Madras High Court
The Government Of Tamil Nadu vs K.Malaisamy on 25 January, 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 21.11.2024
PRONOUNCED ON: 17.12.2024
CORAM
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
and
THE HONOURABLE MR.JUSTICE N.SENTHILKUMAR
W.A.(MD)No.1614 of 2018
and
C.M.P.(MD)No.11731 of 2018
1.The Government of Tamil Nadu,
represented by its Principal Secretary,
Rural Development and Panchayat Raj Department,
Fort St.George, Chennai-600 009.
2.The Director of Rural Development and
Panchayat Raj,
Panagal Building, Saidapet,
Chennai – 600 015.
3.The District Collector,
Tirunelveli District, Tirunelveli. ... Appellants
-vs-
1.K.Malaisamy
2.R.Rayappan ...Respondents
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Prayer: This Writ Appeal is filed under Clause XV of Letters Patent, to set aside
the order passed in W.P.(MD)No.17449 of 2014, dated 25.01.2018 on the file of
this Court.
For Appellant : Mr.Veerakathiravan
Additional Advocate General
assisted by Mrs.D.Farjana Ghousia
For R1 : Mr.M.Saravana Kumar
****
JUDGMENT
[Judgment of the Court was made by N.SENTHILKUMAR, J.] Aggrieved by the judgment passed in W.P.(MD)No.17449 of 2014, dated 25.01.2018, the State has preferred this appeal.
2.The brief facts of the case of the Writ Petitioners is that they were appointed as Office Assistants in the Panchayat Union Office in Tirunelveli District in the year 1986 and 1989 respectively. On issuance of G.O.Ms.No.55, dated 15.06.2006, Rural Development and Panchayat Raj Department, their services were regularised on completion of ten years. However, the monetary benefits were granted only with effect from 25.10.2006. The next post for their _______________ Page 2 of 10 https://www.mhc.tn.gov.in/judis promotional avenue is the Record Clerk/Office Assistant/Night Watchman/Sewing Teacher. For which, by proceedings of the third appellant herein, dated 30.10.2012, the seniority list was published, wherein, the Writ Petitioners' name were figured in Sl.No.98 and 104. However, on 02.01.2014, the third appellant had re-fixed the seniority by conducting a review meeting on 30.12.2013 and a revised seniority list was published, in which the seniority of the Writ Petitioners was downgraded. Challenging the same, the Writ Petition has been filed on the ground that no opportunity was granted to them before issuing the revised seniority list and no show cause notice was given calling for an explanation from the Writ Petitioner.
3.The learned Single Judge had allowed the Writ Petition and passed the following order:
“2.The third respondent, who issued the revised combined seniority list has filed his counter affidavit. The third respondent has stated that the revised seniority list was issued in the year 2013 based on the instructions of the second respondent fo fix seniority based on the dates on which the candidates joined in the respective posts. The third respondent would refer to Rule 35 (aa) of Tamil Nadu State and Subordinate Service Rules. Rule 35(aa) of the Tamil Nadu State and Subordinate Service Rules reads that seniority of a person in a service, class, category or grade shall be determined with reference to the date on which he is appointed to the services, _______________ Page 3 of 10 https://www.mhc.tn.gov.in/judis class, category or grade. Therefore, as per rule 35(aa), seniority must be fixed based on the date of appointment and not the date of joining. The third respondent has misquoted the rule in question. The request made by the writ petitioners is reasonable and acceptable and in consonance with the aforesaid rule 35(aa) of the Rules. 3.It is also seen that the third respondent has not put the petitioners on notice before downgrading their seniority ranking. The action of the third respondent is also in clear violation of principles of nature justice. Therefore, a writ of mandamus is issued directing the third respondent to fix the seniority ranking of the writ petitioners based on the respective dates of their appointments and not based on the dates of joining in their respective posts.”
4.Challenging the same, the present Writ Appeal has been filed.
5.Mr.Veerakathiravan, learned Additional Advocate General appearing for the Writ Appellants contended that the third appellant had issued the seniority list on 10.10.2013 and he drew the attention of this Court to the order passed by the Secretary to Government, Rural Development and Panchayat Raj Department, vide letter dated 29.08.2013. The letter had categorically made it clear that the total number of appointment of 933 made in the Rural Development Department, as Fitter Assistant be regularised. Based on the said letter, the third appellant had issued the proceedings, dated 10.10.2013.
