Polymer Chemistry/ Environmental Toxicology/ Microbiology/Physics/Physical Anthropology Zoology/Bio Chemistry/ Botany/Chemistry/Applied Chemistry/Analytical Chemistry/Polymer Chemistry/Environmental Toxicology/Microbiology/ Physics/Physical Anthropology Note : The persons appointed under the common group will also be eligible for Biology/Chemistry/Physics groups according to the subject studied in the under graduate or post graduate degree."
17. The Special Rules for the State Service also make it clear that recruitment by transfer to the post of Scientific Officer (coming under the State service), from the post of Scientific Assistant Grade I(coming under the subordinate service) is made only on the basis of the subjects specified in the Annexure. Therefore, it is abundantly clear that all appointments, postings and recruitments by transfer to these posts go strictly according to the groups, into which, the candidates will fit in.
18. But, by the order impugned in the writ petitions, the petitioners, who were originally selected for appointment to the Physics group and who have all along worked in the Physics group for the past 11 years, have been promoted and posted to the Regional Offices at Coimbatore and Trichy respectively. It is the contention of the petitioners that in the Regional Offices at Coimbatore and Trichy, there are no divisions, which belong either to the Physics group or to the common group. Therefore, the petitioners assail the impugned orders as violative of the Statutory Rules.
19. Interestingly, the official respondents, who have filed a common counter affidavit, have not denied the fact that appointments to the above posts are made groupwise and that promotions and postings are also made groupwise, as per the Statutory Rules. In paragraph 7 of the counter affidavit, the official respondents have traced the history of evolution of the Department of Forensic Sciences from the year 1959. In paragraph 10 of the counter affidavit, the official respondents have pointed out that Rule 4 of the Special Rules for Tamilnadu Forensic Sciences Subordinate Service (as they stood in 1986) providing for compartmentalisation of the qualifications, came under challenge before the Tamilnadu Administrative Tribunal in OA.No.1727 of 1991. By an order dated 4.12.1991, the Tribunal disposed of the application with a direction to the Government to consider the revision of the qualifications, so that appointment to a particular division may be made not only with reference to the main subject studied in graduation, but also with reference to the ancillary subjects studied in graduation. Though a special leave petition was filed against the order of the Tribunal before the Supreme Court (since it arose pre-L.Chandrakumar's decision), it was withdrawn on 24.9.1996 in view of the new set of Rules being issued under G.O.Ms.No.892 dated 27.6.1996. But curiously, the Amended Rules issued under G.O.Ms.No.892 also laid stress only upon the necessity to make appointments, promotions and postings, groupwise.
20.Therefore, the respondents have no qualm about admitting the actual position as reflected in the Statutory Rules, to the effect that appointments, promotions and postings are to be made groupwise. This is why in paragraph 11 of the counter affidavit, the official respondents merely plead that the individuals appointed to any group could be promoted and posted to 'Reception' or 'Mobile Forensic Science Laboratory' or 'Regional Forensic Science Laboratory' and that the Rules do not prohibit the same. If any person can be posted to any group, the official respondents need not have been apologetic as they have been in paragraph 11 of the counter affidavit. The contents of paragraph 11 of the counter affidavit make it clear that all appointments, postings and promotions should follow groupwise segregation and that there is no impediment for posting a person working in a group, to certain divisions or groups, which are maintained in common for persons of all groups.
21.After almost admitting the statutory requirement to make groupwise allotments and postings, the official respondents attempt to justify the impugned orders mainly on three grounds, namely,
(i)that since the Department is now made obliged to maintain a common seniority and not group-wise seniority, in view of a decision of this Court, it is difficult to maintain groupwise allotments,;
(ii) that the present orders of promotion and allotment were made after conducting counselling and hence, the petitioners cannot object to it; and
(iii) that the places, to which, the petitioners are now posted, have divisions, which fall within the Physics group.
Now let me test the validity of the above justifications one after another.
