Madras High Court
Tamil Nadu Dr.Ambedkar Agriculture vs The State Of Tamil Nadu on 22 August, 2013
Author: Chitra Venkataraman
Bench: Chitra Venkataraman, K.B.K.Vasuki
In the High Court of Judicature at Madras
Dated: 22.08.2013
Coram
The Honourable Mrs.JUSTICE CHITRA VENKATARAMAN
and
The Honourable Ms.JUSTICE K.B.K.VASUKI
Writ Appeal No.499 of 2011
& M.P.No.1 of 2011
Tamil Nadu Dr.Ambedkar Agriculture
Engineers Association
rep. by its President
Mr.K.Chandra Mohan
.... Appellant
Vs.
1. The State of Tamil Nadu
rep. by the Secretary to Government,
Agricultural Department,
Secretariat, Chennai 600 009.
2. The Chief Engineer,
Agricultural Department,
Chepauk, Chennai 600 005.
3. The Secretary,
Tamil Nadu Public Service Commission,
Government Estate,
Chennai 600 002.
4. Confederation of Agricultural Engineers,
rep. by its President,
B2, Officers Quarters,
Tamil Nadu Agricultural University,
Coimbatore 641 003.
.... Respondents
APPEAL under Clause 15 of the Letters Patent against the order dated 01.04.2010 made in W.P.No.4816 of 2008 on the file of this Court.
For Appellant : Mr.N.G.R.Prasad
for Mr.M.Muneeswaran
For Respondents: Mr.R.Ravichandran, AGP R1 & R2
Mr.N.S.Nandakumar R3
Mr.N.Subramanian R4
----------
J U D G M E N T
(Judgment of the Court was delivered by CHITRA VENKATARAMAN,J.) The present Writ Appeal is filed by the writ petitioner against the order of the learned single Judge dated 01.04.2010, wherein the petitioner sought for a Writ of Certiorarified Mandamus to quash the Notification in Advertisement No.151 by the third respondent, published in Tamil Daily, Dinakaran, Salem dated 31.1.2008 relating to the recruitment of Assistant Engineer (Agriculture Engineer), as arbitrary and against the Constitution of India and thereby direct the respondents to fill up the backlog vacancies allotted for the Scheduled Caste candidates in the second respondent Department.
2. The appellant herein is a registered Association, representing Scheduled Caste community candidates holding B.E.Degree in Engineering. These candidates have registered before the Employment Exchange. It is stated that in the year 1964, direct recruitment was made to the post of Agricultural Engineer by the third respondent, namely, the Tamil Nadu Public Service Commission from among the candidates possessing degree in Engineering. In order to carry out Agricultural Engineering work, in consultation with the Agriculture College, Tamil Nadu Agriculture University, a new degree course was started in Engineering to cater to the above-said needs in the year 1972. Thus, from 1977, B.E. Agricultural Engineering graduates were recruited as Assistant Engineers in Agriculture Engineering Department. It is stated that the State Agriculture Engineering Department was bifurcated from the Agricultural Department since 1981. Service Rules were accordingly framed under G.O.Ms.No.1987, Agri (AE-III) Department dated 28.08.1981 with effect from 01.02.1981. The qualification for recruitment to the post of Assistant Engineer (Agricultural Engineering) was prescribed as B.E.(Agriculture). The first set of candidates were recruited for the Agricultural Department during 1983-84. According to the Writ appellant, in the first list of selection of 49 Assistant Engineers, 9 reserved vacancies for the Scheduled Caste and Scheduled Tribe candidates remained unfilled on account of want of candidates. Apparently, there was no direct recruitment in the year 1985 and hence the vacancy continued and remained unfilled during this period. Considering the administrative exigency as well as the delay in making any appointment in accordance with the Rules, in the year 1985, the Government went in for appointment under Section 10(a)(i) of the Tamil Nadu State and Subordinate Service Rules.
3. It is a matter of record that these recruitments were subsequently regularised by the Government. Thus, under G.O.Ms.No.444, Agri (AB III) Department dated 13.06.1990, the Government regularised 157 temporary appointees, appointed upto 31.12.1985. Thereafterwards, again on 19.9.2005, under G.O.Ms.No.511, Agricultural (AA.III) Department, the Government regularised another 115 temporary appointees. A reading of G.O.Ms.No.444, Agri (AB III) Department dated 13.06.1990 shows that the Tamil Nadu Public Service Commission was requested to conduct a special examination, for the regularisation of the temporary Assistant Engineers (Agricultural Engineering), who were appointed on or after 01.01.1986. This is so even under G.O.Ms.No.511 dated 19.11.1995. Thus, accordingly all the temporary appointees were regularised. In the year 2008, the third respondent issued advertisements to fill up 36 posts of Assistant Engineers, out of which, 8 vacancies were earmarked for Scheduled Caste community (5 SC General and 3 SC women).
