Madras High Court
K. Ramalingam vs The Union Of India on 30 July, 2004
Author: P.K. Misra
Bench: P.K. Misra, F.M. Ibrahim Kalifulla
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30/07/2004
CORAM
THE HONOURABLE MR. JUSTICE P.K. MISRA
AND
THE HONOURABLE MR. JUSTICE F.M. IBRAHIM KALIFULLA
WRIT PETITION NO.19701 OF 1998
and
W.M.P.NO.29860 OF 1998
K. Ramalingam .. Petitioner
-Vs-
1. The Union of India,
rep. by its Secretary,
Ministry of Personnel,
Public Grievances and Pension,
New Delhi.
2. The State of Tamil Nadu,
rep. by its Chief Secretary,
Fort St. George, Chennai 9.
3. The Registrar,
Central Administrative Tribunal,
Madras Bench, Chennai 104. .. Respondents
Petition filed under Article 226 of the Constitution of India for the
issuance of Writ of Certiorarified Mandamus as stated therein.
For Petitioner : Mr.R. Gandhi
Senior Counsel for
Mr.R.G. Narendhiran
For Respondent-1: Mr.V.T. Gopalan
Addl. Solicitor General for
Mr.R. Santhanam
Respondent-2 : Mr.D. Krishnakumar
Special Govt. Pleader
:J U D G M E N T
P.K. MISRA, J In this writ petition, the petitioner has prayed for quashing the order dated 1.12.1998 of the Central Administrative Tribunal in O.A.No.235 of 1998 and the order of the first respondent in Memorandum No.14 01/10/97-AIS(I) dated 19.1.98 and to restore the seniority of the petitioner as per order No.14014/45/94-AIS(I) dated 29.9.94.
2. The facts giving rise to the present writ petition are as follows :- The petitioner was appointed as Class I Officer in the Commercial Tax Department of the State of Tamil Nadu after being selected by the Tamil Nadu Public Service Commission and in course of time he was promoted to different posts and ultimately he was promoted as Joint Commissioner. In 1994, the petitioner was recruited to Indian Administrative Service by process of selection as envisaged under Rule 4(1 )(c) read with 8(2) of the Indian Administrative Service ( Recruitment) Rules, 1954, hereinafter called the Recruitment Rules. On 29.9.199 4, the Government of India taking into account the length of past service of the petitioner rendered in his former service under the State Government, fixed the year of allotment as 1986 by giving 8 years weightage. This was apparently done in accordance with Rule 3(3)(iii) of the Indian Administrative Service (Regulation of Seniority) Rules, 1987 as amended in 1989, (hereinafter referred to as the Seniority Rules). In course of time, the petitioner was promoted to Junior Administrative Grade in the post of Junior Secretary and the petitioner was expecting that he would be promoted to Senior Grade.
While the matter stood thus, the Central Government issued a notice dated 18.6.1997 to the petitioner wherein it was indicated that one Shri T.R. Gopalan was placed at S.No.1 in the Select List and the petitioner was placed at S.No.2 and since Shri T.R. Gopalan had been assigned 1989 as his year of allotment, the petitioner could not have been assigned 1986 as the year of allotment, and therefore, the year of allotment was required to be revised and accordingly the petitioner was asked to submit his representation, if any, in writing.
3. At that stage, the petitioner filed O.A.No.627 of 1997 before the Central Administrative Tribunal. The Tribunal observed that since only notice had been issued, it was open to the petitioner to make necessary representation raising all his contentions and O.A., had been filed at a pre-mature stage. Accordingly, the O.A. was disposed of with the observation that the present petitioner should make a representation.
4. Thereafter under the impugned order dated 19.1.1998, which was communicated by the State Government in G.O.Ms.No.239 dated 18.2.1998, the petitioner was informed that his year of allotment had been revised to 1989 by observing that the petitioner was entitled to weightage of only 5 years as Shri T.R. Gopalan, who had been selected along with the petitioner at Serial No.1, was only entitled to the year of allotment as 1989 and the petitioner could not be treated as senior to him. Aggrieved by the aforesaid communication dated 19.1.1998, the petitioner filed O.A.No.235 of 1998 before the Central Administrative Tribunal, which having been dismissed by the judgment dated 1.12.19 98, is being impugned in the present writ petition.
