Madras High Court
R.Rangarajan vs Secretary To Government on 3 August, 2012
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03/08/2012
CORAM
THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN
W.P.(MD)NO.8877 OF 2010
W.P.(MD)NO. 12515 OF 2011
AND
W.P.(MD)NO.1459 OF 2012
1.R.Rangarajan ... Petitioner in W.P.(MD)Nos.
8877/2010 and 12515/ 2011
2.R.Mani ... Petitioner in
W.P.(MD)No.1459/2012
Vs.
1.Secretary to Government
Agriculture Department
Secretariat, Fort St. George,
Chennai - 600 009.
2.The Chief Engineer
Agricultural Engineering Department
328, Anna Salai,
Chennai - 600 035.
3.The Tamil Nadu Public Service Commission
Rep.by its Secretary,
Government Estate,
Chennai - 600 002.
4.Secretary to Government,
Personnel and Administrative Reforms Department
Secretariat, Fort St. George,
Chennai - 600 009.
5.R.Mani
(R-5 impleaded as per order dated
24.04.2012 in M.P.(MD)No.1 of 2012 in
W.P.(MD)No.8877 of 2010)
Petitioner in W.P.(MD)No.1459 of 2012
6.The Agricultural Production Commissioner
and Secretary to Government,
Agriculture Department
Fort St. George,
Chennai - 600 009.
7.The Chief Engineer
Agricultural Engineering Department
Chennai - 600 035.
8.M.Senthil
9.K.P.Ramakrishnan
(3rd and 4th Respondents in W.P.(MD)No.12515 of 2011)
10.The State of Tamil Nadu
represented by its Secretary,
Agricultural Production Commissioner
and Principal Secretary to Government,
Agriculture (AA 4) Department,
Secretariat, Chennai - 9.
11.R.Rangarajan
(Petitioner in W.P.(MD)Nos.8877/2010, 12515/2011)
... Respondents
in all W.Ps.
PRAYER IN W.P.(MD)NO.8877 OF 2010
Petition filed under Article 226 of the
Constitution of India praying for the issuance of a Writ of Mandamus, directing
the first respondent herein to promote the petitioner as Chief Engineer,
Agricultural Engineering Department taking into account the original date of
appointment i.e.5.3.1979 and in the light of the order of the first respondent
issued in G.O.Ms.No.176, Agriculture (AA3) Department, dated 27.05.2004,
together with all consequential service and monetary benefits.
PRAYER in W.P.(MD)No.12515 of 2011
Petition filed under Article 226 of the
Constitution of India praying for the issuance of a Writ of Certiorarified
Mandamus, calling for the records pertaining to the impugned order of the first
respondent passed in G.O.(Valayam) No.318, Agriculture (Ve.Ni.3) Department,
dated 30.09.2011 and quash the same and consequently directing the respondents 1
and 2 to promote the petitioner in the post of Chief Engineer as per the
seniority list published by the first respondent in G.O.Ms.No.136, Agriculture
(A.A.3) Department, dated 29.08.2011 with all monetary benefits and attendant
benefits.
PRAYER in W.P.(MD)No.1459 of 2012
Petition filed under Article 226 of the
Constitution of India praying for the issuance of a Writ of Certiorarified
Mandamus, calling for the records on the file of the first respondent in
Government Letter No.14167/AA3/2011-6, dated 07.12.2011 and quash the same and
direct the first respondent to promote the petitioner to the post of
Superintending Engineer (Agricultural Engineering) with effect from 06.09.2010
by reverting the second respondent by taking into account the seniority fixed by
the TNPSC in accordance with law.
!For Petitioner ... Mr.Veera.Kathiravan
(In W.P.(MD)Nos.8877/2010, 12515/2011)
For Petitioner ... Mr.R.Vijayakumar
(In W.P.(MD)No.1459/2012)
^For 5th Respondent ... Mr.K.Vellaiswamy
(In W.P.(MD)No.8877/2010)
For 3rd Respondent ... Mr.S.P.Maharajan
(In W.P.(MD)No.8877/2010)
For 2nd Respondent ... Mr.Veera.Kathiravan
For Respondents 3&4 ... M/s.AL.Ganthimathi
(In W.P.(MD)No.12515/2011)
For Respondents ... Mr.K.Chellapandian
(1,2,4,6,7 and 10) Additional Advocate
(In all W.Ps.) General for
Mr.B.Pugalenthi,
Special Govt. Pleader
:COMMON ORDER
In W.P.(MD)No.8877 of 2010 and W.P.(MD)No.12515 of 2011, the petitioner is the same person. In W.P.(MD)No.8877 of 2010, there is no private parties. In W.P.(MD)No.12515 of 2011, two private parties are arrayed as respondents 3 and 4 namely, M.Senthil and K.P.Ramakrishnan. The petitioner Thiru.R.Mani in W.P.(MD)No.1459 of 2012, is the fifth respondent in W.P.(MD)No.12515 of 2011.