4. The grievance of the writ appellant is that without ascertaining and filling the actual number of vacancies that fell under the reserved category under the previous recruitment year, namely 1985, only 8 vacancies were earmarked for Scheduled Caste community. Thus, the appellants contend that without filling up and by ignoring the backlog of vacancies reserved for Scheduled Caste/Scheduled Tribe candidates, Notification dated 31.01.2008 is totally illegal and contrary to the constitutional mandate.
5. It is seen from the order in the Writ Petition as well as the documents filed before this Court that the third respondent filed a detailed counter stating that when Notification No.151 dated 31.1.2008 was issued for direct recruitment, there was no backlog of vacancies for SC/ST candidates; as such, the question of filling up of anything more than what had been notified did not arise. It is further seen from the order of the learned single Judge which is now under appeal before us that the third respondent took the stand that on account of the exigencies of administration, the second respondent made temporary appointments to the post of Assistant Engineer till 1988 without following the rule of reservation for appointment. Only thereafterwards, G.O.Ms.No.444, Agri (AB III) Department dated 13.06.1990 was passed and appointments were made. In the light of the stand taken by the respondents and there being no backlog of vacancies, learned single Judge considered that before 31.1.2008, appointment to the post of Assistant Engineers were made on four occasions two by way of direct recruitment and two by way of absorbing temporary employees.
6. Pointing out to the Government Orders as well as to Rule 22 of the Tamil Nadu State and Subordinate Service Rules, learned single Judge viewed that considering the amendment made, effective from 01.04.1989, the backlog of vacancies that was available prior to that date, even if there be any, would get lapsed. Thus, after 1.4.1989, the old vacancies, which remained unfilled could not be carried forward indefinitely. Learned single Judge further pointed out that when the appellants had not challenged the Government Orders under which the services of the temporary employees were absorbed as full time employees, after a lapse of 14 years, it was not open to the petitioners to contend that the unfilled backlog of vacancies meant for SC/ST candidates had to be filled. Learned single Judge further pointed out that Explanation to Rule 22 of the Tamil Nadu State and Subordinate Service Rules, as it existed after the amendment, would show that if the SC/ST candidates against the reserved vacancy were not available, non-filling of the post caused hardship to the administration; hence, exemption could be given from filling up the post. In the circumstances, learned single Judge rejected the prayer of the writ appellants to quash the proceedings. In so holding, learned single Judge referred to the decision reported in (1995) 3 SCC 532 (National Federation of S.B.I. V. Union of India) and held that the petitioner was not entitled to get the relief sought for in the Writ Petition. Aggrieved by this, the present appeal has been filed.
7. Learned counsel appearing for the appellant submitted that the appellant sought for details of the appointments made under the Right to Information Act. Going by the details furnished, it is evident that no direct recruitment having taking place after 1984, the backlog of vacancies for SC/ST candidates as on 16.4.1985 remained at 9. He submitted that it was no doubt true that the Government has the right to go for appointment under Section 10(a)(i) of the Tamil Nadu State and Subordinate Service Rules. But then, this, however, did not give the right to the Government to take them as regularly recruited persons in accordance with the Rules. In any event, the backlog of 9 vacancies remaining as it were and even under G.O.Ms.No.444, Agri (AB III) Department dated 13.06.1990 and G.O.Ms.No.511 Agriculture Department dated 19.9.1995, there were still vacancies for SC/ST at 10 and 2 respectively, the respondents committed a serious error in ignoring these vacancies, which the State has a constitutional obligation to fill up when they issued Notification in the year 2008. He submitted that with the backlog of vacancies remaining at 9 unfilled, the Government ought not to have gone for regularisation of temporary employees, thereby depriving the rights of those who could compete in open examination for getting appointment into the service. He pointed out that the Government had not come out with the facts on the actual number of vacancies for the reserved category which are necessary for the purpose of determining the vacancies as of today, so that, earnest efforts are taken by the Government for direct recruitment in accordance with the rules .
