Madras High Court
P.Sathyakeerthi ? vs The Director Of Fire Services on 23 December, 2016
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.12.2016
Reserved on : 25.11.2016
Pronounced on : 23.12.2016
CORAM
THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN
Writ Petition(MD) Nos.16819 of 2012 to 16823 of 2012 and
Writ Petition (MD)No.10950 of 2009 and
Writ Petition(MD)Nos.127 and 128 of 2015 and
M.P.(MD)Nos.2,2,2,2 and 2 of 2013 and
M.P.(MD)Nos.3,3,3,3, and 3 of 2013 and
MP(MD)Nos.4/2013, 2/2014, 1,2,2 and 2 of 2014
WP(MD)No.16819 of 2012
P.Sathyakeerthi ? Petitioner
-Vs-
1.The Director of Fire Services,
Directorate of Fire Services and Rescue Department,
Egmore, Chennai-8.
2.The Secretary,
Tamil Nadu Public Service Commission,
Chennai.
3.R.M.Abdul Bari
Assistant Divisional Fire Officer,
Fire and Rescue Services,
Athipattu, Chennai Sub-Urban Division,
Chennai.
4.K.Kumar
5.S.Kalyanakumar
6.P.Krishnamoorthy
(R4 to R6 impleaded as per order
dated 25.07.2013 in MP(MD)No.3/2013)
7.T.Venkataraman
Assistant Divisional Officer,
Fire and Rescue Services Department,
Date Base Holder,
O/o.Joint Director of Fire and Rescue Services Department,
Northern Region, Chennai-6.
8.Chandrakumar,
Assistant Divisional Officer,
Fire and Rescue Services Department, Dindigul.
9.Mukundam,
Assistant Divisional Officer,
Fire and Rescue Services Department, Dindigul.
10.Manikandan
Assistant Divisional Officer,
Fire and Rescue Services Department, Virudhunagar.
11.Hukim Basha,
Assistant Divisional Officer,
Fire and Rescue Services Department, Ramanathapuram.
12.S.Saravanan,
Assistant Divisional Officer,
Fire and Rescue Services Department, Cuddalore.
13.Murugesan,
Assistant Divisional Officer,
Fire and Rescue Services Department, Salem.
14.Logidass,
Assistant Divisional Officer,
Fire and Rescue Services Department, Tuticorin.
(R7 to R14 impleaded vide order dated 6.3.2014
in MP(MD)No.1/2014 in WP(MD)No.16819 of 2012)
15.The Government of Tamil Nadu,
Rep. by its Secretary,
Personnel and Administrative Reforms Department,
Secretariat, Chennai-9. ... Respondents
(R15 impleaded vide order dated 16.02.2016
in WMP(MD)No.2918/2016)
Prayer: Writ Petition is filed under Article 226 of the Constitution of
India, praying for the issuance of a Writ of Certiorarified Mandamus, calling
for the records relating to the impugned selection list published in the
second respondent's bulletin No.5 dated 01.03.2001 and letter dated
20.08.1998 in D.No.44129/S/98 of the proposed respondent and impugned
provisional seniority list in RC.No.22021/B1/2012 dated 04.12.2012 and final
seniority list in RC.No.22021/B1/2012 dated 18.01.2013 of the first
respondent, quash the same is illegal and consequently direct the respondents
1 to 3 herein to prepare a seniority list based on marks/ranks obtained by
the petitioner.
(Prayer amended vide order dated 16.02.2016
in WMP(MD)No.2917 of 2016)
!For Petitioner : Mr. J.Anandkumar
(WP(MD)Nos.16819 to 16823/2012)
^For Petitioner : No Appearance
(WP(MD)No.10950 of 2009)
For Respondents : Mr.R.Muthukumarasamy
(for R1 and R15 in Advocate General
WP(MD)Nos.16819/2012) Assisted by Mr.R.Velmurugan
(for R1 & R9 in WP(MD)16820/2012) Government Advocate
(for R1 & R12 in WP(MD)16821/2012)
(for R1 & R12 in WP(MD)16822/2012)
(for R1 & R12 in WP(MD)16823/2012)
(for R1 & R2 in WP(MD)10950/2009)
: Mr.K.Senthil
(for R2 in WP(MD)Nos.16819 to 16823/12)
(for R3 in WP(MD)No.10950 of 2009)
(in WP(MD)No.16819/2012) : No Appearance (for R4 to R6)
(in WP(MD)No.16819/2012) : No Appearance (for R3, R7 to R14)
(in WP(MD)No.16820/2012) : No Appearance (for R3 to R8)
(in WP(MD)Nos.16819 to 16823/2012) : No Appearance (for R3 to
R11)
:COMMON ORDER
The issue involved in all the writ petitions are one in the same. Therefore, all the writ petitions are taken up and hear took other.