2.Since the facts involved in all these writ petitions are common, all the writ petitions are taken together and a common order is passed.
3.The petitioner, Thiru.Rangarajan was appointed as Assistant Engineer in the Agricultural Engineering Department on temporary basis under Rule 10(a)(i) of the Tamil Nadu State Subordinate Service Rules (for short "the Rules").
4.In normal course, the employees appointed under the Rule 10(a)(1) shall be ousted, on regular appointments are made.
5.But the Government took a sympathetic view on the temporary employees appointed under Rule 10(a)(i) of the Rules, taking into account the long service rendered by them and conducted special selection for them through the Tamil Nadu Public Service Commission.
6.In the special selection held by the Tamil Nadu Public Service Commission during 1983, 20 Assistant Engineers were successful and they were regularised in service from the date of selection or from the subsequent date as fixed by the Appointing Authority.
7.Thiru.Rangarajan, admittedly, did not participate in the said selection and he continued as temporary employee. Thereafter, the Tamil Nadu Public Service Commission held competitive examinations during 1982 to 1984 for direct recruitment to fill up 227 vacancies of Assistant Engineers.
8.The temporary Assistant Engineers serving from 1975 to 1982 under Rule 10(a)(1) of the Rules participated in the aforesaid competitive examinations that were held during 1982 to 1984.
9.The petitioner in W.P.No.1459 of 2012 and the respondents 3 and 4 in W.P.(MD)No.12515 of 2011 participated in these examinations and were successful in the competitive examinations held by the Tamil Nadu Public Service Commission during 1982 to 1984 and were selected as Assistant Engineers. But, Thiru. Rangarajan did not participate in this selection also.
10.In the subsequent special selection that was held on 04.06.1987 by the Tamil Nadu Public Service Commission, Thiru.Rangarajan participated and he was selected.
11.Based on the said selection, the Chief Engineer issued the appointment order, dated 11.05.1988 appointing Thiru. Rangarajan as regular Assistant Engineer with effect from 04.06.1987.
12.However, the temporary employees requested the Government to regularise their services with effect from their initial appointment.
13.Based on their request, the Government regularised the service of those temporary employees, who were subsequently selected, from the date of their initial appointment. But the Government made it clear that though the services of those persons were regularised from the date of appointment, their seniority shall be fixed as per the selection by the Tamil Nadu Public Service Commission.
14.The Government issued G.O.Ms.No.611, Agriculture Engineering Department, dated 13.11.1991 regularising the services of Thiru.Rangarajan as Assistant Engineer with effect from 05.03.1979 subject to the condition that his seniority be fixed as per his selection by the Tamil Nadu Public Service Commission. That is though Thiru.Rengarajan was regularised with effect from 05.03.1979, his seniority shall be counted only from 04.06.1987 as Assistant Engineer.
15.The seniority of Thiru. Rangarajan was fixed below the Assistant Engineers who were selected during 1983 and also 179 Assistant Engineers who were selected during 1982 to 1984.
16.Thiru. Rangarajan asked to revise the seniority and place him above the Assistant Engineers based on his initial appointment in 1979.
17.The request of Thiru.Rangarajan was rejected by the Government on 03.06.1997 and the same was also intimated by the Chief Engineer in his proceedings, dated 03.07.1997.
18.Both the order of the Government dated 03.06.1997 and the order dated 03.07.1997 of the Chief Engineer are extracted hereunder:
"Copy of Government Letter No.27032/AA.III/95-15, dated 03.06.1997, Secretary to Government, Agriculture (AA-3) Department, Secretariat, Chennai-600 009 addressed to the Chief Engineer (A.E) Chennai-35.
Sub: Establishment - Agricultural Engineering Department - Tvl.Govindan and R.Rengaraj, Assistant Engineer -
(Agrl. Engg.) - Fixation of Seniority -
Regarding.
Ref: 1.Your Letter No.EE.4/72263/94, dated 25.5.1995, 09.04.96
2.Your letter No.EEP/88772/96, dated 26.11.1996
3.From the Tamil Nadu Public Service Commission, letter No.869/OTD-C3/95, dated 21.01.1997.