22.The first contention of the official respondents is that the Director of the Department originally issued a common seniority list by the proceedings dated 23.6.1995. The seniority list and the panel for promotion came to be challenged before the Tamilnadu Administrative Tribunal in OA.NO.443 of 1999. The Tribunal set aside the seniority list, which led to a batch of writ petitions in WP.NOs.12751 of 2004 etc. A Division Bench of this Court disposed of the writ petitions by a common order 28.1.2009, as a result of which, the common seniority list issued by the Department came to be upheld. Therefore, it is the contention of the official respondents that the attempt of the Department to maintain groupwise seniority list became short-lived. Consequently, promotions are obliged to be made only on the basis of the common seniority list and hence, it becomes difficult to accommodate the promotees, within the group, in which, they were originally selected and appointed in the Feeder category.
23. Though the official respondents have not said so in so many words, the defence set up by them in paragraph 8 of the counter affidavit is that when promotions are made on the basis of common seniority list, it is possible at times that persons belonging to a particular group may get promoted far in excess of the number of vacancies available in the same group in the promotional category. Therefore, those, who could not be accommodated in the same group in the promotional category, have to be necessarily allotted to the common group.
24. At first blush, the above contention of the official respondents appears to be fair and reasonable. As a matter of fact, Mr.C.Selvaraju, learned Senior Counsel appearing for the contesting respondents also echoed similar views and took a stand that if the petitioners are prepared to accept groupwise seniority, promotions and postings within the same group, as claimed by them, may also be accepted.
25. Interestingly, the contesting respondents, represented by Mr.C.Selvaraju, learned Senior Counsel did not choose to file a reply. The learned Senior Counsel made it clear that according to the contesting respondents, promotions and postings within the same group would be possible only if groupwise seniority is followed.
26. But, unfortunately for the respondents, the method of fixation of seniority is not in issue before me. Neither the Special Rules for the Subordinate Service nor the Special Rules for the State Service prescribe any method of fixation of seniority. Therefore, the fixation of seniority, in the absence of any provision in the Special Rules, should only follow the provisions of Rule 35 of the General Rules for Tamilnadu State and Subordinate Services.
27. In any case, a perusal of the judgment of the Division Bench of this Court in WP.NOs.12751 of 2004 batch dated 28.1.2009 shows that the question as to whether there should be a common seniority list or a groupwise seniority list was not in issue before the Division Bench. Paragraphs 9 and 10 of the judgment of the Division Bench indicate that a few persons, who were appointed earlier to one Mr.P.Rajan as Scientific Assistant Grade II declined promotions to the post of Scientific Assistant Grade I. Therefore, Mr.P.Rajan came to be promoted earlier to the post of Scientific Assistant Grade I. But, when the question of recruitment by transfer to the next higher post of Scientific Officer (State Service) arose, Mr.P.Rajan went to the Tribunal contending that the seniority in the post of Scientific Assistant Grade I should be the basis for consideration for recruitment by transfer to the post of Scientific Officer. But, his rivals took a stand that the seniority on the basis of the original date of entry into service as Scientific Assistant Grade II should form the basis. Therefore, the question as to whether promotions and postings should be made within the group, to which, a person belonged in the Feeder category did not arise for consideration before the Division Bench, in the judgment relied upon by the official respondents.
28. More over, the official respondents have not come up with adequate facts to establish that the number of vacancies available in the category of Scientific Assistant Grade I in a particular group, are not sufficient to accommodate persons belonging to that group in the Feeder category, namely Scientific Assistant Grade II. The official respondents have not even come up with any statistics to show that the posting of the petitioners to the vacancies in the Physics group would result in the reversion of any of the contesting respondents. Therefore, it is not necessary for me to solve a riddle, which is not before me.
29. In fine, an analysis of the Special Rules for the Subordinate Service as well as the State Service shows that it is the mandate of the Rules that all appointments, promotions and postings are to specific groups. Within the groups, the allotments could be to the respective divisions that constitute the group. But, a person appointed to a particular group, such as Biology, Chemistry or Physics, cannot be allotted to a division, which does not fall within the group, to which, he is appointed. To this extent, the petitioners are right in their contentions.
30. However, the official respondents justify the impugned orders also on the ground that the petitioners have been posted to common divisions, which fall within the Physics group.
