Madras High Court
M.Jebarani vs D.Kamalakannan on 27 June, 2024
Author: R. Mahadevan
Bench: R.Mahadevan, Mohammed Shaffiq
Writ Appeal Nos.3484 of 2023 & 1110 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.06.2024
CORAM :
THE HONOURABLE MR. R.MAHADEVAN, ACTING CHIEF JUSTICE
and
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
Writ Appeal Nos.3484 of 2023 & 1110 of 2024
and
C.M.P.Nos.26980, 27366, 28425 of 2023, 2264, 2708, 2952, 4518, 6949, 1126,
1344, 1350, 2027 & 4628 of 2024
and
C.M.P. No.7972 of 2024
W.A.No.3484 of 2023
1. M.Jebarani
2. M.Vairamuthu
3. A.Devasahayam
4. S.Mahendra Singh
5. R.Venkatesan
6. A.Sakthi
7. P.Jayaraj
8. B.Heymaahgandhi
9. K.Shanthi
10. S.Latha .. Appellants
Versus
1. D.Kamalakannan
2. V.Kumar
3. M.Gandhi
4. M.Sakthi
5. C.Krishnamoorthi
6. M.Silambarasan
7. A.Hady Josephine Sen
8. M.Senthil Kumar
9. M.Selvi
Page 1/39
https://www.mhc.tn.gov.in/judis
Writ Appeal Nos.3484 of 2023 & 1110 of 2024
10. M.Dhivanmohideenkhan
11. R.Kandasamy
12. T.Pechimuthu
13. R.Deepa
14. I. Selvarani
15. T.Palani
16. G.Uma
17. M.Geetha
18. A.Chinnannan
19. Reeta Shree
20. S.Susikaran Bernardshaw
21. The State of Tamil Nadu,
rep. by its Health Secretary / Principal Secretary to Government,
Fort.St.George, Secretariat, Chennai -9.
22. The Secretary to Government,
Personnel and Adminstrative Reforms Department,
Government of Tamil Nadu,
Secretariat, Chennai - 9.
23. Tamil Nadu Public Service Commission,
Rep. by its Secretary, TNPSC Road,
V.O.C.Nagar, Park Town, Chennai 600 003.
24. The Director of Medical and Rual Health Services,
Medical Department, DMS Campus,
Teynampet, Chennai - 6.
25. Santhi Bala .. Respondents
Writ Appeal filed under Clause 15 of Letters Patent praying to set aside
the order dated 10.11.2023 made in WP.No.35788 of 2019.
For Appellants : Mr.G.Sankaran, Senior Counsel
for Mr.S.Nedunchezhiyan
For R1 to R18 & R20 : Mr.V.Prakash, Senior Counsel
for Mr.K.Krishnamoorthy
For R21, R22 & R24 : Mrs.Sneha, Special Counsel
For R23 : Mr.R.Bharanidharan,
Standing Counsel for TNPSC
For R19 : Died
For R25 : No appearance
Page 2/39
https://www.mhc.tn.gov.in/judis
Writ Appeal Nos.3484 of 2023 & 1110 of 2024
W.A.No.1110 of 2024
1. The State of Tamilnadu,
Rep. by its Health Secretary / Principal Secretary to Government,
Fort St. George, Secretariat, Chennai - 09.
2. The Secretary to Government,
Personnel and Administrative Reforms Department,
Government of Tamil Nadu,
Secretariat, Chennai 09.
3. The Director of Medical and Rural Health Services,
Medical Department, DMS Campus,
Teynampet, Chennai - 06.
.. Appellants
Versus
1. D.Kamalakkannan
2. V.Kumar
3. M.Gandhi
4. M.Sakthi
5. C.Krishnamoorthi
6. M.Silambarasan
7. A.Hady Josephine Sen
8. M.Senthilkumar
9. M.Selvi
10. M.Dhivanmohideenkhan
11. R.Kandasamy
12. T.Pechimuthu
13. R.Deepa
14. I.Selvarani
15. T.Palani
16. G.Uma
17. M.Geetha
18. A.Chinnannan
19. Reeta Shree
20. S.Susikaran Bernardshaw
21.Tamil Nadu Public Service Commission,
Rep. by its Secretary, TNPSC Road,
VOC Nagar, Park Town, Chennai 600 003.
22. Santhibala
Page 3/39
https://www.mhc.tn.gov.in/judis
Writ Appeal Nos.3484 of 2023 & 1110 of 2024
23. M.Jebarani
24. M.Vairamuthu
25. A.Devasahayam
26. S.Mahendra Singh
27. R.Venkatesan
28. A.Sakthi
29. P.Jayaraj
30. B.Heymaahgandhi
31. K.Shanthi
32. S.Latha .. Respondents
Writ Appeal filed under Clause 15 of Letters Patent praying to set aside
the order dated 10.11.2023 made in WP.No.35788 of 2019.
For Appellants : Mrs.Sneha, Special Counsel
For R1 to R18 & R20 : Mr.V.Prakash, Senior Counsel
for Mr.K.Krishnamoorthy
For R21 : Mr.R.Bharanidharan,
Standing Counsel for TNPSC
For R19 and R22 to 32 : No appearance
COMMON JUDGMENT
(Delivered by the Hon’ble ACTING CHIEF JUSTICE) Both these appeals arise out of the order dated 10.11.2023 passed by a learned Judge in W.P. No. 35788 of 2019.
2.At the outset, it may be stated that before the learned Judge, there were two categories of cases, one relating to Typists, who were originally selected and Page 4/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024 appointed by the Tamil Nadu Public Service Commission under Group IV service in 2009. They belong to the 2006-07 batch. This category of persons are regular appointees and the issue in this writ petition relates to the validity of the orders dated 20.01.2015 regularizing them as Assistants from 18.10.2012 i.e., the date on which they had been promoted temporarily as Assistants in the 2012-2013 panel; and the second relating to Junior Assistants who are MCI candidates appointed in the year 2005 on consolidated pay through Employment Exchange, following communal rotation. They were brought into regular time scale of pay as per G.O Ms.No.144, Health and Family Welfare Department, dated 30.04.2007, and their services were regularized with retrospective effect i.e., from 01.04.2007, vide G.O Ms.No.218, Health and Family Welfare Department, dated 09.09.2016.
3.Insofar as the first category is concerned, they were private respondents in WP No.35800 of 2019 filed by direct recruit Assistants who challenged the regularization orders granted to them in the post of Assistant.