I am directed to invite reference to the letters cited and to state that the selection list of 179 candidates by direct recruitment for the year 1982-84 was communicated to the Chief Engineer (Agricultural Engineering)in the year 1984. In this connection, the Tamil Nadu Public Service Commission in the letter third cited has stated that 179 candidates were selected for the post of Assistant Engineers (Agrl.Engg.) during 1982-84 by following the rule of reservation. But Tvl.V.Govindan and R.Rangaraj were selected for appointment as Assistant Engineers (Agrl.Engg) through Special Selection in the year 1987 by the following the rule of reservation of appointments. The Tamil Nadu Public Service Commission has therefore, stated that the question of mixing their seniority above the 179 Assistant Engineers (Agrl.Engg) does not arise and that the 2 Assistant Engineers have to take their seniority as on 04.06.1987, irrespective of date of regularisation of their temporary services in the category of Assistant Engineers (Agrl.Engg.).
2.The Government accept the stand taken by the Tamil Nadu Public Service Commission. Accordingly, I am directed to state that Tvl.V.Govindan and R.Rangaraj have to take their seniority as on 04.06.1987 irrespective of the date of regularisation of the temporary services in the category of Assistant Engineer (Agrl.Engg)".
EEP1/80772/96, dated 03.07.97:-
Sir, Sub: Establishment - Thiru R.Rangaraj Asst.Executive (AE) - Fixation of Seniority Regarding.
Ref: Your Telegram dated 17.06.97.
It is informed that the Government have examined your request for the revision of seniority in the post of Assistant Engineer/AE/ and informed this office that they have consulted the Tamil Nadu Public Service Commission regarding the fixation of seniority. It is seen that the Tamil Nadu Public Service Commission have stated that 179 candidates were selected for the post of Assistant Engineer during 82-84 by following the rule of reservation and communicated this selection list in this year 1984. Tvl.Govindan and Rangaraj were selected through Special selection in the year 1987 by following the rule of reservation of appointments. Hence the question of fixing their seniority above. 179 Assistant Engineers does not arise.
Hence, the Government states that the 2 Assistant Engineers (Tvl.V.Govindan and R.Rangaraj) have to take their seniority as on 4.6.87 in respect of the date of regularisation in their temporary services in the category of Assistant Engineers (AE)".
19.Thiru.Rangarajan filed O.A.No.7012 of 1997 before the Tamil Nadu Administrative Tribunal, questioning the order, dated 03.07.1997 of the Chief Engineer refusing to revise the seniority and to assign seniority to the petitioner based on his initial appointment on temporary basis from 1979.
20.Thiru.Rangarajan submitted before the Tamil Nadu Administrative Tribunal that the application could be closed as it became infructuous and he was granted promotion. Recording the same, the Tamil Nadu Administrative Tribunal closed O.A.No.7012 of 1997 on 25.06.2002.
21.Thiru. Rangarajan also filed W.P.No.7720 of 1999 raising the issue of seniority again and prayed for counting his service from the date of his initial appointment as temporary employee for the purpose of seniority. The writ petition was transferred to Tamil Nadu Administrative Tribunal and the same was taken on file in T.A.No.140 of 1999.
22.The Tribunal considered the matter on merits and rejected T.A.No.140 of 1999 on 08.03.2004 and upheld the seniority fixed by the Government taking the date of selection as the criteria for counting the seniority.
23.Thiru.Rangarajan filed W.P.No.44332 of 2006 to quash the order dated 08.03.2004 in T.A.No.140 of 1999. However, he had withdrawn the same on 20.08.2009. The Division Bench of this Court permitted Thiru. Rangarajan to withdraw W.P.No.44332 of 2006 on 20.08.2009 and an order to the said effect was passed.
24.Later, Thiru.Rangarajan sought to restore W.P.No.44332 of 2006 and his request was rejected by the Division Bench of this Court on 11.06.2010.
25.Thus the order of the Tamil Nadu Administrative Tribunal, dated 08.03.2004 in T.A.No.140 of 1999 (W.P.No.7720 of 1990) attained finality.
26.In the meantime, various promotions are given to the Assistant Engineers who were selected during 1983, 1982 to 1984 and 04.06.1987. That is, they were promoted as Assistant Executive Engineers, Executive Engineers and Superintending Engineers.
27.When the Assistant Engineers who were selected during 1982 to 1984 by Tamil Nadu Public Service Commission were promoted as Assistant Executive Engineers, the same was questioned by the Thiru.Rangarajan by filing O.A.No.2058 of 1998. He questioned the proceedings dated 20.02.1998 of the Tamil Nadu Government, making it clear that the regularly appointed Assistant Engineers during 1982 to 1984 are seniors to Thiru.Rangarajan and therefore, they are entitled to be promoted as Assistant Engineers prior to the appointment of Thiru.Rengarajan. On abolition of the Tribunal, the O.A.No.2058 of 1998 was transferred to this Court and re-numbered as W.P.No.32086 of 2006.
