Madras High Court
Unknown vs The State Of Tamil Nadu on 13 September, 2021
W.P.Nos.35788 and 35800 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on:26.06.2023 Delivered on: 10.11.2023
CORAM:
THE HONOURABLE MR.JUSTICE P.B.BALAJI
W.P.Nos.35788 and 35800 of 2019
&
W.M.P.Nos.36682, 36690 of 2019, 17519 and
17466 of 2020 and 9067 and 9086 of 2023
W.P.No.35788 of 2019
1.D.Kamalakkannan
2.V.Kumar
3.M.Gandhi
4.M.Sakthi
5.C.Krishnamoorthi
6.M.Silambarasan
7.A.Hady Jospehine Sen
8.M.Senthilkumar
9.M.Selvi
10.M.Dhivanmohideenkhan
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11.R.Kandasamy
12.T.Pechimuthu
13.R.Deepa
14.I.Selvarani
15.T.Palani
16.G.Uma
17.M.Geetha
18.A.Chinnannan
19.Reeta Shree
20.S.Susikaran Bernardshaw ... Petitioners
Vs.
1.The State of Tamil Nadu
rep by its Health Secretary/Principal Secretary to Government
Fort St.George, Secretariat
Chennai-9
2.The Secretary to Government
Personnel and Administrative Reforms Department
Government of Tamil Nadu
Secretariat, Chennai-9
3.Tamil Nadu Public Service Commission
Rep by its Secretary
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TNPSC toad, V.O.C. Nagar,
Park Town, Chennai-600 003
4. The Director of Medical and Rural Health Services
Medical Department, DMS campus
Teynampet, Chennai-6
5.Santhi Bala
6.M.Jenbarani
7.M.Vairamuthu
8.A.Devasahayam
9.S.Mahendra Singh
10.R.Venkatesan
11.A.Sakthi
12.P.Jayaraj
13.B.Heymaahgandhi
14.K.Shanthi
15.S.Latha ... Respondents
(R6 to 15 impleaded vide order
dated 13.09.2021 made in
W.M.P.No.20764/2021 in W.P.No.35788/2019)
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
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praying to issue a Writ of Certiorarified mandamus calling for the records in
connection with the impugned G.O.(Ms)No.218 dated 09.09.2016 issued by
1st respondent H & FW (AA2) Dept and the consequential proceedings issued
by the 4th respondent viz., Ref. No.78102/E2/1/2017 dated 26.12.2017
resulting and quash the same in so far as regularizing the service of 5 th
respondent with retrospective effect to the detriment of the petitioners and
direct the respondents to treat the petitioners as seniors to the 5th respondent
for all purposes including promotion and consequential benefits.
W.P.No.35800 of 2019
1.D.Kamalakkannan
2.V.Kumar
3.M.Gandhi
4.M.Sakthi
5.C.Krishnamoorthi
6.M.Silambarasan
7.A.Hady Jospehine Sen
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W.P.Nos.35788 and 35800 of 2019
8.M.Senthilkumar
9.M.Selvi
10.M.Dhivanmohideenkhan
11.R.Kandasamy
12.T.Pechimuthu
13.R.Deepa
14.I.Selvarani
15.T.Palani
16.G.Uma
17.M.Geetha
18.A.Chinnannan
19.Reeta Shree
20.S.Susikaran Bernardshaw ... Petitioners
Vs.
1.The State of Tamil Nadu
rep by its Health Secretary/Principal Secretary to Government
Fort St.George, Secretariat
Chennai-9
2.The Secretary to Government
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W.P.Nos.35788 and 35800 of 2019
Personnel and Administrative Reforms Department
Government of Tamil Nadu
Secretariat, Chennai-9.