31.The petitioners have obtained, by making applications under the Right to Information Act, the details regarding the total number of vacancies available in each group and their distribution among various Regional Offices and the Directorate. In the course of hearing of the writ petitions, I also directed the learned Government Advocate to obtain from the Department, the distribution of vacancies division-wise and group-wise in different stations. The learned Government Advocate produced the same and it tallies with the one produced by the learned counsel for the petitioners.
32.In order to show the total number of vacancies and their distribution among various groups, the petitioners have also produced two Government Orders, namely G.O.Ms.No.26 Home Department dated 9.1.2002 and G.O.Ms.No.647 Home Department dated 5.6.2008. The first order shows that there are 56 posts of Scientific Officers, 53 posts of Scientific Assistants Grade I and 91 posts of Scientific Assistants Grade II. But, by the second order, a need based re-deployment of Scientific staff was ordered, the result of which, is furnished in the form of a tabular statement in paragraph 2 of G.O.Ms.No.647 dated 5.6.2008. The statement is as follows :
S.No Divisions/Regional Laboratories Staff Strength as per G.O.Ms.No.26 dated 9.1.2002 SO SA-I SA-II Strength after redistribution SO SA-I SA-II 1 Anthropology 1 1 2 1 1 2 2 Ballistics 1 2 2 1 1 2 3 Biology 1 1 2 1 1 1 4 Chemistry 1 2 2 1 1 2 5 Computer Forensic 0 0 0 0 1 2 6 Documents 2 3 6 2 4 4 7 Excise 1 6 11 1 4 14 8 Explosives 1 1 1 1 1 1 9 Narcotics 1 1 3 1 1 1 10 Physics 1 1 1 1 1 2 11 Prohibition 1 1 4 1 1 3 12 R & D/DNA 1 1 2 1 2 3 13 Serology 1 2 6 1 1 2 14 Toxicology 1 3 7 1 4 8 15 Instruments 0 1 1 0 1 1 16 Reception 0 1 1 0 1 1 A Total 14 27 51 14 26 49 1 RFSL, Coimbatore 1 5 10 1 4 8 2 RFSL, Madurai 2 6 8 2 7 9 3 RFSL, Ramnad 1 1 2 1 2 3 4 RFSL, Salem 1 1 2 1 2 4 5 RFSL, Thanjavur 1 5 6 1 2 4 6 RFSL, Tirunelveli 1 4 5 1 3 4 7 RFSL, Trichy 1 1 2 1 3 3 8 RFSL, Vellore 1 2 3 1 2 4 9 RFSL, Villupuram 1 1 2 1 2 3 B Total 10 26 40 10 27 42 C MFSLs 33 0 0 33 0 0 Grand Total (A+B+C) 57 53 91 57 53 91
33.The official respondents have taken a stand that the petitioners have been posted to the Regional Laboratories at Coimbatore and Trichy respectively and that the petitioner in the second writ petition may be allotted Reception work. According to the respondents, Reception work is in common group, to which, persons belonging to any group can be allotted.
34.But, the above stand of the official respondents is belied by two things, namely (i) the distribution of vacancies under G.O.Ms.No.647 Home Department dated 5.6.2008 extracted in paragraph 32 above and (ii) the statement showing the availability of groups and divisions in the various Regional Laboratories. As per the distribution of vacancies under G.O.Ms.No.647, there is only one post of Scientific Assistant Grade I and one post of Scientific Assistant Grade II in the Reception division, coming within the common group. This Reception division is available, as seen from G.O.Ms.No.647 only at Chennai and not in the Regional Laboratories at Coimbatore or Trichy.
35. The statement furnished by the learned Government Advocate on 27.8.2010 in the course of hearing of the writ petitions shows that the total number of posts available at the Regional Laboratory, Coimbatore are only four and the divisions allotted to the Regional Laboratory, Coimbatore are Biology, Excise, Narcotics, Prohibition and Toxicology. As per the Annexure to the Special Rules, Biology division is in Biology group. The divisions of Excise, Narcotics, Prohibition and Toxicology fall within the Chemistry group. Therefore, even as per the statement furnished by the official respondents, there is no division available at Coimbatore, which would come within the Physics group or even the common group, to which, a Physics candidate could be allotted.