2.The case of the petitioners in all the writ petitions that they joined in the respective stations as Station Officer and discharged their duty without any black mark. The next avenue of promotion to the post of Assistant Divisional Officer arose a proceedings dated 22.07.2008 issued by the first respondent. In the said proceedings, the candidates were given seniority according to the Serial Number in the selection list instead of preparing a seniority list based on the rank list. The said attempt of the first respondent was questioned by the petitioners in all the writ petitions on the ground that it was totally against the service law, since it was prepared without any combined seniority list and without calling any objections, following the selection list issued by the second respondent, which is only a recruiting agency and given promotions based on the same. Therefore, the petitioner in W.P.(MD)No.16819 of 2012 filed writ petition in W.P.No.8292 of 2008. The said writ petition was allowed by order of this Court dated 25.11.2010 setting aside the impugned memorandum issued by the first respondent and further directed the first respondent to prepare a seniority list based on the merit list. Pending disposal of the said writ petition, the candidates, who are all selected as per their serial number in the selection list were also given temporary promotions under Section 39(1)(a) of Tamilnadu Subordinates Service Rules. Aggrieved over the said order, the individual respondents in the above writ petitions filed Writ Appeal in W.A.Nos.913 to 918 of 2010. Apart from the above Writ Appeals, the first respondent namely, the Director of Fire Services also filed separate writ appeals in W.A.Nos.860 to 865 of 2010, all the writ appeals were clubbed and common order was passed. The said writ appeals were disposed by a common judgment dated 02.11.2012, wherein the order of the learned Single Judge in respect of the setting aside the impugned memorandum is confirmed. However, further directions were given to prepare a seniority list as per the ranking list was set aside and it was further directed the first respondent to prepare the seniority list and to call for objections and thereafter to publish the seniority list within a period of two weeks. Accordingly, the first respondent by the order dated 04.12.2012 issued a seniority list and called for objections, which is impugned in all these writ petitions.
3.It is main contention of the petitioners in the said writ petitions that the impugned proceedings has been issued by the first respondent only to comply with the orders of the Hon'ble Division Bench without following the relevant rules thereunder. Therefore, the first respondent herein has made the procedure of calling for objections before passing the seniority list an empty formality.
4.Heard Mr.J.Anandkumar, learned counsel appearing for the petitioner in WP(MD)Nos.16819 to 16823 of 2012, Mr.R.Muthukumarasamy, learned Advocate General, assisted by Mr.R.Velmurugan, learned Government Advocate appearing for the respondents 1 and 15 in WP(MD)No.16819/2012, for R1 and R9 in WP(MD)16820/2012, for R1 & R12 in WP(MD)16821/2012, for R1 & R12 in WP(MD)16822/2012, for R1 & R12 in WP(MD)16823/2012, for R1 & R2 in WP(MD)10950/2009 and Mr.K.Senthil, learned counsel appearing for R2 in WP(MD)Nos.16819 to 16823/12 and for R3 in WP(MD)No.10950 of 2009.
5.The learned counsel appearing for the petitioners has rightly contended that the second respondent in all these writ petitions namely the Secretary, Tamil Nadu Public Service Commission, is only a recruiting agency and the first respondent is the competent authority to prepare the list of seniority. Further, the stand taken by the first respondent that they does not know the marks obtained by the respective petitioners to enable them to prepare the seniority list.
6.The first respondent has categorically stated that the reasons for following the Tamil Nadu Public Service Commission list as a seniority list, the said fact could make it clear of the first respondent would not consider any of the objections raised by the petitioners in the circumstances. It is further contention of the petitioners that the said reasons that as per Rule 35(a) of the Tamilnadu State and Subordinate Service Rules and the hundred point roaster which prevailed during that period of appointment is illegal since the entry into the feeder category of the Station Fire Officers are consisting of four methods. When there are more than one method of entry into the feeder category, that Rule 35(a)(a) alone as an application for following the seniority. Admittedly, as per the Tamilnadu Fire Subordinate Service Rules, the entry to the feeder category of State Fire Officer is by four methods. Hence, the 1st respondent herein ought to have followed Rule 35(a)(a) and ought to have issued a combined seniority list in furtherance of the orders of the Hon'ble Division Bench. However, citing the order of the Hon'ble Division Bench and republishing the list of TNPSC is illegal.
