Madras High Court
R.Venkatasekar vs R.Hariharasubramanian on 12 December, 2023
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
W.A.(MD) No.1522 of 2022 etc. batch
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.12.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
and
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
W.A.(MD) Nos.1522 of 2022 & 2, 77, 78, 79, 141, 142, 213, 240, 624,
625, 808 & 1015 of 2023
and
C.M.P.(MD) Nos.12769 of 2022, 45, 981, 992, 993, 1896, 1898, 1899,
2582, 2694, 5695, 5697, 5699, 5829, 5830, 6559, 7791 of 2023
W.A.(MD) No.1522 of 2022:
R.Venkatasekar ... Appellant
-vs-
1.R.Hariharasubramanian
2.P.Kumar
3.S.Surya
4.P.Uma
5.The State of Tamil Nadu
rep.by its Principal Secretary
to Government
Revenue and Disaster Management
Department Service Wing (Ser.3(2)), Section
Fort St.George, Chennai-600 009
_______________
Page 1 of 37
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.1522 of 2022 etc. batch
6.The Principal Secretary /
Commissioner of Revenue Administration
Chepauk, Chennai-600 005
7.The District Collector
Tirunelveli District
Tirunelveli ... Respondents
Writ Appeal filed under Clause 15 of Letters Patent to set aside the
order, dated 06.12.2022, passed in W.P.(MD) No.24006 of 2022, on the file of
this Court.
For Appellant : Ms.Porkodi Karnan
for M/s.Polax Legal Solutions
For Respondents : Mr.M.Ravi
for Mr.Aayiram K.Selvakumar for R1 to R4
Mr.R.Baskaran
Additional Advocate General
assisted by Mr.T.Amjad Khan
Government Advocate for R5 to R7
COMMON JUDGMENT
[Judgment of the Court was made by S.M.SUBRAMANIAM, J.] These writ appeals are directed against the orders of the learned Single Judges, dated 20.12.2021, 06.12.2022, passed in W.P.(MD) Nos.8670 of 2016, 16652, 21601, 21602, 21703, 21783, 22627, 24006, 24313, 24761 & 27356 of 2022, setting aside the revised panel published by the appellant – _______________ Page 2 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch Government in pursuance of the Judgment of the Honourable Supreme Court of India, dated 11.09.2018 in C.A.Nos.9334 to 9336 of 2019 in S.L.P.(C) No. 5588, 5589 and 7651 of 2006.
2. While hearing the writ appeals, we have carefully considered the spirit of the above Judgment of the Honourable Supreme Court and also the arguments advanced by the respective learned counsels of the parties to the lis on hand.
3. An attempt was made by the respondents / writ petitioners to establish that while implementing the Judgment of the Honourable Supreme Court in respect of the employees, who have secured appointment to the post of Deputy Tahsildar by way of transfer, the principles of natural justice had not been followed. It is further contended that though the Apex Court held that the panel is to be redrawn retrospectively with effect from the date of Judgment i.e. 11.09.2018, the procedures as contemplated under the Service Rules have not been followed by the appointing authority and the appellate authority, which resulted in filing number of writ petitions before this Court challenging the revised panel prepared by the concerned District Collectors. _______________ Page 3 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch
4. Let us first consider the directions issued by the Honourable Supreme Court in the Judgment dated 12.03.2019 in Civil Appeal Nos.251 – 256 of 2015 and etc. batch. Paragraph No.19 of the said Judgment reads as under:
“19. In the result, the impugned judgement of the High Court is set aside and these appeals are allowed with the following observations and directions:-
(i) Promotions of the Direct recruit Assistants effected between 07.02.1995 and 08.04.2009 and their seniority in their respective positions as on date, shall not be disturbed;
(ii) The benefit extended to the graduate promotee Assistants by placing them on par with Direct recruit Assistants is to be given effect to prospectively from the date of judgment of this Court dated 08.04.2009 rendered in the case of M. Rathinaswami v. State of T.N. reported in (2009) 5 SCC 625;
(iii) After 08.04.2009, the promotion to the post of Deputy Tahsildar from its feeder category, i.e., Direct recruit Assistants and Promotee graduate Assistants, shall be strictly in accordance with the judgment of this Court referred above, i.e., treating Promotee graduate Assistants on par with Direct recruit Assistants. Such promotion _______________ Page 4 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch shall be given effect to, without reference to any interim order(s) passed by the High Court;
(iv) If any panels are prepared, and promotions are given, after 08.04.2009 for promoting the Assistants to the post of Deputy Tahsildars in Tamil Nadu Revenue Subordinate Service contrary to the judgment of this Court dated 08.04.2009, such panels and promotions have to be revised so as to bring in conformity with the judgment of this Court referred above;
(v) By virtue of the judgment of this Court dated 08.04.2009, referred above, Promotee graduate Assistants are placed on par with Direct recruit Assistants. So far as Promotee non-graduate Assistants are concerned, the amended rule holds the field, which gives preferential treatment to Direct recruit Assistants, over Promotee non-
graduate Assistants;
(vi) Promotee non-graduate Assistants, who are
impleaded as party respondents in these
appeals, are not entitled to any directions in their favour, as much as, all these appeals are preferred by Direct recruit Assistants;
(vii) While implementing the above directions, if the seniority and promotion, of the persons who are already retired or dead, is affected in any _______________ Page 5 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch manner, payments made on account of such seniority and promotion earlier granted to them during the interregnum period, i.e., from 08.04.2009 till this date shall not be recovered.