8. Learned counsel appearing for the appellant pointed out to the decision reported in (1996) 6 SCC 216 (Excise Supdt. Malkapatnam vs. K.B.N.Visweshwara Rao), wherein, this Court had come heavily on the Government taking recourse to appointment on temporary basis frequently and thereafter regularising the services of those who had secured employment under Rule 10(a)(i), which is contrary to the Rules . Referring to the decision reported in (2011) 2 SCC 105 (State of Uttar Pradesh and others V. Sangam Nath Pandey and others), learned counsel submitted that the posts which are reserved for SC/ST candidates are meant for appointment only through regular appointment in the reserved vacancies. Objecting strongly to the regularisation of those as back door entry appointment, he referred to the decision reported in (2012) 7 MLJ 513 (S.P.Pethel Raj and others V. V.E.Vairappan and others). He further pointed out that after the filing of Writ Petition, Government, vide Letter No.5492/AA3/2008-10 dated 21.4.2009, withdrew Notification No.151 dated 31.7.2008. Learned counsel submitted that even though the said Notification had been withdrawn, yet, the fact remains that the backlog of vacancies remained unfilled and if the Government is going on appointing persons as 10(a)(i) appointment, the legitimate expectation of persons who would otherwise be qualified for entry into Government service, would be totally wiped away. In the circumstances, he submitted that the learned single Judge had committed a serious error in rejecting the Writ Petition.
9. He further pointed out that in seeking a prayer for filling up of backlog of vacancies which had admittedly fallen due as on 1985, it was not necessary for the petitioner to question G.O.Ms.No.444, Agri (AB III) Department dated 13.06.1990 and G.O.Ms.No.511 Agricultural (AA.III) Department dated 19.9.2005. He submitted that his anxiety is more on the filling up of the reserved posts rather than on those who were regularised. Further, he pointed out that as per Rule 22 of the Tamil Nadu State and Subordinate Service Rules, till 01.04.1989, the backlog of vacancies were to be carried forward to the next recruitment. On the admitted position of fact that there was no direct recruitment after 1985, the backlog of 9 vacancies reserved for SC/ST candidates are to be treated as alive for further appointment. In any event, even going by Rule 22 as it stands after the amendment with effect from 01.04.1989, under G.O.Ms.No.337, P & AR dated 08.10.1992, the unfilled vacancies reserved for SC/ST candidates are to be carried forward to four consecutive years of recruitment, i.e., recruitment year plus three subsequent recruitment years. He pointed out that the proviso to Rule 22(d) must be given its full thrust while making any advertisement calling for application to the post of Junior Engineers. Thus, he submitted that the view of the learned single Judge on Rule 22 is totally contrary to the provisions available prior to and post 01.04.1989.
10. Learned Additional Government Pleader appearing for the first and second respondents reiterated the contentions taken in the Writ Petition. He, however, filed an additional counter affidavit on behalf of the first respondent giving the details on the direct recruitment as well as those who were regularised under various Government Orders pursuant to the orders of the Tribunal and submitted that in the regularisation made under G.O.Ms.No.444, Agri (AB III) Department dated 13.06.1990 and G.O.Ms.No.511 Agricultural (AA.III) Department dated 19.9.2005, the Government had followed the rule of reservation.
11. Since the counter filed did not deal with the backlog of 9 vacancies and lacked further particulars as to whether the regularisation was as per the roster and with reference to the backlog of vacancies already existing therein, this Court called upon the learned Additional Government Pleader to get the particulars as regards the reserved vacancies position right from 1985, whether the appointments which were regularised were in accordance with roster and took note of the existing vacancies under the reserved category and the number of vacancies remaining thereon. Accordingly, learned Additional Government Pleader produced before this Court, a letter from the Chief Engineer (Agricultural Engineering) No.LC.1/28530/2013 dated 21.8.2013, wherein he had given the total number of vacancies available under the head of reservation for SC/ST candidates.
12. A reading of the said letter shows that in the regular selection to the post of Assistant Engineer for 179 candidates made during the year 1982-84, there were 9 reserved vacancies remaining unfilled on account of non-availability of eligible SC/ST candidates. Thereafter, 157 Assistant Engineers, who were appointed temporarily upto 31.12.1985, were absorbed into the regular establishment under G.O.Ms.No.444 dated 13.6.1990. Even herein, 29 posts were reserved for SC/ST, out of which, 19 candidates were appointed under the category of SC/ST. Based on the orders of the Tamil Nadu Administrative Tribunal, 114 Assistant Engineers, who were appointed temporarily by following the rule of reservation on or after 1.1.1986, were regularised vide G.O.Ms.No.511 Agriculture Department dated 19.9.1995. Out of 114 posts, 21 posts were reserved under the SC/ST category. Even herein, two posts remained unfilled, which means, 19 candidates falling under the reserved category alone were appointed, leaving thereby, two vacancies. Hence, as of today, there are 21 backlog vacancies (9+10+2) under the reserved category in the post of Assistant Engineer. According to the letter, the said backlog would be communicated to the Government for intimating the same to the Tamil Nadu Public Service Commission while making the next direct recruitment. As and when need arises, the Tamil Nadu Public Service Commission will fill up the backlog vacancies, 21 in number, in the post of Assistant Engineer in future. Although the said letter practically answers the grievance of the petitioner, as considerable arguments has gone on the question as to whether temporary appointments made under Rule 10(a)(i) of the Tamil Nadu State and Subordinate Service Rules could be treated as direct recruitment, we deem it fit to answer this too.