Thiru.Rangarajan withdrew the writ petition in W.P.No.32086 of 2006 (O.A.No.2058 of 2006) on 29.06.2007
28.Thiru.Rangarajan also filed W.P.No.41539 of 2006 (O.A.No.3838 of 1999) praying for a direction to include his name in the panel for promotion to the post of Assistant Executive Engineer in accordance with G.O.Ms.No.719 Agriculture Engineering Department, dated 23.12.1993.
29.On abolition of the Tribunal, O.A.No.3838 of 1999 was transferred to this Court and renumbered as W.P.No.41539 of 2006. This writ petition was also withdrawn by Thiru.Rengarajan on 19.06.2007 and an order dated 19.06.2007 was passed permitting him to withdraw the writ petition.
30.In view of various proceedings initiated by Thiru.Rangarajan questioning the fixation of seniority as stated above, the promotion in the higher post namely, Assistant Executive Engineer, Executive Engineer and Superintending Engineer were made on temporary basis under Rule 39 of the Rules.
31.In these circumstances, Thiru.Rengarajan filed W.P.(MD)No.8877 of 2010 seeking for a direction to promote him as Chief Engineer by taking into account the original date of his appointment as Assistant Engineer on 05.03.1979 and also in the light of the order of the Government in G.O.Ms.No.176, Agriculture Department, dated 27.05.2004. He also filed M.P.No.1 of 2010 praying for interim order of injunction forbearing the respondents from reverting him from the post of Superintending Engineer, pending disposal of the writ petition.
32.While ordering notice of motion, in W.P.(MD)No.8877 of 2010 on 13.07.2010, this Court granted the interim order of status quo in M.P.No.1 of 2010 in W.P.(MD)No.8877 of 2010.
33.The fifth respondent in W.P.(MD)No.8877 of 2010, a private party, who is the petitioner in W.P.(MD)No.1459 of 2012, has filed M.P.No.2 of 2010 in W.P.(MD)No.8877 of 2010 seeking to vacate the aforesaid interim order of status quo.
34.Likewise, the Department filed M.P.No.1 of 2011 in W.P.(MD)No.8877 of 2010 seeking to vacate the interim order of status quo referred to above.
35.Thiru.Rangarajan also filed another writ petition in W.P.(MD)No.12515 of 2011 to quash G.O.Ms.No.318, Agriculture Department, dated 30.09.2011 and also sought for a direction to the Department to promote him in the post of Chief Engineer as per the seniority list published by the Government in G.O.Ms.No.136, Agriculture Department, dated 29.08.2011.
36.In G.O.Ms.No.318, the respondents 3 and 4, in W.P.(MD)No.12515 of 2011 were posted as in charge Chief Engineer and the respondents 3 and 4 in W.P.(MD)No.12515 of 2011 were among the 179 Assistant Engineers, who were selected by the Tamil Nadu Public Service Commission during 1982 to 1984, as stated above.
37.Thiru.Rangarajan also filed another application in M.P.(MD)No.2 of 2011 in W.P.(MD)No.12515 of 2011 praying for interim stay of G.O.Ms.No.318.
38.Without admitting or ordering notice of motion in W.P.(MD) No.12515 of 2011, interim order of stay was granted on 03.11.2011 in M.P.(MD)No.2 of 2011 in W.P.(MD)No.12515 of 2011 and the same was also extended periodically. Ultimately, writ petition was admitted on 02.02.2012. The Department filed M.P.(MD)No.5 of 2011 in W.P.(MD)No.12515 of 2011 seeking to vacate the interim stay granted by this Court on 03.11.2011 in M.P.(MD)No.2 of 2011 in W.P.(MD)No.12515 of 2011.
39.This Court opined that the continuance of interim order would not be proper and passed an order dated 02.02.2012 in M.P.(MD)Nos.2, 3 and 5 of 2011 in W.P.(MD)No.12515 of 2011 modifying the stay order to the effect that the additional in charge post as Chief Engineers given to the respondents 4 and 4 are subject to the result of the writ petition.
40.Only thereafter, though the respondents 3 and 4 in W.P.(MD)No.12515 of 2011 were given promotion as additional in charge Chief Engineer on 29.08.2011 in G.O.Ms.No.136, they were able to occupy the post. That is, only after the aforesaid order of this Court dated 02.02.2012 in M.P.(MD)Nos.2, 3 and 5 2011 in W.P.(MD)No.12515 of 2011, the respondents 4 and 5 in W.P.(MD) No.12515 of 2011 occupied the post of additional charge Chief Engineer.