(viii) So far as Promotee non-graduate Assistants are concerned, it is open for them to pursue with the Government for appropriate amendment to the Rules, in which event we keep it open to Government to consider such request on its own merits.”
5. The above Judgment of the Honourable Supreme Court has been implemented by the Government vide G.O.(Ms) No.87, Revenue and Disaster Management Department, Services Wing, [Ser.3(2)] Section, dated 06.03.2019. Paragraph No.4 of the said Government reads as under:
“4.The Government, after careful examination, have decided to accept the recommendation of the Additional Chief Secretary / Commissioner of Revenue Administration and also to implement the orders of the Hon'ble Supreme Court of India dated 11.09.2018 in Civil Appeal No.9334/2018 to 9336/2018 in SLP [C] No.5588/2006, 5589/2006 and 7651/2006 in the following manner:-
a) to withdraw the earlier instructions of the Government issued in letter, dated 30.01.2006 in _______________ Page 6 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch view of the orders of the Hon'ble Supreme Court of India, dated 11.09.2018 in Civil Appeal No. 9334/2018 [Arising out of SLP [C] No. 5588/2006] and to issue specific direction to follow the rule of reservation in respect of Backward Class and Most Backward Class / DNC candidates hereafter as was done prior to 2004.
b) to re-draw the temporary panel of Deputy Tahsildar drawn from the year 2004 to 2018 by providing rule of reservation to the Backward Class and Most Backward Class / DNC candidates also along with Scheduled Caste / Scheduled Tribe candidates as per rules.”
6. The Revenue Administration and Disaster Management Department, in continuation of the above Government Order in G.O.(Ms) No. 87, dated 06.03.2019, issued a Circular, dated 29.06.2019, to all the District Collectors and the Authorities concerned, enumerating the procedures to be adopted while implementing the above Judgment of the Honourable Supreme Court. Paragraph Nos.8 and 9 of the said Circular read as under:
“8) After analyzing various factors into consideration the Apex Court in the batch of civil Appeals referred to above _______________ Page 7 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch have allowed the appeals by setting aside the impugned judgment of the High Court with the following observations & directions vide reference 7th cited:-
(i) Promotions of the Direct recruit Assistants effected between 07.02.1995 and 08.04.2009 and their seniority in their respective positions as on date, shall not be disturbed;
(ii) The benefit extended to the graduate promotee Assistants by placing them on par with Direct recruit Assistants is to be given effect to prospectively from the date of judgment of this Court dated 08.04.2009 rendered in the case of M.Rathinaswami v. State of T.N. reported in (2009) 5 SCC 625;
(iii) After 08.04.2009, the promotion to the post of Deputy Tahsildar from its feeder category, i.e., Direct recruit Assistants and Promotee graduate Assistants, shall be strictly in accordance with the judgment of this Court referred above, i.e., treating Promotee graduate Assistants on par with Direct recruit Assistants. Such promotion shall be given effect to, without reference to any interim order(s) passed by the High Court.
(iv) If any panels are prepared and promotions are given, after 08.04.2009 for promoting the Assistants to the post of Deputy Tahsildars in _______________ Page 8 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch Tamil Nadu Revenue Subordinate Service contrary to the judgment of this Court dated 08.04.2009, such panels and promotions have to be revised so as to bring in conformity with the judgment of this Court referred above.
(v) By virtue of the judgment of this Court dated 08.04.2009, referred above, Promotee graduate Assistants are placed on par with Direct recruit Assistants. So far as Promotee non-graduate Assistants are concerned, the amended rule holds the field, which gives preferential treatment to Direct recruit Assistants, over Promotee non-
graduate Assistants;
(vi) Promotee non-graduate Assistants, who are
impleaded as party respondents in these
appeals, are not entitled to any directions in their favour, as much as, all these appeals are preferred by Direct recruit Assistants.