4.Insofar as the second category is concerned, the very same direct recruit Assistants filed WP No.35788 of 2019 challenging the regularization of ad hoc promotees to the post of Assistant vide GO Ms.No.218 dated 09.09.2016. Page 5/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024
5.The learned Judge rendered a common order in both cases. In our opinion, the two categories of cases are distinct in law and since the circumstances of their appointments and the law applicable in respect of each of the categories being different, whether they could have been decided by way of a common order with common reasoning and findings is the matter of debate. This is primarily due to the reason that the very fundamental nature of the appointment in respect of both the categories is different.
6.The challenge in these writ appeals is to the order dated 10.11.2023 passed in W.P. No. 35788 of 2019 thereby allowing the prayer made by the writ petitioners therein. The writ petitioners therein are all directly recruited Assistants in the Directorate of Medical and Rural Health Services, Medical Department. They were appointed in the year 2012 against the substantive vacancies that arose during the year 2009-2011, duly notified by Tamil Nadu Public Service Commission (TNPSC) on 31.12.2010. They completed their probation satisfactorily. However, the issuance of an order declaring their probation was wantonly delayed, with ulterior motive of accommodating ad hoc and fortuitous appointees. While so, they preferred the aforesaid writ petition challenging the proceedings in G.O.(Ms).No.218 Health and Family Welfare Department, dated 09.09.2016 and consequential proceedings of the Director of Medical and Rural Health Services in Ref.No.78102/E2/1/2017 dated 26.12.2017, granting ad hoc Page 6/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024 promotions to the post of Assistants being regularised with undue seniority benefits, thereby affecting the accrued rights of service benefits of all the writ petitioners.
7.The learned Judge, after classifying the following categories, observed that the writ petitioners fall under the fourth category:
(i) MCI candidates being Junior Assistants or Steno Typist Grade III being promoted as Assistants;
(ii) Candidates appearing through special competitive exam Group IV, TNPSC being promoted as Assistants;
(iii) Group IV TNPSC Typist promoted as Assistants; and
(iv) directly recruited Assistants through TNPSC Group II.
8.Having categorised as above, the learned Judge framed a short question that needed to be answered and that was as to whether the writ petitioners therein have any rights accrued to them pursuant to their being appointed directly to the post of Assistants, after having cleared the examination on 30.07.2011, in furtherance of the Notification dated 31.12.2010.
9.After hearing the parties, the learned Judge observed that the argument of the counsel for the Department that once the temporary appointees were Page 7/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024 appointed on consolidated pay, they would automatically become eligible for seniority, cannot be countenanced. It was further held that the Tamil Nadu Public Service Commission has conducted written examination and selected the writ petitioners, finding them fit to be directly appointed to the post of Assistants. However, contrary to this method of recruitment to the post of Assistants, the candidates who were appointed on ad hoc basis entered into service in the feeder category who have not gone through the rigours of written examination. It was further held that merely on the basis of being in service as Junior Assistants or Steno Typist Grade III, they have been found eligible to the post of Assistants, which process of recruitment can only be termed as a back door entry in contrast to the regular direct recruitment process and that there was absolutely no rhyme or reason for the State to issue G.O.(Ms).No.218, almost close to five years after having held examination and found the writ petitioners eligible to the post of Assistants. Further, taking note of Rule 23(a) and Rule 33(a) of the Tamil Nadu State and Subordinate Service Rules, the learned Judge held that the appointing authority is invested only with the discretion to fix the date of initial appointment or a subsequent date to be the commencement of the date of probation and thus, the rules do not contemplate giving any retrospective effect to the appointment and therefore the action of the Department is clearly violative of the rules in that regard. The learned Judge has also taken note of various decisions of the Hon’ble Supreme Court as well as this Court and ultimately, held that G.O.(Ms).No.218 Page 8/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024 dated 09.09.2016 is a colorable exercise of power and action by the authorities and is liable to be set aside for clearly being violative of Article 309 of the Constitution of India. Accordingly, the learned Judge by the common order dated 10.11.2023, allowed the writ petition along with W.P.No.35800 of 2019, with a direction to the authorities to refix the seniority and pass suitable orders within a period of 12 weeks.
10.Challenging the aforesaid order passed in W.P. No. 35788 of 2019, these writ appeals have been filed by the aggrieved incumbents and the Government.
11.Mr.G.Sankaran, learned senior counsel for the appellants in W.A.No.3484 of 2023 submitted that the appellants herein were appointed as Junior Assistants in the year 2005 in different Government Medical Colleges in the State of Tamil Nadu as per the Orders of Government in G.O.Ms.No.240, Health and Family Welfare Department dated 23.07.2004 and other connected Government Orders. The appointment of the appellants was initially made on consolidated pay through Employment Exchange following the Rule of Reservation within the sanctioned post as per the Government orders. As there was a ban on regular recruitment through the Tamil Nadu Public Service Commission (TNPSC) vide G.O. Ms. No. 212, P&AR Department dated 29.11.2001, Page 9/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024 the appellants were appointed in order to fill up the non-teaching posts in Government Medical Colleges to meet out the norms framed by the Medical Council of India (MCI) for granting approval of increased intake of students in MBBS course.