3.Tamil Nadu Public Service Commission
Rep by its Secretary
TNPSC toad, V.O.C. Nagar,
Park Town, Chennai-600 003
4. The Director of Medical and Rural Health Services
Medical Department, DMS campus
Teynampet, Chennai-6
5.R.Mariajanaki
6.S.Subramani
7.M.Sivakumar
8.P.Narayanasamy
9.M.K.Lakshmi Narayanan
10. M.Tamilvelan
11.A.Vigneswari
12.P.Suganthi
13.N.Jula
14.M.Chitra
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W.P.Nos.35788 and 35800 of 2019
15.J.Uma Maheshwari
16.D.Kavitha
17.S.Senthil Lakshmi
18.R.Surya
19.K.Selvarani
20.R.Mohana priya
21. V.Seetha
22.G.Vasanthi
23.R.Shanthi
24.G.Shanmugavalli
25.S.Maheswari
26.Padmavijila
27.D.Vasanthi
28.R.Santhameena
29.K.Sundaraselvi
30.T.Lakshmi
31.T.Tamilarasi
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32.M.Ruthmary
33.C.Quil
34.K.Jansirani
35.S.Alamelu
36.S.Chithra
37.S.Bagavathi
38.T.S.Kavitharani
39.G.Aanandhavalli
40.J.Umamaheswari
41.K.Kalaiarasi
42.D.Malarvizhi
43.C.Indira
44.G.K.Priya
45.S.Muthumariyammal
46.M.Selvi Suguna
47.A.Auxilia Mary
48.C.Deivanai
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49.G.Ponpandi
50.M.Ahila Mary
51.M.Veluthai
52.R.Velllaiyammal
53.R.Jeyavinayaki
54.K.Shanthi
55.A.Anisfathima
56.K.Radhalakshmi
57.J.Manjula
58.U.Shoba
59.V.Koeleswari
60. Usha Nandhini Devi ... Respondents
(R6 to 60 impleaded vide order
dated 13.09.2021 made in
W.M.P.No.20096/2021 in W.P.No.35800/2019)
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified mandamus calling for the records in
connection with the impugned proceedings viz bearing Re.47155/E2/1/2014
dated 20.02.2015 issued by the 4th respondent and quash the same in so far as
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regularizing the service of 5th respondent with retrospective effect to the
detriment of the petitioners and direct the respondents to treat the petitioners
as seniors to the 5th respondent for all purposes including promotion and
consequential benefits.
For Petitioners : Mr.V.Prakash, Senior Counsel
for
Mr.K.Krishnamoorthy in both W.Ps.
For Respondents : Mr.S.Silambanan, AAG-II
assisted by M.Babu Barkeez, G.A for R1, 2,
and 4 in both W.Ps
Mr.M.Loganathan, SC for R3
in W.P.No.35788 of 2019
Mr.G.Hema, SC (TNPSC) for R3 in
W.P.No.35800 of 2019
Mr.G.Sankaran, Senior Counsel
for
Mr.S.Nedunchezhian for R6 to 15 in
W.P.No.35788 of 2019.
Mr.G.Arul Murugan for R6 to 60
in W.P.No.35800 of 2019.
COMMON ORDER
W.P.No.35788 of 2019:
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https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 The petitioners herein are all directly recruited Assistants in the Directorate of Medical and Rural Health Services, Medical department. It is their common case that they were appointed in the year 2012 against the substantive vacancies that arose during the year 2009-2011, duly notified by Tamil Nadu Public Service Commission (TNPSC) on 31.12.2010.
2. The petitioners have completed their probation on satisfactory basis. However, unfortunately the issuance of an order declaring their probation was wantonly delayed, with ulterior motive of accommodating ad-hoc and fortuitous appointees. Aggrieved by G.O.(Ms).No.218 dated 09.09.2016 and consequential proceedings of the Director of Medical and Rural Health Services, the Writ Petitions have been filed challenging ad-hoc promotions to the post of Assistants being regularised with undue seniority benefits, thereby affecting the accrued rights of service benefits of all the petitioners.
3. The grounds of challenge are as follows:
(i) The impugned G.O violates Art.309 of the Constitution of India; 11/47
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(ii) R.23 of the Tamil Nadu State and Sub-ordinate Service Rules governing probation and appointment to service has been ignored;
(iii) impugned G.O violates R.35(aa) and 23 of the Tamil Nadu State and Sub-ordinate Service Rules;
(iv) temporary Assistants were appointed otherwise than in accordance with law;
(v) recruitment of the Writ Petitioners would fall within the definition of 3(r) of the Tamilnadu Government Servants (Conditions of Service) Act and thereby their seniority would be traceable to the date of notification viz., 31.12.2010;
(vi) the very purpose of direct recruitment through the TNPSC stood defeated by the impugned G.O;
(vii) regularisation of ad-hoc appointees promoted under R.39(a) of the General Rules is against the letter and spirit of Service Rules, amounting to backdoor entry;
(viii) the impugned G.O has been passed in violation of statutory rules and impermissible in law;
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(ix) the impugned G.O is also violative of Art.320(4) of the Constitution of India and when the petitioners have completed their probation period even as early as on 12.12.2014, for the fault of non issuance of orders declaring their probation immediately there upon, with ulterior motives of accommodating other persons through back door entry, it snatched away the accrued rights of the Writ Petitioners. Putting forth these main grounds amongst several other grounds, G.O.(Ms)No.218 dated 09.09.2016 and the consequential proceedings of the Director of Medical and Rural Health Services are under challenge under the present Writ Petition.