(vii) While implementing the above directions, if the seniority and promotion of the persons who are already retired or dead, is affected in any manner, payments made on account of such seniority and promotion earlier granted to them during the interregnum period i.e., from 08.04.2009 till this date shall not be recovered. _______________ Page 9 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch
(viii) So far as Promotee non-graduate Assistants are concerned, it is open for them to pursue with the Government for appropriate amendment to the Rules, in which event we keep it open to Government to consider such request on its own merits.
9). The directions issued in the above judgments are to be implemented in letter and spirit in the following manner:-
I. Promotion of the DRAs effected between 07.02.1995 and 08.04.2009 with their seniority in the respective position as on date shall not be disturbed.
II. The direction issued in Para 2 of judgment is to be implemented in letter and spirit by all the District Collectors. Since the Apex Court has extended the benefit to the graduate Promotee Assistants by placing them on par with Directly Recruited Assistants with prospective effect from 08.04.2009 the list drawn up to that date need not be revised.
III. As observed by the Apex Court it is needless to say that all the panels for the promotions to the post of Deputy Tahsildars shall be strictly iin accordance with this judgment since it _______________ Page 10 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch supersedes all the earlier interim orders passed by the courts.
IV. The direction issued in Para 19(IV) of the Supreme Court judgment has to be enforced so as to bring in conformity with the judgment of the court dated 08.04.2009.
V. By virtue of the judgment of this Court the
amended rule holds the field which gives
preferential treatment to Directly Recruited
Assistants over promotee non-graduate
Assistants. In this regard the promotee non-
graduate Assistants may be placed below the carried over vacancies and Directly Recruited Assistants / graduate promotee Assistants. VI. Regarding implementation of the Apex Court order, if the persons who are already retired or dead are affected in any manner, payments made on account of such seniority and promotion earlier granted to them during the interregnum period i.e. from 08.04.2009 to till date shall not be recovered.
VII. While implementing the orders of the Apex Court dated 12.03.2019 the rule of reservation as ordered in G.O.Ms.No.55, P&AR dept., dated 08.04.2010 with 200 points roasters has to be strictly adopted including the Directly Recruited _______________ Page 11 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch Assistants [Regarding the implementation of rule of reservation to other notified community like BC/MBC/DNC the same may be implemented after the vacation of interim stay granted in W.P. (MD) No.8706/2019 filed by Thiru.Ramesh and 5 others of Thoothukudi District Revenue Unit before the Hon'ble Madurai Bench of Madras High Court.”
7. In view of the Government Order in G.O.(Ms) No.87, Revenue and Disaster Management Department, Services Wing, [Ser.3(2)] Section, dated 06.03.2019, and the consequential Circular, dated 29.06.2019, issued by the Revenue Administration and Disaster Management Department, the respective District Collectors implemented the Judgment of the Honourable Supreme Court and the Government Order. Thus, the Government Order issued in G.O.(Ms) No.87, dated 29.06.2019, issued in pursuance of the Judgment of the Apex Court is intact, so also the consequential Circular dated 29.06.2019.
8. The revised panel published by the respective District Collectors are the subject matter of the fresh writ petitions before the Writ Court mainly _______________ Page 12 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch on the grounds that the procedures, as contemplated under the Service Rules, have not been followed; the Judgment of the Honourable Supreme Court was misinterpreted by the Authorities concerned; the names of certain unqualified persons were included in the revised panel, which is impugned in the writ proceedings and the representations / objections on the revised panel submitted by some of the employees were not considered either by the District Collect or by the Appellate Authority. Apart from these grounds, it is contended that still there are many number of vacancies in the post of Deputy Tahsildar and the Authorities concerned ought to have accommodated the respondents – writ petitioners in those vacancies in stead of sending them back to their original services (i.e. Ministerial Services), from which they were appointed into the Revenue Services by way of recruitment by transfer of service.
9. In the context of the Judgment of the Honourable Supreme Court and with reference to the grounds raised by the respondents – writ petitioners before the Writ Court, it is necessary for us to consider the relevant Rules as applicable to the post of Deputy Tahsildar. _______________ Page 13 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch
10. Rule-2 of the Tamil Nadu Revenue Subordinate Service Rules provides “Definitions”. Clause (b) of Rule-2 defines the post of “Deputy Tahsildar” as follows:
“(b) “Deputy Tahsildars” shall mean and include Taluk Deputy Tahsildars, Assistant Tahsildars, Huzur Head Clerks, Special Deputy Tahsildars on Settlement Duty, Assistant Agricultural Income-Tax Officers in the category of Deputy Tahsildars and Deputy Tahsildars on other special duties.”