11.1. Elaborating further, the learned senior counsel submitted that subsequently, the Government issued G.O.Ms.No.144, Health and Family Welfare Department dated 30.04.2007 according sanction to bring the temporary post in the various categories of non-teaching posts including the post of Junior Assistant on consolidated pay into regular time scale of pay with effect from 01.04.2007. As per G.O.Ms.No.144 dated 30.04.2007, the persons appointed in the non-teaching posts after undergoing process of selection through Employment Exchange following the rule of reservation are absorbed into the post sanctioned in the regular time scale of pay, by disbanding the post already sanctioned on consolidated pay as per the earlier Government orders. Accordingly, the appellants have been brought into regular establishment with regular time scale of pay in the post of Junior Assistant with effect from 01.04.2007. Consequently, appropriate orders have been passed by the Director of Medical Education (DME). Accordingly, orders were passed by the DME to bring the appellants into regular time scale of pay with effect from 01.04.2007 subject to fulfillment of educational qualification, rule of reservation, etc. irrespective of period of service rendered on Page 10/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024 consolidated pay. Consequently, the respective Dean of the Government Medical Colleges issued orders in favour of the appellants bringing them into regular time scale of pay in the sanctioned post with effect from 01.04.2007 in accordance with G.O. Ms. No.144 dated 30.04.2007. Consequent to the appointment of the appellants into regular time scale of pay in the post of Junior Assistant with effect from 01.04.2007, necessary proposals have been forwarded to the Government by the Director of Medical Education for regularization of the services of 166 candidates appointed as Junior Assistant/Steno-typist Grade-III with effect from 01.04.2007. Accepting the request of the DME, the Government forwarded the proposal to the TNPSC to give concurrence for regularizing the services of Junior Assistant appointed in the sanctioned post with regular time scale of pay. Thereafter, the proposal from DME as well as the State Government, calling for concurrence from the TNPSC for appointment made in the post of Junior Assistant through Employment Exchange, was kept pending for a long time. Thereafter, the TNPSC forwarded a Letter dated 12.01.2016 to the Government by referring to the fact that the individuals have been appointed in the post of Junior Assistant after undergoing the process of selection through Employment Exchange following the rule of reservation during the ban period and their appointments were made in the regular time scale of pay in the sanctioned post and therefore, their services have to be regularized by invoking Rule 58 of General Rules of Tamil Nadu State and Subordinate Service Rules. Pursuant to the same, the Page 11/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024 State Government issued G.O. Ms. No.218, Health and Family Welfare Department dated 09.09.2016 in favour of 166 candidates appointed as Junior Assistant/Steno-Typist Grade in Government Medical Colleges to regularize their services in the post of Junior Assistant/Steno-Typist Grade II with effect from 01.04.2007 in relaxation of relevant rules invoking powers conferred under Rule 58 of the Tamil Nadu State and Subordinate Service Rules. Accordingly, the appellants have been regularized in the post of Junior Assistant with effect from 01.04.2007 and the seniority was also fixed according to the rule of reservation. Subsequently, orders have been issued by the Director of Medical and Rural Health Services fixing their seniority in the post of Junior Assistant vide Proceedings dated 26.12.2017. Thereafter, based on the fixation of seniority in the post of Junior Assistant, the Director of Medical Services issued orders dated 26.12.2017 for inclusion of the names of the appellants in the appropriate panel for promotion to the post of Assistant based on seniority on par with juniors and accordingly, the names of the appellants were directed to be included in the panel year 2011-2012.
11.2. Adding further, the learned senior counsel submitted that the appellants have been included in the panel of the year 2011-2012 for promotion to the post of Assistant in the appropriate places on par with juniors respectively. Consequently, the DMS has conducted counseling in the post of Assistant for the Page 12/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024 candidates appointed during the year 2007 and presently included the panel and the counselling was conducted on 28.12.2017. The appellants have also appeared in the counselling and have been issued with promotion orders to the post of Assistant based on 2011-2012 panel, however, it was directed that they are entitled to fixation of pay in the post of Assistant on par with juniors and by granting monetary benefits from the date of Government orders. Though the appellants have been appointed in the regular time scale of pay with effect from 01.04.2007, the order of regularization could not be passed immediately, in view of the fact that the proposal seeking TNPSC concurrence was kept pending for long time. Further, they could not be sent for Bhavani Sagar Training due to administrative reasons. In such circumstances, the appellants have not been included in the panel for promotion to the post of Assistant in accordance with seniority from the date of regular appointment with effect from 01.04.2007. Subsequently, based on the order of regularization issued in G.O.Ms.No.218 dated 09.09.2016, the services of the appellants were regularized with effect from 01.04.2007 with seniority. Consequently, based on the completion of in-service training, they were issued with declaration of probation with effect from 31.03.2009, on completion of two years satisfactory service from the date of initial appointment with regular time scale of pay. While so, the names of the appellants have been included in the 2011-12 panel for promotion to the post of Assistant on par with juniors and consequently they have been promoted as Assistants with Page 13/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024 retrospective effect on par with juniors, but they have been given monetary benefits only from the date of promotion. When the things stood thus, the respondents 1 to 20 / Writ Petitioners therein, who are the direct recruits to the post of Assistant through TNPSC and appointed in the years 2012 and 2013 (who are not even borne into the cadre of Assistant as on date of promotion of the appellants as Assistants based on 2011-12 panel) filed Writ Petition bearing No.35788 of 2019 challenging G.O.Ms.No.218 dated 09.09.2016 and subsequent proceedings issued by the Director of Medical and Rural Health Services dated 26.12.2017. However, the learned Judge erred in allowing the Writ Petition on the premise that there is no justification to the State Government to issue G.O. Ms. No.218 dated 09.09.2016 giving retrospective effect to the candidates appointed as Junior Assistant/Steno-Typist Grade III and the respondents are not justified giving promotion by referring to Rule 35(aa) of Tamil Nadu State and Subordinate Service Rules. It is also submitted that the learned Judge misconceived Rule 35 (aa) as an exception to General Rules on the ground that it is only an enabling provision to fill up the vacancies by promoting the candidates from lower post to meet emergent situation. Whereas, Rule 35 (aa) relates to fixation of seniority when the post is filled up by more than one method of recruitment and the seniority would be determined with reference to the date of joining the post.
11.3. It is further submitted that it is a settled legal position that the government as the employer has the power to regularize the service of its Page 14/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024 employees with retrospective operation from the date of their original appointment. The appellants herein have been appointed in the regular sanctioned post in the year 2005 and brought into regular time scale of pay from 01.04.2007 and the Government has rightly considered the case of the appellants and regularized their service only from 01.04.2007, the date on which they were brought into regular time scale of pay and not from the date of their initial appointment and in this case, regularization by invoking Rule 58 of the General Rules of Tamil Nadu State and Subordinate Service Rules, cannot be questioned by the private respondents, because power for relaxation is exclusively under the domain of the State. It is also a settled legal position that any administrative delay on the part of the employer cannot be put against the employees. The appellants herein have been appointed during the ban period in a regular sanctioned post through employment exchange by following the rule of reservation and the Government thought it fit to regularize the service of the appellants from the date on which they were brought into regular time scale of pay from 01.04.2007 and sent necessary proposal to the TNPSC for getting concurrence and there was delay on the part of the Government to approve the proposal immediately and that cannot be put against the appellants.