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6.The learned Additional Advocate General had referred to a judgment of Hon'ble Supreme Court reported in (2006) 6 SCC 558 between A.Madalaimuthu and another vs State of Tamil Nadu and others. In the aforesaid judgment, the Hon'ble Supreme Court had categorically 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. 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 regularised. It, therefore, follows that it is only from the date on which his services are regularised that such appointee can count his seniority in the cadre.
25. In the instant case, the authorities on the strength of the several government orders giving retrospective effect to the regularisation 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 _______________ Page 5 of 10 https://www.mhc.tn.gov.in/judis 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 temporarily under Rule 10(a)(i)(1), was to be counted for determining their seniority.
The decision of this Court in L. Chandrakishore Singh [(1999) 8 SCC 287 : 1999 SCC (L&S) 1460] 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.
26. We, therefore, set aside the order passed by the High Court and direct the respondents concerned to redetermine the seniority of the appellants in relation to the promotees after reckoning the starting point of seniority of such promotees from the date on which their services were regularised and not from the date of their initial appointment under Rule 10(a)(i)(1) of the General Rules.”
7.The learned Counsel for the first respondent contended that the Writ Petitioners were appointed and the seniority list was published on 10.10.2013 and their seniority was fixed at Sl.No.98 and 104. However, without giving an opportunity, their seniority was revised and downgraded on 02.01.2014, which is without following the principles of natural justice and the appellants had not given any reasons for refixing the seniority.
8.The point for consideration is whether the seniority has to be fixed from the date of appointment into service or their seniority has to be taken into _______________ Page 6 of 10 https://www.mhc.tn.gov.in/judis consideration from the date of regularisation of service.
9.The learned Single Judge had referred to Rule 35(aa) of the Tamil Nadu State and Subordinate Service Rules. It is the contention of the respondents/Writ Petitioners that though they were appointed in the year 1986 and 1989, their services were regularised on completion of ten years, however, monetary benefits were granted only from 25.10.2006, through G.O.Ms.No.55, Rural Development and Panchayat Raj Department, dated 15.06.2006. The main contention of the learned Additional Advocate General is that the seniority should be based on the date of reglarisation of service and not from the date of joining and that the third appellant/third respondent has misquoted the rule and had referred Rule 35(aa) of the Tamil Nadu State and Subordinate Service Rules.
10.The first limb of the order passed by the learned Single Judge is regarding no opportunity was given while downgrading the seniority of the respondent and before carrying out such exercise, no opportunity was given to the respondents. On the above two grounds, the learned Single Judge had directed the appellants to refix the seniority based on the respective dates of their _______________ Page 7 of 10 https://www.mhc.tn.gov.in/judis appointment and not based on the date of joining in their service.
11.The learned Additional Advocate General relied on a judgment of K.Madalaikumar's case (referred supra). However, the said judgment was not brought to the notice of the learned Single Judge. As rightly contended by the learned Additional Advocate General that the seniority of a employee, who appointed temporarily to a particular post without recourse to the recruitment rules, can be counted from the date on which his service was regularised.
12.The service matrix of the first respondent, being appointed as Fitter Assistant on 17.07.1986 and the second respondent was assistant as Fitter Assistant on 09.03.1989. On completion of ten years, their services were regularised on 16.07.1996 and 08.03.1999. However, monetary benefits were given only from 25.10.2006.
13.Hence, the seniority of the Writ Petitioner herein initially determined considering the date of their initial appointment, as starting point of their seniority was not proper, as the case of the respondents squarely falls as per the _______________ Page 8 of 10 https://www.mhc.tn.gov.in/judis ration laid down by the Hon'ble Supreme Court, in K.Madalaimuthu's case (referred supra) and we are inclined to allow this Writ Appeal.
14.In the result, the Writ Appeal stands allowed and order passed by the learned Single Judge in W.P(MD)No.17449 of 2014, dated 25.01.2018 is set aside. No costs. Consequently, connected miscellaneous petition is closed.
[T.K.R., J.] & [N.S., J.]
17.12.2024
Internet :Yes/No
NCC :Yes/No
Index :Yes/No
cmr
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RMT.TEEKAA RAMAN, J.
and
N.SENTHILKUMAR, J.
cmr
W.A.(MD)No.1614 of 2018
17.12.2024
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