5. In the order dated 19.1.1998, it was observed that since the petitioner had been placed at S.No.2 in the Select List and Shri T.R. Gopalan had been placed at S.No.1 and the year of allotment of Shri T.R. Gopalan according to his length of service is 1989, the petitioner could not have been placed above him, and therefore, fixing 1986 as the year of allotment was incorrect and accordingly it was revised to 1 989. In the said order it was also observed that the decision of the Supreme Court in AIR 1994 SC 612 (UNION OF INDIA, etc., v. G.K. SANGAMESHWAR AND OTHERS) was not applicable as the said decision had been rendered on the basis of Indian Administrative Service (Regulation of Seniority) Rules, 1987 (hereinafter referred to as the Seniority Rules) prior to the amendment of Rules in February, 1989. Placing reliance upon proviso to Rule 3(3)(ii) of such Seniority Rules, which according to the Government was similar to Rule 3(3)(iii) as amended in 1989, the year of allotment of the petitioner could not have been earlier to that of Shri T.R. Gopalan, whose ye ar of allotment was 198 9. These reasonings given in the impugned order passed by the Central Government have been practically reiterated by the Central Administrative Tribunal while rejecting the Original Application.
6. The main contention of the petitioner is to the effect that the Government of India had correctly given weightage of 8 years taking into account 26 years of service rendered by the petitioner and on wrong interpretation of the Seniority Rules, the Government of India had subsequently revised the year of allotment as 1989. It is also contended by the petitioner that the Central Government did not have any power to review its earlier year to refix the order of allotment.
7. In order to appreciate the contentions raised, it is necessary to notice the relevant provisions relating to seniority as contained in the Seniority Rules, 1987. Such Rules have been framed in exercise of power conferred under Section 3(1) of the All India Services Act, 1951. Rule 3 relates to assignment of year of allotment. As per Rule 3(1), every officer shall be assigned a year of allotment in accordance with the provisions contained in the Rules. Rule 3(3), as it originally stood in 1987, is as follows :-
3(3) The year of allotment of an officer appointed to the Service after the commencement of these rules shall be as follows :-
(i) the year of allotment of a direct recruit officer shall be the year following the year in which the competitive examination was held:
Provided that if a direct recruit officer is permitted to join probationary training under rule 5(1) of the IAS (Probation) Rules, 1954, with direct recruit officers of a subsequent year of allotment, then he shall be assigned that subsequent year as the year of allotment.
(ii) the year of allotment of a promotee officer shall be the same as the year of allotment of the junior-most among the direct recruit officers who officiated continuously in a senior post from a date earlier to the date of appointment of the promotee officer to the Service.
(iii) The year of allotment of an officer appointed by selection may be determined ad hoc by the Central Government on the recommendation of the State Government concerned and in consultation with the Commission:
Provided that he shall not be allotted a year earlier than the year of allotment of a promotee officer already appointed to the Service and whose length of service in the State Civil Service is more than the length of continuous service of the former in connection with the affairs of the State. There was an amendment to Rule 3(3)(iii) in 1989 to the following effect :-
3(3) The year of allotment of an officer appointed to the Service after the commencement of these rules shall be as follows :-
(i) . . .
(ii) . . .
(iii) The year of allotment of an officer appointed by selection shall be determined in the following manner:-
(a) for the first 12 years of gazetted service, he shall be given a weightage of 4 years towards fixation of the year of allotment;
(b) he shall also be given a weightage of one year for every completed 3 years of service beyond the period of 12 years, referred to in sub-clause
(a), subject to a maximum weightage of 5 years. In this calculation, fractions are to be ignored.
(c) the weightage mentioned in sub-clause (b) shall be calculated with effect from the year in which the officer is appointed to the service:
Provided that he shall not become senior to another non State Civil Service Officer already appointed to the service.