11.4. In support of his contentions, the learned senior counsel placed reliance on the following judgments:
(i)Direct Recruit Class II Engineering Officers Association Vs. State Page 15/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024 of Maharashtra and ors. [(1990) 2 SCC 715];
(ii)State of Tamil Nadu and another Vs. E.Paripoornam and Ors. [1992 Supp (1) SCC 420];
(iii) A.Balakrishnan and anr vs. Government of Tamil Nadu and another [1995 Supp (4) SCC 108];
(iv) G.P.Doval and ors vs. Chief Secretary [(1984) 4 SCC 329];
(v) G.S.Venka Reddy and Others vs. Government of A.P. and others [1993 Supp (3) SCC 425];
(vi) I.K.Sukhija and Ors vs. Union of India and Ors. [(1997) 6 SCC 406];
(vii) L.Chandrakishore Singh vs. State of Manipur and Ors [(1999) 8 SCC 287];
(viii) K.Meghachandra Singh and Ors vs. Ningam Siro and Ors [(2020) 5 SCC 689];
(ix) State Bank of India and Ors vs. Kashinath Kher and Others [(1996) 8 SCC 762];
(x) A.Badhrachalam vs. The Principal Secretary and Others [(2012) 4 Mad LJ 535];
(xi) S.Sasisivanandam vs. The District Collector and Ors [(2012) 1 Mad LJ 634] ; and
(xii) The District Collector and Ors vs. S.Sasisivanandam [2014 SCC OnLine Mad 9499] Page 16/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024 With these submissions and case laws, the learned senior counsel prayed to allow the writ appeal by setting aside the order impugned herein.
12.Mrs.Sneha, learned Special Counsel appearing for the appellants in WA No. 1110 of 2024, made her submissions in the same lines as made by the learned senior counsel for the appellants in WA No. 3484 of 2023 and prayed to set aside the order impugned herein.
13.Mr.V. Prakash, learned senior counsel appearing for the respondents 1 to 20 in W.A.Nos.3484 of 2023 and 1110 of 2024 submitted that they were directly recruited Assistants in the Directorate of Medical and Rural Health Services, Medical Department and were appointed in the year 2012 against the substantive vacancies that arose during the year 2009-2011, duly notified by the Tamil Nadu Public Service Commission (TNPSC) on 31.12.2010. They have completed their probation satisfactorily. It is further submitted that aggrieved by G.O.Ms.No.218, dated 09.09.2016 and the consequential proceedings of the Director of Medical and Rural Health Services bearing Ref.No.78102/E2/1/2017 dated 26.12.2017, the private respondents preferred W.P.No.35788 of 2019, which was rightly allowed by the learned Judge, by the order impugned herein.
13.1. According to the learned senior counsel, the order impugned in the Page 17/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024 writ appeals, cannot stand the scrutiny of law for the following reasons:
(i) The post of Assistant has been brought under the purview of the Tamil Nadu Public Service Commission and also a selection post. Therefore, as mandated under Regulation No. 16 of the Tamil Nadu Public Service Commission, the prior approval of the Tamil Nadu Public Service Commission ought to have been obtained before such regularization of ad hoc appointment by promotion, which did not happen. Further, Rule 4(a) of the Tamil Nadu State and Subordinate Service Rules (Now Section 7 of Act XIV of 2016) has not been relaxed and the relaxation to the recruitment rules to the available sanctioned posts has not been obtained through the Government. In other words, the Government alone is competent to relax the rules for the purpose of regularizing such ad hoc appointees and the Director of Medical and Rural Health Services is not competent to do so. In the instant case, the Director of Medical and Rural Health Services issued the order of regularization without jurisdiction. On this ground alone, the impugned order of regularization will not have any merit. The impugned proceedings viz., Ref.No.78102/E2/1/2017 dated 26.12.2017 was issued retrospectively, when the Direct Recruit Assistants were very much available in service and to their detriment, placing such ad hoc appointees above the Direct Recruits, namely, in the year 2011 and 2012, is in violation of the settled principles and also violation of the proviso to Rule 23(a)(i) of the Tamil Nadu State and Subordinate Service Rules.Page 18/39
https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024
(ii)Rule 13 and Rule 13(a) of the Tamil Nadu Ministerial Service Rules provides for annual preparation of merit list for selection to the post of Assistant from the combined seniority list prepared for Junior Assistant/Typist/Steno-Typist Grade III in accordance with Rule 5(b) of the Tamil Nadu Ministerial Service Rules. In that, against the 20% of the Junior Assistant vacancies, candidates working as Record Clerk/Office Assistant/Driver ought to have been considered.
(iii) Rule 14 provides that the crucial date on which the candidates should possess the prescribed qualification for inclusion in the annual list of accrued candidates for appointment to the post by promotion and recruitment by transfer, shall be 15th of March, every year.
13.2. The learned senior counsel further submitted that by G.O.(Ms).No.218, dated 09.09.2016 and the consequential proceedings, dated 6.12.2017, which were impugned in the writ petition, the ad hoc appointees appointed to meet the MCI Norms belonging to Junior Assistants/Typists/Steno- typists Grade III were placed above the direct recruit Assistants. Therefore, need arose to challenge the said order / proceedings before the writ court.
13.3. With regard to the candidates appointed through the Special Competitive Examination, it is submitted by the learned senior counsel that no Page 19/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024 writ appeal has been filed by this category of persons and they were appointed during the ban period without undergoing any selection procedure, namely in the years from 2001 to 2006. To bring them into regular service, an examination was conducted by the Tamil Nadu Public Service Commission in 2008 and subsequently, they were appointed as Junior Assistant in 2009. However, their appointment was ad hoc in nature as they never commenced probation in their service. Junior Assistant posts or any other Group IV posts must be recruited directly through the Tamil Nadu Public Service Commission and they have to commence their probation in accordance with Rule 32 of the Tamil Nadu Ministerial Service Rules and they shall be on probation for 2 years period of duty within a continuous period of 3 years. Such probation can be commenced only after their being appointed in accordance with rules. There was no combined inter se seniority list prepared in accordance with Rule 36(b)(1) of the Tamil Nadu State and Subordinate Services Rules and the appointment by promotion of Junior Assistants, Typists and Steno-typists to the Assistants was de hors the rules.
13.4. To substantiate his contentions, the learned senior counsel referred to the following decisions:
(i) Orders pronounced by the Hon’ble Supreme Court in Appeal (Civil) Nos.6575-6580 of 1994 in V.Sreenivasa Reddy and Ors. vs. Government of A.P. Page 20/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024 and Ors.