11. Category-2 of Rule-3 of the Tamil Nadu Revenue Subordinate Service Rules provides “Appointment” to the post of Deputy Tahsildar. It reads as follows:
“Recruitment by transfer from the members of the Tamil Nadu Secretariat Service or from the members of the Tamil Nadu Ministerial Service employed in the Revenue Department including the offices of the Board of Revenue (Land Revenue), the Board of Revenue (Food Production), Board of Revenue (Settlement of Estates), the Commissioner of Civil Supplies, the Director of Survey and Settlements, the Director of Harijan and Tribal Welfare, the Director of Backward Classes, the Director of Rehabilitation, the Commissioner of Agricultural Income Tax-cum-Board of _______________ Page 14 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch Revenue (Agricultural Income Tax), the Director of Urban Land Ceiling and Urban Land Tax-cum-Board of Revenue (Urban Land Ceiling and Urban Land Tax), the Board of Revenue (Land Reforms) and the Revenue Settlement Parties.”
12. Rule 4 of the Tamil Nadu Revenue Subordinate Service Rules denotes the “appointing authority”. As per Rule 4, the appointing authority for the post of Deputy Tahsildar is the District Collector of the district concerned.
13. Rule 6 of the Tamil Nadu Revenue Subordinate Service Rules provides “Reservation of appointments”. It reads as under:
“6. Reservation of appointments.-Subject to the provisions of Rule 5(d), the rule of reservation of appointments [Section 27 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016] shall apply to the category of Deputy Tahsildars in each district at the time of selection for inclusion in the list:
Provided that this rule shall not apply to the appointment to the said category of Deputy Tahsidlars of any person who was recruited to the Tamil Nadu Ministerial Service as an Upper Division Clerk in the Revenue Department for employment as Probationary Revenue Inspector.” _______________ Page 15 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch
14. Rule 7 of the Tamil Nadu Revenue Subordinate Service Rules provides “qualifications”. Sub Rule (a) of Rule 7 contemplates that no person shall be eligible to have his name included in the list of approved candidates for appointment as Deputy Tahsildar unless he possesses the qualifications specified in Annexure III on the 15th September of the year to which the list relates. Sub Rule (b) of Rule 7 contemplates that no Deputy Tahsildar shall be eligible to have his name included in the list of approved candidates for appointment as Tahsildars, if he has not completed police training for two months and exercised the magisterial powers for a period of four months to the satisfaction of the District Magistrate concerned on the first day of July of the year to which the list relates. Therefore, the Sub Rules (a) and (b) in unambiguous terms prescribe the training as mandatory to be undergone by the candidates by screening themselves for appointment to the post of Deputy Tahildar by way of transfer.
15. Rule 8 of the Tamil Nadu Revenue Subordinate Service Rules speaks about “probation” and on declaration of probation, the successful employees will become a permanent member of the Tamil Nadu Revenue Subordinate Service.
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16. Rule 10 of the Tamil Nadu Revenue Subordinate Service Rules speaks about “postings and transfers”.
17. Therefore, it is unambiguous that the post of Deputy Tahsildar borne from and out of the provisions of the Tamil Nadu Revenue Subordinate Service is independent and unconnected with the other services, from which the persons were recruited by way of transfer of service.
18. The Government Order issued in G.O.(Ms) No.87, Revenue and Disaster Management Department, Services Wing [Ser.3(2)] Section, dated 06.03.2019, states that the Judgment of the Honourable Supreme Court dated 11.09.2018 in C.A.Nos.9334 to 9336 of 2019 in S.L.P.(C) No.5588, 5589 and 7651 of 2006 is to be implemented by all the authorities concerned and the earlier circulars / instructions issued by the Government have been withdrawn. Consequently, the Government directed the authorities concerned to redraw the temporary panel of Deputy Tahsildar drawn from the year 2004 to 2018 by providing the rule of reservation to the Backward Class and Most Backward Class / DNC candidates also along with Scheduled Caste / _______________ Page 17 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch Scheduled Tribe candidates as per rules. Therefore, it is necessary for the subordinate authorities / appointing authorities to redraw the temporary panel of Deputy Tahsildar drawn from the year 2004 to 2018 by providing the rule of reservation. In respect of the panel already published by the authorities concerned from the year 2004 to 2018, the rule of reservation was not provided in view of the fact that the Tamil Nadu Administrative Tribunal struck down Rule 6 of the Tamil Nadu Revenue Subordinate Service Rules. Since the Honourable Supreme Court reversed the Judgment of the Division Bench of this Court and upheld the validity of the Rule 6 of the Tamil Nadu Revenue Subordinate Service Rules, it became necessary and eminent for the Government to restore the rule of reservation with retrospective effect from the date on which the rule of reservation was struck down. That exactly is the reason why the Honourable Supreme Court directed the Government to redraw the temporary panel of Deputy Tahsildar. Therefore, it is necessitated for the Government to redraw the temporary panel of Deputy Tahsildar from the year 2004 to 2018 by providing the rule of reservation in the light of the law declared by the Honourable Supreme Court. Accordingly, G.O.(Ms) No. 87, Revenue and Disaster Management Department, Services Wing [Ser.3(2)] Section, dated 06.03.2019 and the consequential Circular, dated 29.06.2019, _______________ Page 18 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch were issued providing procedures for preparation of redrawal of temporary panel of Deputy Tahsildar by providing the rule of reservation. The procedures contemplated in the said Circular are clear that the District Collectors have to adopt the Government Order and Circulars and issue revised temporary panel of Deputy Tahsildar for the purpose of setting right the issue relating to rule of reservation in the light of the Judgment passed by the Honourable Supreme Court.