13. For the purpose of working out the backlog of vacancies, learned counsel appearing for the fourth respondent, who is the Confederation of Agricultural Engineers, submitted that going by the definition under Rule 2(14) of the Tamil Nadu State and Subordinate Service Rules on "recruited direct", Article 323-A of the Constitution of India and the Tamil Nadu Public Service Commission Regulation 16 and 16(b), candidates who were originally appointed temporarily under Rule 10(a)(i), could nevertheless be taken in as recruited direct and the appointment, per se, could not be questioned by the appellant as back door entry. In this regard, he took us through the Rule in extenso and submitted that when the temporary appointments have been regularised in accordance with the Rules, it may not be possible for the petitioners/appellants to contend that the 9 backlog vacancies remained unfilled. Though this submission was made prior to the letter produced by the Government qualifying the existing vacancies, and he took a strong objection that it was only a letter, we do not accept this plea, noting that it comes from a responsible officer based on the record and we believe that the Government would stand by its commitment to fill up this post by direct recruitment. As far as the temporary appointment is concerned, a reading of the definition 'Recruited Direct' as given under Rule 2(14), reads as under:
"(14) A candidate is said to be "recruited direct" to a service, class, category or post when, in case his first appointment thereto has to be made in consultation with the Commission, on the date of its notification inviting applications for the recruitment and in any other case, at the time of his first appointment thereto, he is not in the service of the Government of India or the Government of a State Provided that for the purposes of this definition a person shall be deemed to be not in the service of the Government of India or the Government of a State--
(i) if a period of five years has not elapsed since his first appointment to a service of the Government of India or the Government of a State; or
(ii) if he belongs to the Scheduled Castes, Scheduled Tribes or Backward Classes. "
14. Rule 10 of the Tamil Nadu State and Subordinate Service Rules, deals with temporary appointments. Sub-rule (a)(i) states that the Government has the authority to fill up vacancies arising through temporary appointment where the necessity arises owing to the emergency and if public interest demands such filling up of vacancy by temporary appointment, the Rule contemplates that the appointment of a person to the post must necessarily possess the qualification. Keeping in the background the above permissible mode of recruitment under the Rules, we agree with the submissions made by the learned counsel appearing for the fourth respondent that the expression 'in any other case' must be given a meaningful interpretation to include an appointment under Rule 10(a)(i) for the purpose of treating it as recruited direct. Thus, with the regularisation done by the Government in accordance with the Rules and the candidates having undergone special test conducted by the Tamil Nadu Public Service Commission, the claim of those temporary appointments regularised under the Government Orders, have to be treated as those "recruited direct".
15. Learned counsel further submitted that going by the phrase 'in any other case' appearing in the above definition, and by Rule 3 of Part II of Tamil Nadu Public Service Commission Regulations, the amendment made to Rule 22 cannot be held against the temporary employees who are to be treated as direct recruit only. In this connection, he also took us through The Tamil Nadu Public Service Commission Regulations made in exercise of the powers conferred by Article 318 and the proviso to Article 320(3) of the Constitution of India. Part III lists the matters in respect of which it shall not be necessary for the Commission to be consulted. Sub-Clause (b) of Regulation 16 gives the list, as given under Annexure 1A, that in the case of posts specified in Annexure I-A to the Regulations and other posts in respect of which Government had directed, or may, with the concurrence of the Commission, direct that appointment may be made without reference to the Commission.
16. Part II of the Tamil Nadu State and Subordinate Service Rules, prescribes the General Rules applicable to all State and Subordinate Services and to the holders of all posts, whether temporary or permanent. Rule 3 states "any Rule continued by Article 313 of the Constitution of India or made under the proviso to Article 309 of that Constitution in respect of any service, class or category there of shall be applicable to all persons holding posts intended to be held by members of that service, class or category on the date on which such rule was made". The rule contains the proviso according to which unless a contrary intention is expressly indicated therein, nothing in any such Rule shall operate to deprive any such person of any right or privilege to which he is entitled by or under any rule or applicable to him prior to the making of such rule provided further that no such rule shall be applicable to Candidates who had been approved for appointment to any such service, class or category by the Commission or by any other authority competent in that behalf prior to the making of such rule or who had applied for such approval in response to any advertisement inviting applications, published by the Commission or any other authority competent in that behalf prior to the making of such rule.