41.Though the petitioner in W.P.(MD)No.1459 of 2012 was selected as Assistant Engineer during 1982 to 1984 and he was one among the 179, he was not promoted as Superintending Engineer and on the other hand, Thiru.Rangarajan, was promoted as Superintending Engineer in view of the status quo order granted in M.P.No.1 of 2010 in W.P.(MD)No.8877 of 2010 on 13.07.2010. The request of the petitioner in W.P.(MD)No.1459 of 2012 to revert Thiru.Rangarajan and to promote him with effect from 06.09.2010 as Superintending Engineer for the year 2009- 2010 was rejected by the Government in its letter dated 07.12.2011. The order dated 07.12.2011 of the Government is challenged by the petitioner in W.P.(MD)No.1459 of 2012.
42.Heard both sides.
43.In all the writ petitions, the issue that arises for consideration is as to whether Thiru.Rangarajan could claim seniority from the date of his initial appointment in 1979 as temporary employees under Rule 10(a)(i) of the Rules or he should count his service for the purpose of seniority from 04.06.1987, the date on which he was regularly selected as Assistant Engineer.
44.As stated above, the issue was finally concluded by the order dated 08.03.2004 of the Tamil Nadu Administrative Tribunal in T.A.No.140 of 1999 in W.P.No.7720 of 1999. The order attained finality, since the writ petition filed against the same in W.P.No.44332 of 2006 was withdrawn by Thiru.Rangarajan on 20.08.2009 and the attempt to revive the writ petition was rejected by the Division Bench of this Court on 11.06.2010. Hence, the order of the Tribunal, dated 08.03.2004 in T.A.No.140 of 1999 attained finality. Thus, Thiru.Rangarajan could not again and again ask for fixation of seniority by counting his service from his initial date of appointment as temporary Assistant Engineer under Rule 10(a)(1) of the Rules.
45.The order dated 08.03.2004 in T.A.No.140 of 1999 is extracted hereunder:
"The Transferred Application coming for hearing on this day and upon hearing the arguments of Mr.V.Kathiravan, Counsel for the applicant and Mr.V.Subbiah, Additional Standing Counsel and Mr.M.Hidayathullakhan, Government Advocate, for the respondents, the Tribunal made the following order:
This application is filed by Thiru.R.Ranagarajan questioning the seniority fixed by the respondent.
2)The applicant was appointed as Assistant Engineer in the Agricultural Engineering Department in the year 1979 only under Rule 10(a)(i) as a temporary candidate. Subsequently, the Government passed G.O.Ms.No.1230, dated 28.06.1983 as per which the Government took a decision to regularise the appointment of all the Assistant Agricultural Engineers like the applicant who have been appointed temporarily under Rule 10(a)(i). Seniority has been prepared for the year 1983 and persons who have been selected and appointed by the Service Commission are placed over and above the applicant and the applicant was placed below to them.
Challenging his placement in the bottom, this application is filed.
3)The applicant was only appointed temporarily under rule 10(a)(i) and he has been regularised by virtue of the order passed in the year 1983. In the meantime, persons who have applied for the post of Assistant Agricultural Engineer through the Service Commission were selected and they were given posting in the year 1984. Therefore, naturally those persons who have been selected through the service commission have been placed on top and the temporary appointees like the applicant who are regularised have been placed on top and the temporary appointees like the applicant who are regularised have been placed below them. There is nothing illegal or wrong about the same. The applicant cannot hope to overtake the regularly selected candidates, in view of the fact that this regularisation was only by virtue of the Government order and his initial appointment was only purely temporary. He cannot claim seniority over and above the regularly selected service commission candidates of the same year. Therefore, the application fails and the same is dismissed".
46.W.P.(MD)No.8877 of 2010:-
The prayer in the writ petition preferred by Thiru.Rangarajan is for a direction to the Government to promote him as Chief Engineer in Agricultural Engineering Department, taking into account, the original date of appointment i.e., 05.03.1979 and in the light of G.O.Ms.No.176 Agricultural Department, dated 27.05.2004.
47.As already stated, Thiru.Rangarajan could not ask promotion to the post of Chief Engineer by counting his service for the purpose of seniority in the post of Assistant Engineer from 05.03.1979. Therefore, the first part of the prayer in W.P.(MD)No.8877 of 2010 is liable to be rejected, in view of the order dated 08.03.2004 in T.A.No.140 of 1999(W.P.No.7720 of 1999).