19. The revised temporary panel of Deputy Tahsilar was under
challenge before the Writ Court. The Writ Court, while dealing with the issue, observed that the Judgment of the Honourable Supreme Court is to be implemented in its letter and spirit. While observing so, the Writ Court persuaded by the arguments advanced by the learned counsel for the writ petitioners that the writ petitioners have not been provided with an opportunity to defend their case in respect of the revised temporary panel of Deputy Tahsildar published by the District Collectors concerned. The learned Single Judge concentrated on the point that principles of natural justice have been violated. Even while undertaking the process of implementing the Judgment of the Honourable Supreme Court, the authorities concerned are _______________ Page 19 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch bound to provide an opportunity to the aggrieved employees to represent their case, which is otherwise contemplated under the relevant Service Rules.
20. As far as the rule of reservation is concerned, Rule 6 of the Tamil Nadu Revenue Subordinate Service Rules should be read along with Section 27(f) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016.
21. Section 27 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 provides “reservation of appointment”. Section 27(f) reads as under:
“(f) If qualified and suitable candidates belonging to any of the Backward Classes, Backward Class Muslims including the Most Backward Classes and Denotified Communities are not available for selection for appointment by recruitment by transfer or by promotion in the turns allotted to them, the turns so allotted shall lapse and the selection for appointment for the vacancies shall be made by the next turn in the order of rotation:
Provided that if qualified and suitable candidates belonging to any of the Scheduled Castes and Scheduled Tribes are not available for selection for _______________ Page 20 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch appointment by recruitment by transfer or by promotion in the turns allotted to them in the cycle, the turns so allotted to them shall not lapse and the number of candidates to be selected in that recruitment shall be reduced by the number of candidates belonging to Scheduled Castes and Scheduled Tribes not available for selection against the turn allotted to them. The unfilled vacancies reserved for the Scheduled Castes and Scheduled Tribes to be filled by recruitment by transfer or by promotion shall be carried over to four consecutive recruitment years, namely, year of recruitment plus three subsequent recruitment years. The selection for appointment to the vacancies in the next recruitment shall be made first for the carried over turns and then the normal rotation shall be followed. If qualified and suitable candidates belonging to any of the Scheduled Castes and Scheduled Tribes are not available for selection for appointment by recruitment by transfer or by promotion even thereafter, the vacancies reserved for those categories shall first be dereserved by obtaining the orders of the Government before filling them by candidates in the next turn in the order of rotation:
Provided further that the normal number of vacancies reserved for the candidates belonging to the Scheduled Castes and Scheduled Tribes and the carried _______________ Page 21 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch forward vacancies as specified in the first proviso shall not exceed fifty per cent of the total number of vacancies for a particular recruitment. If there be two vacancies only, one of them shall be treated as a reserved vacancy. If there be one vacancy only, it shall be treated as unreserved. The surplus of the fifty per cent shall be carried forward to the subsequent recruitment, subject to the condition that the vacancies carried forward do not become time barred due to their continued existence for more than three years. Selection for appointment to the earliest carried forward vacancies shall be made first:
Provided also that in the case of selection for appointment by direct recruitment, with effect on and from the 1st April 1989, there shall be a ban on dereservation of vacancies reserved for the candidates belonging to any of the Scheduled Castes and Scheduled Tribes, Most Backward Classes and Denotified Communities to be appointed by direct recruitment. But, the above ban on dereservation of vacancies shall not be applicable to the vacancies reserved for the Backward Classes (other than Most Backward Classes and Denotified Communities), Backward Class Muslims and, therefore, if qualified and suitable candidates belonging to any of the Backward Classes (other than Most Backward Classes and Denotified Communities), Backward Class Muslims are _______________ Page 22 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch not available for appointment, the turn so allotted to them shall lapse and the vacancy shall be filled by the next turn in the order of rotation. If sufficient number of qualified and suitable candidates belonging to any of the Scheduled Castes and Scheduled Tribes, Most Backward Classes and Denotified Communities are not available for selection for appointment for the vacancies reserved for them by direct recruitment in the first attempt of recruitment, then, a