17. Rule 22 dealing with Reservation contains provision for dealing with a situation when the reserved post for any particular recruitment year goes unfilled for want of candidates available for appointment Prior to 01.04.1989; Sub-rule (d) states that if a qualified candidate belonging to any class of Scheduled Caste or Scheduled Tribe is not available for selection for appointment by recruitment by transfer or by promotion in the turns allotted to them in the cycle, the turn reserved shall not lapse and the unfilled vacancies shall be carried over to the next recruitment and the selection for appointment to that post shall be made first for the carried forward turn and then the normal rotation shall be followed. After the amendment, the next recruitment is, however, substituted by "year of recruitment plus three subsequent recruitment years". If no candidates are available even thereafter, the vacancies shall be reserved by obtaining the orders of the Government before filling them up by candidates in the next turn in the order of rotation.
18. Thus, going by Rule 22 of the Tamil Nadu State and Subordinate Service Rules, the fact remains that the position prior to 01.04.1989 and the position on and from the date of amendment, namely, 01.04.1989, will have to be understood in such a manner that the backlog of 9 vacancies available prior to 01.04.1989 and after 1989, which are to be considered for direct recruitment, have to be absorbed in terms of Rule 22 sub-clause (d), which means, the vacancies which are available in a particular recruitment year including the backlog of vacancies, must subscribe to the conditions specified in the proviso to Rule 22(d) of the Tamil Nadu State and Subordinate Service Rules.
19. Although this aspect does not, in any manner, affect the appellant herein and the vacancy position, yet it is clear that in regularising the temporary employees, the Government observed the reservation in absolute terms, as is evident from the letter produced before the Court today from the Chief Engineer dated 21.8.2013 that under G.O.Ms.No.444, Agri (AB III) Department dated 13.06.1990, G.O.Ms.No.511 Agriculture Department dated 19.9.1995, and the original 9 unfilled vacancies arising as early as 1984 remained unfilled throughout. Thus, read in the context of Rule 22 of the Tamil Nadu State and Subordinate Service Rules, there being no direct recruit after 1985 in contra distinction to appointment made under Rule 10 (a)(i), falling within the meaning of "in any other case", appearing in the definition of "Recruited Direct " in Rule 2(14) of the Tamil Nadu State and Subordinate Service Rules, there remains as of today 21 temporary vacancies in the post of Assistant Engineer to be filled up through the reserved category.
20. In the light of the above, we agree with the submissions made by the learned counsel appearing for the appellant herein that the Government has the constitutional obligation to take note of these 21 backlog vacancies reserved for SC/ST candidates while making appointment in accordance with the provisions of the Rules.
21. Learned counsel appearing for the appellant made serious objection as to the manner of filling up of vacancies by taking recourse to Rule 10(a)(i), that only those who are registered before the Employment Exchange are considered; that candidates otherwise qualified are not considered solely by reason of their non-registration, which means, the legitimate expectation of the candidates possessing qualification to participate in the selection process through advertisement and qualifying tests is lost. We do not think that the grievance projected by the appellant can be lightly rejected, more so in the context of the decision of the Apex Court and the Rules available therein for recruiting persons to the post of Assistant Engineers or to any other post in the service through the legally accepted method by calling for applications.
22. In the circumstances, while keeping Rule 10(a)(i) as an exception warranting its exercise only in cases of absolute necessity warranted by public interests and on the circumstances given under the said Rule, we hope that the legitimate grievance of persons like those in this Association would be taken care of by the State; that the appointments primarily be made through direct recruitment. We make it clear that any future appointment to the post of Assistant Engineer must necessarily take into account the backlog vacancies, as has been in the letter dated 21.8.2013 by the Chief Engineer.
23. The Writ Appeal is allowed and the order of the learned single Judge stands set aside. No costs. Consequently, M.P.No.1 of 2011 is closed.
Index : Yes/No (C.V.,J) (K.B.K.V.,J)
Internet:Yes/No 22.08.2013
sl
To
1. The Secretary to Government,
The State of Tamil Nadu
Agricultural Department,
Secretariat, Chennai 600 009.
2. The Chief Engineer,
Agricultural Department,
Chepauk, Chennai 600 005.
3. The Secretary,
Tamil Nadu Public Service Commission,
Government Estate,
Chennai 600 002.
CHITRA VENKATARAMAN,J.
AND
K.B.K.VASUKI,J.
Sl
Writ Appeal No.499 of 2011
& M.P.No.1 of 2011
22.08.2013