(ii) Orders pronounced by the Hon’ble Supreme Court in Civil Appeal Nos.2791-2793 of 2002 in K.Madalaimuthu and another vs. State of Tamil Nadu and ors.
(iii) Orders pronounced by the Hon’ble Supreme Court in Civil Appeal Nos.3582-84 of 2009 in the case of M.P.Palanisamy and Others vs. A.Krishnan and Others.
(iv) Orders pronounced by this Court in W.A.Nos.1704 of 2010 and 304 and 305 of 2011 in S.P.Pethel Raj vs. V.Vairappan.
(v) Orders pronounced by the Hon’ble Supreme Court in Civil Appeal Nos.8514-8515 of 2012 in Bhupendra Nath Hazarika and another vs. State of Assam and Others.
(vi) Orders pronounced by the Hon’ble Supreme Court in Civil Appeal No.10788 of 2016 in Rashi Mani Mishra and others vs. State of Uttar Pradesh.
(vii)Orders pronounced by the Hon’ble Supreme Court in Civil Appeal Nos.6026- 6028 of 2021 in Malook Singh and Others vs. State of Punjab and Others.
(viii) Orders pronounced by this Court in W.P.No.23342 of 2019 in N.Mahalingam and Others vs. State of Tamil Nadu and Others.
14.Heard all the parties and perused the records.
Page 21/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024
15.It is not in dispute that the private appellants have all been appointed on ad hoc basis as Junior Assistants as early as in 2005 as per G.O.Ms.No.240 dated 23.07.2004 through employment exchange following the rule of reservation. They were appointed on consolidated pay and later, they were absorbed into regular time scale of pay w.e.f. 01.04.2007. It is therefore beyond any shadow of doubt that these appellants did not undergo the normal process of selection by the TNPSC examination and their appointment was not made on the basis of their ranking on merit. Only by virtue of G.O.Ms.No.144 dated 30.04.2007 these persons were absorbed in the post sanctioned in the regular time scale of pay by disbanding the post already sanctioned on consolidated pay as per the earlier orders of the Government. As a consequence of the proposals sent by the Director of Medical Education, and other correspondences in this regard, the order impugned in the writ petition viz., G.O.Ms.No.218 Health and Family Welfare Department dated 09.09.2016 came to be pased regularizing the services of the ad hoc appointees in the post of Junior Assistant /Steno Typist Grade II w.e.f. 01.04.2007, relaxing the relevant rules by invoking the powers conferred under Rule 48 of the Tamilnadu State and Subordinate Service Rules. On the basis of such regularization and consequential fixation of seniority in the post of Page 22/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024 Junior Assistant, the respondent authorities issued the proceedings dated 26.12.2017 for inclusion of the names of the appellants in the appropriate panel for promotion and accordingly, their names have been included in the panel for promotion to the post of Assistant in the panel year 2011-12.
16.It is a trite principle of law that equality of opportunity of public employment is a cherished fundamental right and such a right cannot be taken away easily nor be diluted by restricting the channel of appointment through employment exchange alone. In the present case, the appointments of the private appellants, though through employment exchange following the rule of reservation, do not bear the seal of validity which is afforded to employment/recruitment made through open competition. Though the power to relax the rules and make regularization of appointments is given to the Government under the statutory rules, the same cannot be done in a manner so as to give effect to the regularization retrospectively. However, as the matter in consideration does not involve the question of validity of appointments of the private appellants, observations regarding the same are not being made here. Having said that the very entry into service of these appellants is not regular seen from both angles viz., (i) appointments being ad hoc not made through open competition (restricted to employment exchange); and (ii) not made following the usual method of selection i.e., through assessment of merit by writing TNPSC Page 23/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024 examinations, there is no question of granting of retrospective regularization. Therefore, without going into the question of whether the regularization is valid or otherwise, it can be said that retrospective regularization would cascade into grant of seniority from retrospective date, which is not permissible in law.
17.It is also a settled legal principle that no person can claim seniority from a date on which he is not borne on the cadre. However, no reason can be stated by the Government as to why they could not regularize the services of the private appellants earlier. When such is the case, while it is undoubtedly the prerogative of the government to exercise its power and grant regularization, the same cannot be done in a manner so as to unsettle the seniority of the other employees who have been appointed in a regular manner.
18.The observations in Secretary, State of Karnataka and others vs Umadevi and others [2006 (4) SCC 1] which are of relevance, are extracted hereunder, for better appreciation:
"2. Public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitution and the laws made thereunder. Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of opportunity is the hallmark, and the Constitution has provided also for affirmative action to ensure that unequals are not treated equals. Thus, any public employment has to be in terms of the constitutional scheme.Page 24/39
https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024 *** *** ***
13.What is sought to be pitted against this approach, is the so called equity arising out of giving of temporary employment or engagement on daily wages and the continuance of such persons in the engaged work for a certain length of time. Such considerations can have only a limited role to play, when every qualified citizen has a right to apply for appointment, the adoption of the concept of rule of law and the scheme of the Constitution for appointment to posts. It cannot also be forgotten that it is not the role of courts to ignore, encourage or approve appointments made or engagements given outside the constitutional scheme. In effect, orders based on such sentiments or approach would result in perpetuating illegalities and in the jettisoning of the scheme of public employment adopted by us while adopting the Constitution. The approving of such acts also results in depriving many of their opportunity to compete for public employment. We have, therefore, to consider the question objectively and based on the constitutional and statutory provisions. In this context, we have also to bear in mind the exposition of law by a Constitution Bench in State of Punjab Vs. Jagdip Singh & Ors. [(1964 (4) SCR 964)]. It was held therein, "In our opinion, where a Government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give, he will not in law be deemed to have been validly appointed to the post or given the particular status."
*** *** ***
17.We have already indicated the constitutional scheme of public employment in this country, and the executive, or for that matter the Court, in appropriate cases, would have only the right to regularize an appointment made after following the due procedure, even though a non-fundamental element of that process or procedure has not been followed. This right of the executive and that of the court, would not extend to the executive or the court being in a position to direct that an appointment made in clear violation of the constitutional scheme, and the statutory rules made in that behalf, can be treated as permanent or can be directed to be treated as permanent.
*** *** *** Page 25/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024
38. In Union Public Service Commission Vs. Girish Jayanti Lal Vaghela & Others [2006 (2) SCALE 115], this Court answered the question, who was a Government servant and stated:-
"Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words "employment" or "appointment" cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation etc. The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution (See B.S. Minhas Vs. Indian Statistical Institute and others AIR 1984 SC 363)."