second attempt shall be made for selection of the candidates belonging to the respective communities by direct recruitment in the same recruitment year or as early as possible before the next direct recruitment for selection of candidates against such vacancies. If the required number of candidates belonging to such communities are not available even then, the vacancies for which selection could not be made shall remain unfilled until the next recruitment year treating them as “backlog” vacancies. In the subsequent year, when direct recruitment is made for the vacancies of that year, namely, the current vacancies, the “backlog” vacancies shall also be announced for direct recruitment, keeping the vacancies of the particular recruitment year, namely, the current year vacancies and the “backlog” vacancies as two distinct groups as illustrated in Schedule-IX. The selection for appointment for the next direct recruitment _______________ Page 23 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch shall be made first for the “backlog” vacancies and then the normal rotation shall be followed:
Provided also that, in exceptional cases, for posts in Groups A and B for which suitable candidates belonging to the Scheduled Castes, Scheduled Tribes, Most Backward Classes or Denotified Communities are not available against the respective reserved vacancies and the non-filling up of posts causes hardship for running the administration, the Government may grant exemption from carrying forward of such vacancies and the procedure therefor shall be as specified in Schedule-IX:
Provided also that when a candidate selected for appointment against a vacancy for Scheduled Castes, Scheduled Tribes, Most Backward Classes / Denotified Communities, Backward Classes, Backward Class Muslims or General Turn, does not join duty in the post for which he is appointed or his provisional selection for that post is cancelled for any reason, a candidate in his place shall be appointed from the respective category and in accordance with the ranking from the reserve list:
Provided also that the candidates appointed from the reserve list shall be placed below all the candidates appointed from the regular list in the same order in which the vacancies have arisen:
Provided also that the reserve list shall be operated even against the vacancies caused due to the fact that _______________ Page 24 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch the candidates have joined duty, but left thereafter while the reserve list is in force.
22. The Writ Court formed an opinion that the respective District Collectors, who have redrawn the temporary panel of Deputy Tahsildar from the year 2004 to 2018, have failed to provide an opportunity to the aggrieved persons, who were reverted back to their original service consequent to the orders of the Honourable Supreme Court, and allowed the writ petitions.
23. The State has preferred the present writ appeals on the ground that they have implemented the Judgment of the Honourable Supreme Court dated 11.09.2018 by issuing a Government Order in G.O.(Ms) No.87, Revenue and Disaster Management Department, Services Wing [Ser.3(2)] Section, dated 06.03.2019 and the consequential Circular, dated 29.06.2019, which are under challenge before the Honourable Supreme Court in S.L.P.(C) No.3792 of 2021. The provisions of the Tamil Nadu Revenue Subordinate Service Rules are also intact, since the rule of reservation was restored by the Honourable Supreme Court. In this backdrop, the District Collectors concerned have redrawn the temporary panel of Deputy Tahsildar by providing the rule of reservation.
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24. With regard to the ground raised by the learned counsel for the respondents / writ petitioners that no opportunity was granted to the writ petitioners, learned Additional Advocate General submitted that the revised temporary panel of Deputy Tahsildar was prepared and it was notified by the District Collectors concerned. The revised temporary panel of Deputy Tahsildar for the year 2004 to 2018 was notified, wherein a special note has been provided that any person who wishes to make any representation against non-inclusion of his / her name in the list should do so within a period of two months (60 days) from the date of receipt of the communication to the Principal Secretary / Commissioner of Revenue Administration, Chepauk, Chennai-5. Therefore, an opportunity was given to the aggrieved employees to submit their objections / representations, if any error crept in or any ineligible candidates overlooked the eligible candidates or otherwise.
25. The contention of the respondents – writ petitioners that even prior to the publication of the revised temporary panel of Deputy Tahsildar, a show cause notice has to be issued, is unknown to service jurisprudence. The publication of panel itself is a notice to the employees concerned. If they are _______________ Page 26 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch aggrieved from and out of the panel published, an opportunity was provided to submit their objections / representations and they are expected to avail the said opportunity and submit their objections / representations. The said procedure is adopted in terms of Section 45 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016.