7.The learned Advocate General appearing for the official respondents has contended that as against the order passed in the writ appeal, the Government, especially the Tamil Nadu Public Service Commission has prepared S.L.P. before the Hon'ble Supreme Court. The respondents also contended that the first respondent has filed the writ appeals in W.A.Nos.862 to 865 of 2010, apart from the writ appeals filed by the individual respondents in WP.Nos.8290 of 2008 to 8295 of 2008, in the said writ appeals, the second respondent herein/Tamil Nadu Public Service Commission has also filed the common counter stating that the Tamil Nadu Public Service Commission is governed by Tamilnadu State Subordinate Service Rules, insofar as the recruitment and assigning ranking to the selected candidates. It is submitted that Rule-4 of the Tamil Nadu State and Subordinate Service Rules provided for approved candidates. Rule 35(a) deals with seniority and ranking insofar as direct recruitment is concerned which is extracted below:
?The seniority of a person in a service, class or category or grade shall unless he has been reduced to lower rank as a punishment be determined by the rank obtained by him in the list of approved candidates drawn up by the Tamil Nadu Public Service Commission or other appointing authority, as the case may be, subject to the rule of reservation where his probation shall be the date on which he joins duty irrespective of his seniority.?
8.The respondent contended that as against the dismissal of the above writ appeals, they preferred the appeal before the Hon?ble Supreme Court and the same was dismissed. The respondent further contended that now they filed the review application as against the order passed in the above writ appeals and the same is pending.
9.The said contention of the first respondent cannot be accepted for the simple reason that it is a duty to get the mark list prepared by the second respondent/Tamil Nadu Public Service Commission, then preparing the list of seniority, without doing their official duty, they cannot raise a contention before this Court.
10.Now, the learned counsel appearing for the petitioners have contended that the issue involved in all these writ petitions is identical to the issue decided by common judgment of this Court in W.P.Nos.34957 of 2006, etc., batches in W.A.Nos.2730 of 2012, etc., batches by order dated 31.03.2015. As against the said order, the official respondents in the said writ petitions and writ appeals filed S.L.P.Nos.22094 to 22098 of 2015, etc. and the Hon?ble Supreme Court was pleased to dismiss the above said S.L.P. petitions by order dated 22.01.2016.
11.This Court has given enough consideration to the arguments advanced on either side and consider the case of the petitioners and the respondents and also the judgment of the Hon?ble Division Bench of this Court held in W.P.No.34957 of 2006 etc., batches and W.A.Nos.2730 of 2012, etc., batches dated 31.03.2015 in respect of Highways Department and Public Works Department.
12.A perusal of the said judgment shows that the issue involved in these writ petitions and in the above said decided cases are identical to each other. The question of seniority list was decided in the above batches of writ petitions and writ appeals would covered the issue involved in these writ petitions and the relevant portion of the judgment in WA.Nos.2705, 2730, 2731 of 2012, 2394 and 1033 of 2013 is extracted hereunder:
?79. At this juncture, it may be necessary to take note of one more aspect. Rule 22 as well as Schedules-III, III-A, III-B and IV do not employ the expression "roster". On the other hand, they employ two expressions namely (i) "Rotation" and (ii) "Turn". As we have seen earlier, a 200 point roster came into existence in the place of a 100 point roster with effect from 29.04.2009. Whenever the number of vacancies sought to be filled up are lesser than the strength of the roster, the only expression used is "Turn". This can be seen from the language of Rule 22(c). But if the number of vacancies sought to be filled up are more than the strength of the roster, then both the expressions "rotation" and "turn" would come into play.
80. For instance, in the recruitment about which we are concerned, 269 posts were sought to be filled up. At that time, the strength of the roster was only 100, under Schedule-III. This is why G.O.Ms.No.104, Highways Department dated 19.06.2000 indicated (i) that the first batch of 60 candidates were allotted against Turn Nos. 41 to 100 in the 5th rotation (ii) that the second batch of 100 candidates were allotted against Turn Nos. 1 to 100 in the 6th rotation (iii) that the third batch of 100 candidates were allotted against Turn Nos. 1 to 100 in the 7th rotation and (iv) that the fourth batch of 9 candidates were allotted against Turn Nos. 1 to 9 in the 8th rotation.
81. If we understand the above mechanism, it will be clear that the interpretation sought to be given to the second limb of Rule 35(a) by the learned senior counsel for the contesting respondents is wholly misconceived.