39.There have been decisions which have taken the cue from the Dharwad (supra) case and given directions for regularization, absorption or making permanent, employees engaged or appointed without following the due process or the rules for appointment. The philosophy behind this approach is Page 26/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024 seen set out in the recent decision in The Workmen of Bhurkunda Colliery of M/s Central Coalfields Ltd. Vs. The Management of Bhurkunda Colliery of M/s Central Coalfields Ltd. [JT 2006 (2) SC 1], though the legality or validity of such an approach has not been independently examined. But on a survey of authorities, the predominant view is seen to be that such appointments did not confer any right on the appointees and that the Court cannot direct their absorption or regularization or re-engagement or making them permanent.
40.At this stage, it is relevant to notice two aspects. In Kesavananda Bharati Vs. State of Kerala [1973 Supp. S.C.R. 1], this Court held that Article 14, and Article 16, which was described as a facet of Article 14, is part of the basic structure of the Constitution of India. The position emerging from Kesavananada Bharati (supra) was summed up by Jagannatha Rao, J., speaking for a Bench of three Judges in Indira Sawhney Vs. Union of India [1999 Suppl. (5) S.C.R. 229]. That decision also reiterated how neither the Parliament nor the Legislature could transgress the basic feature of the Constitution, namely, the principle of equality enshrined in Article 14 of which Article 16 (1) is a facet. This Court stated, "The preamble to the Constitution of India emphasises the principle of equality as basic to our constitution. In Keshavananda Bharati v. State of Kerala [(1973) 4 SCC 225], it was ruled that even constitutional amendments which offended the basic structure of the Constitution would be ultra vires the basic structure. Sikri, CJ. laid stress on the basic features enumerated in the preamble to the Constitution and said that there were other basic features too which could be gathered from the Constitutional scheme (para 506-A of SCC). Equality was one of the basic features referred to in the Preamble to our Constitution. Shelat and Grover, JJ. also referred to the basic rights referred to in the Preamble. They specifically referred to equality (paras 520 and 535A of SCC). Hegde & Shelat, JJ. also referred to the Preamble (paras 648, 652). Ray, J. (as he then was) also did so (para 886). Jaganmohan Reddy, J. too referred to the Preamble and the equality doctrine (para 1159). Khanna, J. accepted this position (para 1471). Mathew, J. referred to equality as a basic feature(para 1621). Dwivedi, J. (paras 1882, 1883) and Chandrachud, J.(as he then was) Page 27/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024 (see para 2086) accepted this position.
65.What we mean to say is that Parliament and the legislatures in this Country cannot transgress the basic feature of the Constitution, namely, the principle of equality enshrined in Article 14 of which Article 16(1) is a facet."
41. In the earlier decision in Indra Sawhney Vs. Union of India [1992 Supp. (2) S.C.R. 454], B.P. Jeevan Reddy, J. speaking for the majority, while acknowledging that equality and equal opportunity is a basic feature of our Constitution, has explained the exultant position of Articles 14 and 16 of the Constitution of India in the scheme of things. His Lordship stated:-
"644 (6). The significance attached by the founding fathers to the right to equality is evident not only from the fact that they employed both the expressions 'equality before the law' and 'equal protection of the laws' in Article 14 but proceeded further to state the same rule in positive and affirmative terms in Articles 15 to 18….
645(7). Inasmuch as public employment always gave a certain status and power --- it has always been the repository of State power
---besides the means of livelihood, special care was taken to declare equality of opportunity in the matter of public employment by Article
16. Clause (1), expressly declares that in the matter of public employment or appointment to any office under the state, citizens of this country shall have equal opportunity while clause (2) declares that no citizen shall be discriminated in the said matter on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. At the same time, care was taken to, declare in clause (4) that nothing in the said Article shall prevent the state from making any provision for reservation of appointments or posts in favour of any backward class of citizen which in the opinion of the state, is not adequately represented in the services under the state.."
These binding decisions are clear imperatives that adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment." Page 28/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024
19.The decision in Suraj Parkash Gupta and Ors. vs. State of J and Ors. (28.04.2000 - SC) : MANU/SC/0337/2000 wherein, it was held as under, is also relevant to the facts of the present case:
“Recent trend of cases: Recruitment rules cannot be relaxed:
30. The decisions of this Court have recently been requiring strict conformity with the recruitment rules for both direct recruits and promotees. The view is that there can be no relaxation of the basic or fundamental rules of recruitment.
In Keshav Chandra Joshi v. Union of India MANU/SC/0061/1991 :
AIR1991SC284 the Rule permitted relaxation of conditions of service and it was held by the three Judge Bench that the rule did not permit relaxation of recruitment rules. The words 'may consult the PSC' were, it was observed, to be read as 'shall consult PSC' and the rule was treated mandatory. In Syed Khalid Rizvi v. Union of India MANU/SC/0682/1992 : (1993)ILLJ887SC , decided by a three Judge Bench, a similar strict principle was laid down. The relevant Rule - Rule 3 of the Residuary Rules (see p. 603) (para 33) in that case did permit relaxation of "rules" Even so, this Court refused to imply relaxation of recruitment rule and observed:
the condition precedent, therefore, is that there should be appointment to the service in accordance with rules and by operation of the rule, undue hardship has been caused,.... It is already held that conditions of recruitment and conditions of service are distinct and the latter is preceded by an appointment according to Rules. The former cannot be relaxed
31. Similarly, in State of Orissa v. Sukanti Mohapatra MANU/SC/0268/1993 : (1993)IILLJ297SC , it was held that though the power of relaxation stated in the rule was in regard to 'any of the provisions of the rules', this did not permit relaxation of the rule of direct recruitment without consulting the Commission and the entire ad hoc service of direct recruit could not be treated as regular service. Similarly, in Dr. M.A.Haque v. Union of India Page 29/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024 MANU/SC/0476/1993: (1993) I LLJ 1139 SC it was held that for direct recruitment, the rules relating to recruitment through the Public Service Commission could not be relaxed. In Jammu and Kashmir Public Service Commission v. Dr. Narinder Mohan. MANU/SC/0426/1994 : (1994) I LLJ 780 SC it was held that the provisions of the J & K Medical Recruitment Rules could not be relaxed for direct recruitment. Backdoor direct recruitments, could not be permitted. See also Dr. Arundhati Ajit Pargaonkar v. State of Maharashtra 1994 Suppl. MANU/SC/0184/1995 : (1995)ILLJ927SC In Dr. Surinder Singh Jamwal and Anr. v. State of J &K MANU/SC/0710/1996 : (1996) II LLJ 795 SC, this Court directed the direct recruits to go before the Public Service Commission.