36. Similarly, the statement furnished by the learned Government Advocate shows that in the Regional Laboratory at Trichy, three posts are available and the divisions allotted to Trichy are Biology, Prohibition, Narcotics and Toxicology. Therefore, it is clear that even at Trichy, only the groups of Biology and Chemistry are available and neither the Physics group nor the common group is available there. In such circumstances, the posting of the petitioners, who were selected and appointed to the Physics group, to the groups other than Physics or the common group, is clearly in violation of the Statutory Rules.
37. The second defence, set up by the respondents to sustain the impugned orders, is that the impugned orders were passed only after counselling and that the petitioners, who agreed in the counselling to take postings at Coimbatore and Trichy respectively, cannot go back on their consent.
38. But, the said contention of the official respondents can hardly be accepted. If Statutory Rules very clearly provide only for groupwise appointments, promotions and postings, it is not open either to the Department or to the employees to flout the Rules by consent. By agreement, the parties are not entitled to violate the Statutory Rules.
39. More over, this theory propounded by the official respondents does not appear to be a sound one. It appears from the counter affidavit filed by the official respondents that the promotees were given options in respect of the places of postings, in the order of seniority. The senior most persons, like the third respondent herein, appear to have chosen the places of posting, not depending upon the groups to which, they belong, but depending upon their own convenience. For instance, the third respondent herein admittedly belongs to the Chemistry group. Since she was given the first option to choose the place of posting in accordance with her seniority, she had chosen Chennai. As per paragraph 17 of the counter affidavit filed by the official respondents, the third respondent was promoted against a vacancy in Ballistics division. But, Ballistics division falls under the Physics group as per the Annexure to the Special Rules. Therefore, the official respondents admit in paragraph 17 of their counter that the third respondent is now made to work in Excise division, which falls within Chemistry group.
40. Therefore, the counselling organized by the official respondents and the choice made by the promotees, have no meaning at all. Despite the fact that the third respondent belongs to the Chemistry group, the official respondents gave her a choice to choose a place where a vacancy in Physics group was available. Such an action is nothing but a gross violation of the Statutory Rules, which cannot be permitted, even if by consent. Therefore, the second defence set up by the official respondents cannot be countenanced.
41. As a matter of fact, the official respondents are actually guilty of maintaining double standards. It appears that one Mr.D.Baskar was appointed in the Chemistry group. When he made a claim for a posting in Ballistics division, which falls in the Physics group, the claim was rejected by the Director by his letter addressed to the Government, bearing No.A1/35665/2010 dated 17.5.2010 on the ground that he can be accommodated only in the group, for which, he was selected and appointed.
42. After having taken such a stand in respect of one individual namely Mr.D.Baskar in tune with the Statutory Rules, it is not open for the respondents to take a contrary stand in respect of the petitioners and that too, in violation of the Statutory Rules. Therefore, the impugned orders are patently violative of the Special Rules, in so far as they seek to allot and post the petitioners to divisions, which do not fall within the groups, in which, they were selected and appointed. Consequently, the writ petitions are liable to be allowed.
43. Accordingly, both the writ petitions are allowed and the impugned orders are set aside to a limited extent, in so far as they seek to post the petitioners and the contesting respondents to the divisions, which do not fall within the groups, in which, they were appointed. The second respondent is directed to issue fresh orders of posting to the petitioners and the contesting respondents, fashioning the same in such a manner that all the promotees go to places where there are vacancies in the divisions falling within the group, to which, each one of them belong. The second respondent shall issue fresh orders within a period of two weeks from the date of receipt of a copy of this order. There will be no order as to costs. Consequently, all connected pending MPs are closed.
31.8/2010 To
1. The Secretary to Government, Home (Police-18) Department Secretariat, Chennai 9.
2. The Director, Forensic Sciences Department, Chennai 4.
KPL/RS V.RAMASUBRAMANIAN,J KPL/RS PREDELIVERY COMMON ORDER IN WP.NOS.12971 & 12972/2010 and MP.NOS.1 AND 2 OF 2010 31/8/2010