48.Furthermore, at this juncture, it is relevant to note that G.O.Ms.No.176, dated 27.05.2004 referred to in the prayer in W.P.(MD)No.8877 of 2010 is nothing but temporary promotion given to Thiru.Rangarajan and others as Executive Engineers under Rule 39 (a)(1) of the Rules, in view of the various proceedings pending before the Tamil Nadu Administrative Tribunal at that time.
49.I am unable to understand as to how the temporary promotion given to Thiru.Rangarajan in G.O.Ms.No.176 would confer right to him to count his service as Assistant Engineer from 05.03.1979 for the purpose of seniority, while he was regularly selected to the post of Assistant Engineer only on 04.06.1987. Further, the regular appointment order, dated 11.05.1988 was given by the Chief Engineer to Thiru.Rangarajan. Paragarph 8 of the appointment order is extracted heredunder:
"8.In view of the above Thiru.R.Rangaraj and Thiru.V.Govindan who are working as Assistant Engineer (AE) on temporary basis are regularly appointed as Assistant Engineer (AE) in Class V of Tamil Nadu Agricultural Engineering Service in the scale of pay of Rs.1160-50-1950 plus usual other allowances admissible under rules inforce time to time with effect from 4.6.1987 F.N as per the letter 6738/G5/83, dated 04.06.1987 of Tamil Nadu Public Service Commission, dated 04.06.87 of Tamil nadu Public Service Commission".
50.In fact while ordering special section for temporary Assistant Engineers as regular Assistant Engineers, the Government issued G.O.Ms.No.1230, Agriculture Department, dated 28.06.1983 stating that the persons selected in the special selection shall not be given retrospective regularisation from the date of their initial appointment. The following passage in G.O.Ms.No.1230 is extracted hereunder:
"The services of all person who come out successful in the special selection will be regularised from the date of selection or from any subsequent date as may be fixed by the appointing authority for the posts. They shall not be eligible for retrospective regularisation".
51.Moreover, Thiru.Rangarajan sought to question the Government letter dated 20.02.1998 in O.A.No.2058 of 1998 and later he had withdrawn. This fact was already stated above.
52.The letter dated 20.02.1998 of the Secretary to Agriculture Department of Tamil Nadu Government is extracted hereunder:
"I am directed to invite your attention to your representation cited and to state that you were appointed as Assistant Engineer(AE) on 10(a)(1) basis on 05.03.79 and that at the time of temporary appointment you were informed that such temporary appointment would not confer any right on you for future regular appointment as Assistant Engineer (AE) and that such temporary service was liable to be terminated at any time without assigning any reasons therefore.
2.The post of Assistant Engineer (ae) comes under the purview of the Tamil Nadu Public Service Commission. The Seniority number for the post is being assigned by the Tamil Nadu Public Service Commission duly following the rules of reservation, performance in the selection etc., therefore, Tamil Nadu Public Service Commission seniority once assigned is final and date of temporary appointment in the Department is of no relevance in the matter of seniority.
3.In 1982-84, 179 Assistant Engineer (AE) (including those who had worked as 10(a)(1) Assistant Engineers from the year 1975 to 1982 in the Agricultural Engineering Department were selected by the Tamil Nadu Public Service Commission and their service have also been regularised retrospectively from the date of their temporary appointment. But their seniority was fixed as per the seniority assigned by the Tamil Nadu Public Service Commission without reference to the date of their temporary appointment in the Department. Incidentally there are many Assistant Engineers in the 1982-84 batch, whose services have been regularised from the dates anterior to your date of regularisation.
4.You failed to appear for the Tamil Nadu Public Service Commission selection for direct recruitment of Assistant Engineer (AE) during 1982-84, even though you were in temporary service service in the Department of Agricultural Engineering at that time, whereas 179 Assistant Engineers (AE) who had responded to the TNPSC Notification appeared for the selection and got selected as Assistant Engineer (AE) by TNPSC for appointment as Assistant Engineer (AE) in Agricultural Engineering Department.
5.While all such TNPSC selected Assistant Engineers (AE) were regularly appointed as Assistant Engineer (AE) by direct recruitment in 1984, you continued to remain as temporary Assistant Engineer (AE) even in 1986. That being the case, you cannot be given a placement above the 1982-84 batch of directly recruited Assistant Engineer (AE).
6.In December 1986, it was reported that all except yourself and Thiru.V.Govindan remained as temporary Assistant Engineer (AE) though they were temporarily appointed as Assistant Engineer (AE) before 31.12.1981. Hence, a special selection was sought to be conducted by TNPSC for those who temporary Assistant Engineers (AE) and they were regularly appointed from 04.06.87, after assigning the ranking 1/87 and 2/87 respectively. This recruitment for all purpose was conducted only in 1987. It is informed that no recruitment can be made retrospectively.