Provided further that he shall not be allotted a year earlier than the year of allotment assigned to an officer already appointed to the service in accordance with sub-rule (1) of rule 8 of the Recruitment Rules, whose length of class I continuous service in the State Civil Service is equal to or more than the length of Class I continuous service of the former in connection with the affairs of the State. Rule 4 relates to inter-se seniority of the officer who are assigned the same year of allotment and it is to the following effect :-
4. Inter-se seniority of the officer who are assigned the same year of allotment.- The inter-se seniority of the officers appointed to the Service shall be in the following order and in each category the inter-se seniority shall be determined in the following manner:-
(i) . . .
(ii) . . .
(iii) officers appointed by selection shall be ranked inter-se in the order in which their names are arranged by the Commission for the purpose of appointment to the Service by selection.
8. A perusal of the aforesaid Rules makes it clear that Rule 3 relates to assignment of year of allotment of every officer recruited to Indian Administrative Service. Once an officer is assigned a year of allotment, it is obvious that such an officer would be junior to an officer whose year of allotment is earlier to his year of allotment. Similarly, he will be senior to an officer whose year of allotment is later than his year of allotment. Rule 4 would not at all be attracted for the purpose of finding out the seniority of the officers who are assigned different years of allotment.
9. For the purpose of assigning a year of allotment in respect of a person recruited by process of selection as contemplated under Rule 8(2) of the Recruitment Rules, the provisions contained in Rule 3(3)(iii) of the Seniority Rules would be attracted. The provisions contained in clauses (a) and (b) of Rule 3(3)(iii) lay down in simple terms how the weightage should be given. As per clause (a) of Rule 3(3)(iii), a person recruited by selection shall be given weightage of 4 years for the first 12 years of gazetted service. In other words, if a person has completed 10 years of servi ce, weightage as per clause (a) would be 4 years. Similarly if a person has completed 6 years of service, weightage would also be 4 years. As per clause (b) of Rule 3(3)(iii), a person would be given further weightage of one year for every completed 3 years of service beyond the period of 12 years. To illustrate, if a person has completed 14 years of service, he would be given 4 years of weightage in accordance with Rule 3(3)(iii)(a) and (b) together. However, if he has completed 15 years of service, he would be given additional weightage of one year. The two provisos included in Rule 3(3)(iii) relate to two different situations. The first proviso makes it clear that by virtue of the weightage given as per Clauses (a) and (b) , such persons shall not become senior to another non-State Civil Service Officer already appointed to the service. The expression already appointed to the service would mean that a person who is already appointed and not a person who is simultaneously appointed. The second proviso relates to allotment of officer already appointed in accordance with Rule 8(1) of the Recruitment Rules, that is to say, where the race is between an officer of State Civil Service promoted in accordance with Rule 8(1) and an officer of non-State Civil Service selected in accordance with Rule 8(2) of the Recruitment Rules. Applicability of the said proviso in the present case does not arise as the competition in the present case is not between a promotee under Rule 8(1) and a selectee under Rule 8(2) of the Recruitment Rules.
10. In the present case, the first respondent had initially assigned the year of allotment on the basis of length of service of both the persons who had been included in the same select list and who had been appointed by the very same notification. It is of course true that other person was placed higher in the select list which would only mean that he was considered more meritorious. However, since notification of appointment was of the same date, it cannot be said that the officer in S.No.1 was already appointed to the service at the time when the petitioner was appointed to the service. The impugned assignment of year of allotment is only on the basis that the other person who was placed at S.No.1 in the select list had been assigned 1989 as the year of allotment and the respondents have applied the first proviso. In our opinion, since both the persons had been appointed simultaneously by the very same notification, the first proviso to Rule 3(3)(iii) had no applicability. Once this position is accepted, the year of allotment of the petitioner must be taken to be 1986, as has been done initially, and to such a case, Rule 4(3) will have no applicability as such Rule 4 is applicable only when the officers are assigned the same year of allotment and not different years of allotment.