Decisions cited for promotees distinguishable:
32. Two decisions which have been referred to by counsel for promotees have to be referred to but these can be distinguished. In V. Sreenivasa Reddy v.
Govt. of A.P. MANU/SC/0123/1995 : AIR1995SC586 there was an order of relaxation in favour of the promotees who were not regularised under Rule 23 of the A.P. State and Substantive Service Rules. In that case this Court felt that the Government's order relaxing the requirement of consultation with the Commission need not be interfered with because the promotees were placed by the Government below the direct recruits. This case is therefore clearly distinguishable. (We shall be referring to this case again under Point 3). Again in Ashok Kumar Uppal v. State of J & K MANU/SC/0193/1998 : [1998]1SCR164 While holding that the power of relaxation could not be arbitrarily exercised, this Court upheld the relaxation of the relevant standard prescribed for typing, in respect of five direct recruits. This was because the State Recruitment Board in that case had made a recommendation for relaxation of the requisite standard in their favour and this was accepted by the Govt. The relaxation was upheld because Government had retrospectively amended the promotion rules so that promotees could just go into promotion quota by sheer seniority rather than by selection as was the rule earlier. The five direct recruits were very close to the other selected direct recruits and were more meritorious than the promotees. Summary:
33. The result of the discussion, therefore, is that the wholesale Page 30/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024 regularisation by order dated 2.1.1998 (for the Electrical Wing), by way of implied relaxation of the recruitment rule to the gazetted category is invalid. It is also bad as it has been done without following the quota rule and without consulting the Service Commission. Further, power under Rule 5 of the J & K CCA Rules, 1956 to relax rules cannot, in our opinion, be treated as wide enough to include a power to relax rules of recruitment.”
20.Next, the relevant passage of the judgment in K.Madalaimuthu and Ors. vs. State of Tamilnadu and Ors. [(2006) 6 SCC 558]] is as follows:
“13.Negating the submissions made on behalf f the appellants herein that since the initial temporary appointments of the promotees had not been made according to the rules, their seniority could not be reckoned from the date of their initial appointment under Rule 10 (a) (i) (1) of the aforesaid rules and placing reliance on Rule 4 (a) of the aforesaid rules, the High Court distinguished the various decisions cited on behalf of the appellants herein to bolster their case that appointment in accordance with the rules is a condition precedent in counting seniority. The High Court held that the appointment of the promotees had been made in accordance with the Rules and in particular Explanation II to Rule 4 and that having regard to the above, the said decisions would have no application to the facts of the case. On the contrary, the High Court was of the view that the appointments of the promotees, though temporary and ad hoc, were not by way of any stop-gap arrangement and the decision of this Court in the case of I.K. Sukjhija & Ors. vs. Union of India reported in 1977 (6) SCC 406 was relied upon in support of the view that when promotions are made on ad hoc basis against clear vacancies, the seniority will be counted from the date of the initial appointment and not from the date of confirmation.
14.On the basis of its aforesaid reasoning, the High Court chose not to interfere with the common order passed by the Tribunal and dismissed the writ applications filed by the appellants herein.”
21.That apart, the relevant portion of the judgment in K.Meghachandra Page 31/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024 Singh and Ors. Vs. Ningam Siro and Ors. [2020 (5) SCC 689] is as follows:
“28. Before proceeding to deal with the contention of the appellants’ Counsel vis-à-vis the judgment in N.R. Parmar (Supra), it is necessary to observe that the Law is fairly well settled in a series of cases, that a person is disentitled to claim seniority from a date he was not borne in service. For example, in J.C. Patnaik (Supra) the Court considered the question whether the year in which the vacancy accrues can have any bearing for the purpose of determining the seniority irrespective of the fact when the person is actually recruited. The Court observed that there could be time lag between the year when the vacancy accrues and the year when the final recruitment is made. Referring to the word “recruited” occurring in the Orissa Service of Engineers Rules, 1941 the Supreme Court held in J.C. Patnaik (Supra) that person cannot be said to have been recruited to the service only on the basis of initiation of process of recruitment but he is borne in the post only when, formal appointment order is issued.
29. The above ratio in J.C. Patnaik (Supra) is followed by this Court in several subsequent cases. It would however be appropriate to make specific reference considering the seniority dispute in reference to the Arunachal Pradesh Rules which are pari materia to the MPS Rules, 1965, (vide (2007) 15 SCC 406 -
Nani Sha & Ors. Vs. State of Arunachal Pradesh & Ors.). Having regard to the similar provisions, the Court approved the view that seniority is to be reckoned not from the date when vacancy arose but from the date on which the appointment is made to the post. The Court particularly held that retrospective seniority should not be granted from a day when an employee is not even borne in the cadre so as to adversely impact those who were validly appointed in the meantime.
30.We may also benefit by referring to the Judgment in State of Uttar Pradesh and others vs. Ashok Kumar Srivastava and Anr. This judgment is significant since this is rendered after the N.R. Parmar (Supra) decision. Here the Court approved the ratio in Pawan Pratap Singh and Ors. Vs. Reevan Singh & Ors.3, and concurred with the view that seniority should not be reckoned retrospectively unless it is so expressly provided by the relevant service Rules. Page 32/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024 The Supreme Court held that seniority cannot be given for an employee who is yet to be borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime. The law so declared in Ashok Kumar Srivastava (supra) being the one appealing to us, is profitably extracted as follows:-
24. The learned Senior Counsel for the appellants has drawn inspiration from the recent authority in Pawan Pratap Singh v. Reevan Singh where the Court after referring to earlier authorities in the field has culled out certain principles out of which the following being the relevant are produced below:
“45. (ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.
.....................
45. (iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.”