7.When the 2 Assistant Engineers (AE), including yourself had represented at a later date for protection of the past temporary service, the requests were sympathetically considered and the services retrospectively regularised with effect from the date of first appointment ie., 5.3.1979 and 26.2.1979 respectively. However, such retrospective regularisation of services would not alter the seniority position and your seniority continued to be 1/87 and 2/87 respectively. It is also informed that retrospective regularisation and consequent benefits such as awarding of selection grade or special grade status are not relevant to fixation to fixation of seniority.
8.The whole issue has been re-examined by Government in consultation with the TNPSC in 1997 and it has been decided that inasmuch as you (and another one Thiru.V.Govindan) were selected for appointment as Assistant Engineer(AE) through Special selection in the year 1987, the question of fixing your seniority above Assistant Engineer (AE) selection during 1982-84 batch does not arise and that you have to take the seniority as on 04.06.87 irrespective of date of regularisation of the temporary services in the category of Assistant Engineer(AE).
9.There are about 129 Assistant Engineers (AE) of 1982-84 batch who are still waiting for promotion as Assistant Executive Engineer (AE) and since they are seniors to you, you will get your turn for promotion to the post of Assistant Executive Engineer (AE) only after promoting the remaining batch of Assistant Engineers (AE) belong to the year 1982-84. Such being the case, the 1982-84 batch of Assistant Engineers (AE) who have been promoted as Assistant Executive Engineers (AE) in September 1997 could not be considered as juniors to you.
10.In these circumstances, your name for promotion to the post of Assistant Executive Engineer (AE) will be considered according to seniority".
53.In view of the various pending proceedings, the employees were given temporary promotions under Rule 39(a)(1) of the Rules. G.O.Ms.No.176, is one of such Government orders. In G.O.Ms.No.176, Thiru.Rangarajan was given temporary promotion as Executive Engineer, invoking Rule 39(a)(1). It is stated that in view of the same, the temporary promotion was given without assigning any seniority.
54.Therefore, I am of the view that W.P.(MD)No.8877 of 2010 has no merit and the same is liable to be dismissed. Accordingly, the same is dismissed.
55.W.P.(MD)No.12515 of 2011:-
This writ petition is filed by Thiru.Rangarajan, to quash G.O.Ms.No.318, Agriculture Department, dated 30.09.2011 granting promotion to respondents 4 and 5 as additional charge Chief Engineer.
56.In G.O.Ms.No.611, the request of Thiru.Rangarajan for regularisation with effect from his initial appointment was conceded on condition that his seniority shall be fixed only from the date of his selection by Tamil Nadu Public Service Commission. That is he was granted all other benefits from 05.03.1979 such as selection grade, special grade, pay etc., except seniority since the seniority shall be counted from the date of regular selection. The same is upheld by the Tamil Nadu Administrative Tribunal by the order dated 08.03.2004 in T.A.No.140 of 1999 (W.P.No.7720 of 1999), as stated above.
57.Therefore, W.P(MD)No.12515 of 2011 has no merit and he could not stall the posting of his seniors as Chief Engineer, in charge. The Government has granted temporary promotion or posting as in-charge in view of the various litigations initiated by Thiru.Rangarajan, as stated above.
58.In W.P.(MD)No.12515 of 2011, Thiru.Rangarajan sought promotion as Chief Engineer based on G.O.Ms.No.136, Agriculture Department dated 29.08.2009.
59.G.O.Ms.No.136 is nothing but regularisation of service of 137 Assistant Engineers who were temporarily promoted as Assistant Executive Engineers from the post of Assistant Engineers. In my view, even in the said Government order, it is made clear that the same is subject to the outcome of the writ petition in W.P.No.44332 of 2006 and W.P.(MD)No.8877 of 2010.
60.I have already dismissed W.P(MD)No.8877 of 2010 and W.P.No.44332 of 2006 was withdrawn by Thiru.Rangarajan himself and the order of the Tamil Nadu Administrative Tribunal, dated 08.03.2004 that was questioned in W.P.No.44332 of 2006 attained finality. Hence, the Government is at liberty to pass fresh order based on the aforesaid development.
61.In any event, Thiru.Rangarajan could not claim promotion for the post of Chief Engineer over the respondents 3 and 4 who were regularly selected as Assistant Engineers prior to Thiru.Rangarajan during 1982 to 1984, while Thiru.Rangarajan was selected only on 04.06.1987. Hence, W.P(MD)No.12515 of 2010 is dismissed.