Rule 35(a) does not, to say the least, mandate that the 200 point roster would be determinative of the seniority of the selectees. It is merely determinative of the percentage of reservation. The second limb of rule 35
(a) merely dictates that while according seniority on the basis of merit, the appointing authority is to ensure that the percentage of reservation was not sacrificed. Therefore, the proper way of interpreting and implementing rule 35 (a) for the Service Commission is to (i) prepare a list of selectees in the order of merit and (ii) fit them against the 200 point roster in the Schedule III. Once such fitment is done and the process of appointment is over, with the selected candidates joining duty, the roster will lose its significance and will have nothing to do with the determination of seniority. Seniority will then be decided only by the rank secured by the candidates. The second limb of rule 35 (a) will also stand satisfied by this process since the rule of reservation would have been observed, due to the fitment against roster. Therefore, the second contention of the respondents as though rule 35 (a) mandates the roster to be the seniority is only a myth. CONTENTION-3 (BASED ON ARTICLE 16 (4-A)
82. Another interesting argument was sought to be raised by one of the learned senior counsel for the contesting respondents. According to him, the State is entitled to make a provision for reservation in matters of promotion with consequential seniority to any class or classes of posts, in terms of Clause (4-A) of Article 16. Therefore, according to him, the roster was intended to benefit the reserved category candidates, so that they gain promotion at an accelerated pace, by virtue of being placed high in the seniority.
83. But the aforesaid contention is completely fallacious at least for two reasons. They are:
(i) The benefit of Article 16(4-A) is available only to Scheduled Castes and Scheduled Tribes and the same cannot be extended to Backward Classes, by converting the roster into a seniority list;
(ii) In any case, the 200 point roster in Schedule-III contains provisions for all kinds of reservations such as vertical, horizontal and internal, in favour of Backward Classes, Backward Class Muslims, Most Backward Classes, Scheduled Castes, Scheduled Castes Arunthathiyars on preferential basis, Scheduled Tribes, Women, destitute widows, Ex-servicemen, physically challenged and persons who studied in Tamil Medium. Therefore, if the 200 point roster is converted into a seniority list, some of these categories such as physically challenged, persons who studied in Tamil Medium etc., will also get seniority over and above more meritorious candidates belonging to the other reserved categories within the Constitutional Scheme.
Unfortunately, this issue has been completely overlooked both by the Service Commission as well as by the Government.
Therefore, the last objection of the respondents also deserves to be rejected.
CONCLUSION
84. It will be clear from the above discussion (i) that the decision of the respondents to treat the 100 point roster itself (prevailing at that time) as the seniority list, on the basis of the decision of the Supreme court in P.S.Ghalaut, was not correct in view of the peculiarity of the roster in the State (ii) that in any case, the decision rendered in P.S.Ghalaut was declared as not a good law in Bimlesh Tanwar in the year 2003, without specifically invoking the doctrine of prospective overruling
(iii) that at any rate, the first ever seniority list was released by the Engineer-in-Chief of the Highways department only on 29.4.2004, which was subsequent to the decision in Bimlesh Tanwar (iv) that all other proceedings issued prior to 29.4.2004, on which reliance is placed by the respondents to attribute knowledge of the seniority position to the appellants herein, did not speak about fixation of seniority specifically and hence the first seniority list should be taken to have been issued only on 29.4.2004 and (v) that therefore, the seniority of the appellants vis-a-vis the other selectees under the notification dated 10.7.1999 should be determined only with reference to the rank assigned to them by the Service Commission in terms of rule 35 (a) of the General Rules for Tamilnadu State and Subordinate Services and not as per the roster. Therefore, the appellants are entitled to succeed.
85. In view of the above, the writ appeals are allowed, the order of the learned judge is set aside and the writ petitions filed by the appellants are allowed. There will be a direction to the official respondents to take the rank assigned by the Service Commission to the selectees, as the basis for fixation of seniority and issue appropriate orders within a period of 4 weeks from the date of receipt of a copy of this order. There will be no order as to costs.?
13.In view of the forgoing reasons as per the above judgment in the batch Writ Appeal passed by the Hon'ble Division Bench of this Court, the petitioners in all these writ petitions are entitled to get the benefit of the order made in the above said batches of writ petitions and writ appeals.
14.In fine, these writ petitions are allowed and the impugned selection list published in the second respondent's bulletin No.5 dated 01.03.2001 and letter dated 20.08.1998 in D.No.44129/S/98 of the proposed respondent and impugned provisional seniority list in RC.No.22021/B1/2012 dated 04.12.2012 and final seniority list in RC.No.22021/B1/2012 dated 18.01.2013 of the first respondent are hereby quashed and consequently the respondents 1 to 3 are directed to prepare the seniority list based on the marks/ranks obtained by the petitioners, within a period of four weeks from the date of receipt of a copy of this order.
15.Accordingly, all these writ petitions are allowed with the above directions. No costs.
To
1.The Director of Fire Services, Directorate of Fire Services and Rescue Department, Egmore, Chennai-8.
2.The Secretary, Tamil Nadu Public Service Commission, Chennai.
3.The Government of Tamil Nadu, Rep. by its Secretary, Personnel and Administrative Reforms Department, Secretariat, Chennai-9..