22.In the light of the aforesaid authoritative pronouncements of the Supreme Court, this court is of the view that the learned Judge has delved in detail on the facts of these appeals and assigned his reasoning and returned findings in extenso. It would not be inappropriate to say that though the order is Page 33/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024 in respect of both categories of employees, the entire order is focussed on the facts and law applicable in respect of the private appellants herein. The observation made by the Learned Judge that merely on the basis of being in service as Junior Assistant or Steno Typist Grade III, without undergoing of regular written examination, they have been found eligible to the promotional post of Assistant and as the entire process of recruitment is a backdoor entry, the order impugned in the writ petition which grants seniority to the appellants over and above the writ petitioners and other employees, is liable to be struck down, is legally free from any infirmity as the same cannot be found fault with. When their regularization itself in the feeder category of Junior Assistant/Steno Typist Grade III was done for the first time in the year 2016, granting them promotion from the year 2011-12 and consequential seniority over and above the regularly appointed persons in the post of Assistant cannot be sustained in law. This is because in the year 2011-12 these appellants were not even borne on the cadre in the post of Junior Assistant, which is the feeder category for the promotional post of Assistant. This definitely amounts to interfering with the rights relating to the seniority of the other government employees and is against the settled canons of the service jurisprudence. This is also a fit case where the government’s practice of resorting to temporary and ad hoc appointments is to be deprecated as the same results in unnecessary litigation as well as interfering with the right to equality as well as equal opportunity in public employment guaranteed in Articles Page 34/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024 14 and 16 of Constitution, which rights are the cornerstone of our Constitution.
We are, therefore, not inclined to interfere with the order passed by the learned Judge in W. P. No. 35788 of 2019.
23.With respect to the issue in respect of the right of the petitioners in CMP. Nos. 2264, 2708, 2952, 4518, 6949, 1126, 1344, 1350, 2027 & 4628 of 2024 to be impleaded as respondents in the present appeals, the same has to be tested from the standpoint of how they are aggrieved by the order impugned in the writ petition as well as the reasons for their non-impleadment earlier. It is seen that all the impleading petitioners are direct recruits in the post of Assistants who are similarly placed as the writ petitioners. They did not choose to challenge the proceedings impugned in the writ petition, i.e. the proceedings by which the appellants herein were regularised as Junior Assistants. All the impleading petitioners were well-aware of these proceedings. Only after the appeals were filed and an order of interim stay was granted during the pendency of these appeals, the impleading petitioners have filed these miscellaneous petitions to implead themselves as respondents in the appeals. A perusal of the affidavits filed in support of the impleadment petitions would make it clear that the reasons for their non-impleadment earlier, or for not filing writ petitions earlier, are conspicuously absent. As such, they do not have any semblance of right to be impleaded at this stage when they never chose to challenge the order impugned in the writ petition.
Page 35/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024 23.1. In this regard, the judgments relied on by the appellants while opposing these applications are as follows:
(i) P.S.Sadasivaswamy Vs. State of Tamilnadu [AIR 1974 SC 2271];
(ii) Vijay Kumar Kaul and Ors. Vs. Union of India and Ors. [AIR 2012 SC 2274];
(iii) State of Uttaranchal and ors. Vs. Shiv Charan Singh Bhandari and Ors. [2013 (12) SCC 179];
(iv) Londhe Prakash Bhagwan Vs. Dattatraya Eknath Mane and Ors. [2013 (10) SCC 627]; and
(v) State of Uttar Pradesh Vs. Arvind Kumar Srivastava [2015 (1) SCC 347].
23.2. Suffice it to state, the law on this point has been settled by the judgment of the Supreme Court in Arvind Kumar Srivastava’s case and the same is extracted hereunder for better appreciation:
“Viewed from this angle, in the present case, we find that the selection process took place in the year 1986. Appointment orders were issued in the year 1987, but were also cancelled vide orders dated June 22, 1987. The respondents before us did not challenge these cancellation orders till the year 1996, i.e. for a period of 9 years. It means that they had accepted the cancellation of their appointments. They woke up in the year 1996 only after finding that some other persons whose appointment orders were also cancelled got the relief. By that time, nine years had passed. The earlier judgment had granted the relief to the Page 36/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024 parties before the Court. It would also be pertinent to highlight that these respondents have not joined the service nor working like the employees who succeeded in earlier case before the Tribunal. As of today, 27 years have passed after the issuance of cancellation orders. Therefore, not only there was unexplained delay and laches in filing the claim petition after period of 9 years, it would be totally unjust to direct the appointment to give them the appointment as of today, i.e. after a period of 27 years when most of these respondents would be almost 50 years of age or above.” 23.3. Applying the ratio of the above judgment, this Court is of the view that allowing these impleading petitions would amount to allowing fence-sitters to become part of the proceedings at an advanced stage, which is neither legally tenable nor factually desirable.
24. In the result,
(i)Both the writ appeals are dismissed. As a sequel, the official respondents are directed to rework the seniority of the private respondents / directly recruited Assistants vis-a-vis the appellants herein accordingly.
(ii)The impleading petitions in C.M.P.Nos. 2264, 2708, 2952, 4518, 6949, 1126, 1344, 1350, 2027 & 4628 of 2024 are also dismissed.
(iii)However, there is no order as to costs. Other CMP is closed.
[R.M.D.,A.C.J.] [M.S.Q., J.]
27.06.2024
Index : Yes / No
Page 37/39
https://www.mhc.tn.gov.in/judis
Writ Appeal Nos.3484 of 2023 & 1110 of 2024
Internet : Yes / No
rk
To
1. The Health Secretary,
State of Tamilnadu,
Fort St.George, Secretariat,
Chennai - 60 009.
2. The Secretary to Government,
Personal and Administrative Reforms Department,
Government of Tamilnadu,
Secretariat, Chennai - 600 009.
3.The Secretary,
Tamilnadu Public Service Commission,
TNPSC Road, VOC Nagar,
Park Town, Chennai - 600 003.
4. The Director of Medical and Rural Health Services, Medical Department, DMS Campus, Teynampet, Chennai - 6.
Page 38/39 https://www.mhc.tn.gov.in/judis Writ Appeal Nos.3484 of 2023 & 1110 of 2024 R. MAHADEVAN, ACJ and MOHAMMED SHAFFIQ, J rk Writ Appeal Nos.3484 of 2023 & 1110 of 2024 and C.M.P.Nos.26980, 27366, 28425 of 2023, 2264, 2708, 2952, 4518, 6949, 1126, 1344, 1350, 2027 & 4628 of 2024 and C.M.P. No.7972 of 2024 27.06.2024 Page 39/39 https://www.mhc.tn.gov.in/judis