11. In the representation filed by the petitioner before the respondents, reference had been made to the decision of the Supreme Court reported in AIR 1994 SC 612 (cited above). The respondents have contended that the said decision is not applicable merely because such decision had been rendered on the basis of 1954 Seniority Rules which were similar to 1987 Rules, before such 1987 Seniority Rules were amended.
12. On a careful perusal of the said decision, we find that factually the person who was placed at third in the select list had been assigned the year of allotment earlier to the person who had been placed first in the select list. The Supreme Court ultimately upheld the year of allotment. The contention raised in the said decision by the person, who was first in the select list, to the effect that the person in third place in the select list should not have been assigned the year of allotment previous to the year of allotment of the person, who was placed first in the select list, had not been accepted.
13. It is of course true that the Rules have been amended in 1989. However, the amendment of the Rules in 1989 did not make any difference so far as this aspect is concerned and in our opinion the logic and the ratio of the Supreme Court decision should have been applied.
14. It is brought to our notice that subsequently Rule 3(3)(iii) has been amended as per G.S.R.736(E) dated 31.12.1997. The relevant portion of such amendment, which is specifically made applicable with effect from 1.1.1998, is to the following effect :-
In the Indian Administrative Service (Regulation of Seniority) Rules, 1987 (hereinafter referred to as the principal rules), in rule 3, in sub-rule (3), for clauses (ii) and (iii), the following clauses shall be substituted, namely:-
(ii) . . .
(iii) the year of allotment of an officer appointed by selection shall be determined with reference to the year in which the meeting of the Committee to make the selection to prepare the select list, on the basis of which he was appointed to the Service, was held and with regard to the continuous service rendered by him in a post equivalent to the post of Deputy Collector or a higher post, upto the 31st day of December of the year immediately before the year in which the meeting of the Committee to make the selection was held to prepare the select list on the basis of which he was appointed to the service, in the following manner :-
(a) for the service rendered by him upto twenty one years, he shall be given a weightage of one year for every completed three years of service, subject to a minimum of four years;
(b) he shall also be given a weightage of one year for every completed two years of service beyond the period of twenty one years, referred to in sub-clause (a), subject to a maximum of three years.
Explanation: For the purpose of calculation of the weightage under this clause, the fractions if any, shall be ignored:
Provided that he shall not be assigned a year of allotment earlier than the year of allotment assigned to an officer senior to him in that select list or appointed to the service on the basis of an earlier select list:
Provided further that he shall not be allotted a year earlier than the year of allotment assigned to an officer already appointed to the service in accordance with sub-rule (1) of rule 8 of the recruitment rules, whose length of Class I continuous service in the State Civil Service is equal to or more than the length of Class I continuous service of the former in connection with the affairs of the State.
Explanation:- The length of the relevant Class I continuous service in either case shall be with reference to the 31st day of December of the year immediately before the year in which the meeting of the Committee to make selection was held to prepare the select list on the basis of which appointments were made in the respective cases. The proviso to the effect that he shall not be assigned a year of allotment earlier than the year of allotment assigned to an officer senior to him in that select list introduced in Rule 3(3)(iii) for the first time with effect from 1.1.1998, is not relevant for the present case as the amendment is not retrospective.
15. For the aforesaid reasons, we are unable to accept the decision of the Central Administrative Tribunal and the first respondent and we direct that the year of allotment of the petitioner should be taken to be 1986. The orders passed by the first respondent and the Tribunal are accordingly quashed.
16. Accordingly, the writ petition is allowed. No costs. Consequently, WMP.No.29860 of 1998 is closed.
Index : Yes Internet: Yes dpk To
1. The Union of India, rep. by its Secretary, Ministry of Personnel, Public Grievances and Pension, New Delhi.
2. The State of Tamil Nadu, rep. by its Chief Secretary, Fort St. George, Chennai 9.
3. The Registrar, Central Administrative Tribunal, Madras Bench, Chennai 104.