62.W.P.No.1459 of 2012:-
W.P.No.1459 is preferred by R.Mani claiming the post of Superintending Engineer from 06.09.2010 for the year 2009-2010. His claim was rejected by an order dated 07.12.2011 for the reason that Thiru.Rangarajan, the second respondent in W.P.No.1459 of 2012, was promoted as Superintending Engineer, in view of the interim order dated 13.07.2010, in M.P.(MD)No.1 of 2010 in W.P(MD).No.8877 of 2010. Hence, the order dated 07.12.2011 of the Government refusing to grant promotion to the post of Superintending Engineer from 06.09.2010 for the year 2009-2010 was questioned in W.P.(MD)No.1459 of 2012.
63.Paragraph Nos.3 and 4 of the order dated 07.12.2011 is extracted hereunder:
"3.Further, I am also to state that in your representation dated 03.02.2011 and 25.03.2011 you have registered to revert your Junior, namely, Thiru.R.Rengaraj whose Tamil Nadu Public Service Commission seniority is 1/87 and he is temporarily officiating in the post of Superintending Engineer (Agricultural Engineering) and also requested the Government to give promotion to you as Superintending Engineer (Agricultural Engineering) with effect from 06.09.2010 in accordance with the Tamil Nadu Public Service Commission seniority. In this connection, I am to inform you that Thiru.R.Rengarajan has filed W.P.No.8877 of 2010 before the Madurai Bench of Madras High Court with a prayer to issue a direction to the first respondent ie., Government to promote him as Chief Engineer (Agricultural Engineering) taking into account the original date of appointment ie., 05.03.1979 and also prayed to issue interim injunction forbearing the respondents from reverting him from the post of Superintending Engineer (Agricultural Engineering).
4.The Hon'ble Madurai Bench of Madras High Court in its order, dated 13.07.2010, in Miscellaneous Petition No.1 of 2010 in W.P.(MD)No.8877 of 2010 has ordered Notice of motion returnable by eight weeks and status quo to be maintained till then".
64.The impugned order mainly relies on the interim order dated 13.07.2010 in M.P.(MD)No.1 of 2010 and W.P.(MD)No.8877 of 2010.
65.I have already dismissed W.P.(MD)No.8877 of 2010. Hence, I am of the view that the writ petition must fail.
66.However, learned counsel for the second respondent has relied on the order dated 29.08.2011 in W.A.(MD)Nos.3248 and 3278 of 2004 directing the Tamil Nadu Public Service Commission to maintain status quo till the disposal of the writ petition.
67.In my considered view, the Tamil Nadu Public Service Commission has nothing to do with determining the seniority of Assistant Engineers etc., as the same attained finality, as stated above. Therefore, Thiru.Rangarajan could not take shelter under the order of the Division Bench in W.A.(MD)Nos.3248 and 3278 of 2004.
68.Further, Thiru.Rangarajan is not the appellant in W.A.(MD)Nos.3248 and 3278 of 2004 and he is also not a party in the batch of cases in which the order dated 29.08.2011 was passed in W.A.(MD)Nos.3248 and 3278 of 2004 etc.
69.The temporary employee, who initially bargained for special selection, subsequently requested for regularisation from the date of appointment and later, he claimed seniority from the date of his original appointment as temporary employee.
70.For the aforesaid reasons, W.P.(MD)No.1459 of 2012 has to be allowed and the impugned order 07.12.2011 is quashed. The petitioner in W.P.No.1459 of 2012 has to be promoted as Superintending Engineer from 06.09.2010. He was denied promotion from 06.09.2010 only on the ground that there was an interim order in favour of Thiru.Rangarajan in M.P.(MD)No.1 of 2010 in W.P.(MD)No.8877 of 2010.
71.In the result, W.P.(MD)No.8877 of 2010 and W.P(MD)No.12515 of 2011 are dismissed and W.P.(MD)No.1459 of 2012 is allowed. No costs. Consequently, connected miscellaneous petitions are closed.
SMS/TK To
1.Secretary to Government, Agriculture Department, Secretariat, Fort St. George, Chennai - 600 009.
2.The Chief Engineer, Agricultural Engineering Department, 328, Anna Salai, Chennai - 600 035.
3.The Secretary The Tamil Nadu Public Service Commission, Government Estate, Chennai - 600 002.
4.Secretary to Government, Personnel and Administrative Reforms Department Secretariat, Fort St. George, Chennai - 600 009.
5.The Secretary to Government Government of Tamil Nadu Agricultural Production Commissioner and Principal Secretary to Government, Agriculture (AA 4) Department, Secretariat, Chennai - 9.