26. Yet another question arises, if objection / representation is submitted and the Commissioner or Government has not disposed of the same, Rule 5(b) of Section 28 of the Tamil Nadu Revenue Subordinate Service Rules provides that no additions to or removals from any of the lists of approved candidates shall be made without the approval of the selecting authority concerned. The selecting authority is the Commissioner of Revenue Administration. That exactly is the reason why the revised temporary panel of Deputy Tahsildar stipulates that the objection / representation is to be submitted to the Commissioner of Land Administration, within a period of sixty days. In the event of any grievance further exists after the order passed by the selecting authority, then the aggrieved persons may approach the reviewing authority / Government or the Writ Court, as the case may be. Therefore, we do not find that the principles of natural justice have been _______________ Page 27 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch violated while preparing the revised temporary panel of Deputy Tahsildar. More so, it was done in pursuance of the directions issued by the Honourable Supreme Court.
27. Yet another contention raised on behalf of the respondents / writ petitioners that the Apex Court in its Judgment has not referred the Tamil Nadu Revenue Subordinate Service Rules.
28. The above contention is also incorrect, because the Apex Court in the order dated 11.09.2018 in C.A.Nos.9334 to 9336 of 2019 in S.L.P. (C) No.5588, 5589 and 7651 of 2006, has ruled as follows:
“11. If that is so, the rule of reservation set out in Rule 22 of the Rules read with the specific provisions of the Tamil Nadu Commercial Taxes Subordinate Service Rules, Tamil Nadu Registration Subordinate Service Rules and the Tamil Nadu Revenue Subordinate Service Rules would govern the matter and benefit of reservation would be available in posts of Deputy Registrar, ACTO and Sub-Registrar Grade II for Backward Class category also following recruitment by transfer to the said posts.” _______________ Page 28 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch
29. Therefore, the Honourable Supreme Court has clearly indicated that the Judgment would be applicable to the Tamil Nadu Revenue Subordinate Service also. More so, as we have pointed out earlier, the Government Order in G.O.(Ms) No.87, Revenue and Disaster Management Department, Services Wing, [Ser.3(2)] Section, dated 06.03.2019, and the consequential Circular, dated 29.06.2019, are sub judice before the Honourable Supreme Court in S.L.P.(C) No.3792 of 2021. Even the revised temporary panel of Deputy Tahsildar is subject to the final orders to be passed by the Honourable Supreme Court in the said Special Leave Petition. However, at present, the revised temporary panel of Deputy Tahildar is inconsonance with the Tamil Nadu Revenue Subordinate Service Rules, which is upheld by the Apex Court in its Judgment dated 11.09.2018. The said Judgment is to be given effect to with effect from 11.09.2018, since the Judgments are to be implemented retrospectively is the settled principle. Thus, the arguments advanced by the learned counsels for the respondents / writ petitioners, in this context, deserve no merit consideration. _______________ Page 29 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch
30. Another contention raised is that names of Scheduled Caste / Scheduled Tribe candidates were considered while preparing the revised temporary panel of Deputy Tahsildar from the year 2004 to 2018. Section 27 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 read with Rule 6 of the Tamil Nadu Revenue Subordinate Service Rules provides reservation to Scheduled Caste / Scheduled Tribe candidates and the rule of reservation since not adopted from the year 2004, the Apex Court directed to redraw the temporary panel by providing the rule of reservation.
31. While implementing the rule of reservation with retrospective effect, the consequence would be that many number of Scheduled Caste / Scheduled Tribe candidates, whose names were not included earlier, will get an opportunity with retrospective effect in the revised temporary panel. That exactly is the reason why in the revised temporary panel, several Scheduled Caste / Scheduled Tribe candidates' names have been included. This being the offshoot of the implementation of the rule of reservation, we do not find any infirmity in the revised temporary panel prepared by the District Collectors concerned.
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32. Learned counsels for the respondents / writ petitioners further contended that the promoted employees were reverted back to their original cadre, which is impermissible and bad in law.
33. We are in disagreement with the said contention in view of the fact that it is not a promotion. “Promotion” and “Recruitment by Transfer” are different and distinct. “Promotion” cannot be compared with “Recruitment by Transfer”, which is normally done from one service to another service by way of appointment.
34. Insofar as the case on hand is concerned, Rule 8 of the Tamil Nadu Revenue Subordinate Service Rules contemplates probation for the Deputy Tahsildar, who were recruited by way of transfer of service. It is an appointment to the Tamil Nadu Revenue Subordinate Service and such an appointment is made by virtue of the qualifications prescribed and by way of selection. Once the appointment by way of selection is made under the Special Rules, namely, Tamil Nadu Revenue Subordinate Service Rules and it provides declaration of probation, then the rule of reservation is to be applied as contemplated under the Rule 6 of the Tamil Nadu Revenue Subordinate _______________ Page 31 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch Service Rules. When a person is selected and appointed from one service to another service, it is to be constructed as an independent appointment and therefore, the arguments advanced by the learned counsel for the respondents / writ petitioners that the writ petitioners, who were promoted, were reverted back to their original cadre is a misconception and it runs counter to the Judgment of the Apex Court, dated 11.09.2018.
35. In fact consequent to the implementation of the Judgment of the Apex Court and in view of the redrawal of the temporary panel of Deputy Tahsildar, the respondents / writ petitioners were sent back to their original services (i.e.Ministerial Services) and if at all any vacancies are available in the cadre of Deputy Tahsildar, these candidates, who have been sent back to their original services, may be accommodated by the authorities concerned by taking an administrative decision and by following the procedures as contemplated.
36. With regard to the finding of the learned Single Judge that the doctrine of proportionality is to be applied, the same has no application with reference to the facts and circumstances of the case on hand, since the post of _______________ Page 32 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch Deputy Tahsildar is filled up through recruitment by way of transfer of service and it is to be construed as fresh appointment, wherein probation is to be declared and in the event of not declaring the probation, those candidates may be sent back to their original service. Thus, the method of appointment to the pose of Deputy Tahsildar has not been considered by the learned Single Judge while adopting the principle of proportionality.
37. The learned Single Judge has impressed upon the ground that the authorities concerned have violated the principles of natural justice. However, we find that the revised temporary panel of Deputy Tahsildar was notified and in the absence of any representation by the aggrieved employee, under Section 45 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016, the said panel published shall be deemed to be final. Therefore, we are convinced with the ground raised by the appellant – State.
38. Even in certain cases, the aggrieved employees are of the opinion that some ineligible candidates have overlooked them in the revised temporary panel of Deputy Tahsildar prepared in pursuance of the implementation of the Judgment of the Honourable Supreme Court dated _______________ Page 33 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch 11.09.2018. If so, they are at liberty to approach the Appellate Authority or the Reviewing Authority as the case may be for the purpose of reconsidering their names in order to rectify the error, if any occurred.
39. Accordingly, we pass the following orders:
(i) The impugned orders dated 20.12.2021, 06.12.2022, passed in W.P.(MD) Nos.8670 of 2016, 16652, 21601, 21602, 21703, 21783, 22627, 24006, 24313, 24761 & 27356 of 2022, are set aside.
(ii) The writ appeals are allowed with the above observations.
(iii) However, the appellant – Government shall consider the case of the respondents / writ petitioners for grant of appointment by way of transfer of service to the post of Deputy Tahsildar, if vacancies are available and subject to eligibility and objections if any submitted by them independently with reference to the grievances relating to the appointment of the ineligible candidates to the post of Deputy Tahsildar.
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(iv) It is needless to state that the qualifications prescribed under the Tamil Nadu Revenue Subordinate Service Rules are to be scrupulously followed while appointing the candidates to the post of Deputy Tahsildar by way of transfer of service.
(v) No costs. Consequently, connected miscellaneous petitions are closed.
[S.M.S., J.] [V.L.N., J.]
12.12.2023
(2/2)
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
krk
To:
1.The Principal Secretary to Government, Revenue and Disaster Management Department Service Wing (Ser.3(2)), Section State of Tamil Nadu, Fort St.George, Chennai-600 009.
2.The Principal Secretary / Commissioner of Revenue Administration, Chepauk, Chennai-600 005.
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3.The District Collector, Tirunelveli District, Tirunelveli.
_______________ Page 36 of 37 https://www.mhc.tn.gov.in/judis W.A.(MD) No.1522 of 2022 etc. batch S.M.SUBRAMANIAM, J.
and V.LAKSHMINARAYANAN, J.
krk W.A.(MD) Nos.1522 of 2022 & 2, 77, 78, 79, 141, 142, 213, 240, 624, 625, 808 & 1015 of 2023 and C.M.P.(MD) Nos.12769 of 2022, 45, 981, 992, 993, 1896, 1898, 1899, 2582, 2694, 5695, 5697, 5699, 5829, 5830, 6559, 7791 of 2023 12.12.2023 (2/2) _______________ Page 37 of 37 https://www.mhc.tn.gov.in/judis