4. W.P.No.35800 of 2019 has been filed seeking issuance of a Certiorarified Mandamus to quash the proceedings dated 20.01.2015 on the file of the Director of Medical and Rural Health Services, Medical Department, Chennai regularising services of the private respondents and to treat the petitioners as seniors for all purposes, including promotion and consequential benefits. In the affidavit filed in support of the said Writ Petition, the petitioners apart from setting out the same facts already narrated 13/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 above in the other W.P.No.35788 of 2019, it is also stated in the affidavit filed in support of this Writ Petition that the Director of Medical and Rural Health Services, Medical Department has regularised the services of ad-hoc promotees to the post of Assistants which has resulted in undue seniority benefit, affecting the accrued rights of the Writ Petitioners. The impugned proceedings in this Writ Petition are challenged on the ground of being violative of Art.309 of the Constitution of India; the impugned proceedings stood vitiated for failure to obtain approval of TNPSC; citing pendency of a Writ Petition on the ground that direct recruits through TNPSC cannot be appointed under R.10(a) (i) of the General Rule and the order of regularization being issued after one month after the impugned order of regularization of ad-hoc promotees amounted to colorable exercise of power, with ulterior motives; the Writ Petitioners were eligible to be promoted immediately after their probation got declared in terms of G.O.MS.No.57 issued by P&AR way back in the year 2012.
5. As the core issue to be decided in both the Writ Petitions are one 14/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 and the same, they have been tagged and heard together.
6. Heard Mr.V.Prakash, learned Senior Counsel for Mr.K.Krishnamoorthy for the petitioners in both the Writ Petitions. Mr.S.Silambannan, learned AAG-II assited by Mr.M.Babu Barkeez, learned Government appearing for the respondents 1,2 and 4 in both the Writ Petitions, Mr.M.Loganathan, Standing counsel for R3 in W.P.No.35788 of 2019, Ms.G.Hema, Standing counsel for R3 in W.P.No.35800 of 2019 and MR.G.Sankaran, learned Senior Counsel for Mr.S.Nedunchezhian for R6 to 15 in W.P.No.35788 of 2019 and Mr.G.Arul Murugan, learned counsel for the respondents 6 to 60 in W.P.No.35800 of 2019.
7. To better appreciate the point that requires determination, brief and necessary facts are set out hereunder:
There are four categories, which are involved in the present litigation viz;
(i) MCI candidates being Junior Assistants or Steno Typist Grade III 15/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 being promoted as Assistants;
(ii) Candidates appearing through special competitive exam Group IV, TNPSC being promoted as Assistants;
(iii) Group IV TNPSC Typist promoted as Assistants and
(iv) directly recruited Assistants through TNPSC Group II, The Writ Petitioners herein fall under this fourth category of Directly recruited Assistants.
8. It is not a disputed fact that a notification calling for filling up the posts of Assistants through direct recruitment was issued on 31.12.2010 and the examination was conducted on 30.07.2011 and the list of successful candidates was published on 23.11.2012. Their appointment was made on 11.12.2012. The petitioners completed their probation on 10.12.2014 A.N.
9. In so far as MCI candidates, they were appointed in the year 2005 on consolidated pay through Employment Exchange, following communal rotation. They were brought into regular time scale of pay as per 16/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 G.O.(Ms)No.144 dated 30.04.2007 and in and by impugned G.O.(Ms)No.218 dated 09.09.2016, their services were regularised with retrospective effect viz., 01.04.2007.
10. In so far as the Junior Assistants who appeared for the Special Competitive Exam and got promoted as Assistants, they were appointed on consolidated pay during the strike period in July 2003. These candidates have written their exam on 17.02.2008 and appointed as Junior Assistants on 22.06.2009 and subsequently giving retrospective effect, they were promoted as Assistants, being found fully qualified on 15.03.2012. It is also stated that these promoted candidates have joined service on 25.10.2012 to the post of Assistants.
11. In so far as the third category being typists who were promoted as Assistants, notification was issued on 15.11.2007 and the candidates appeared for the examination on 27.01.2008 and they were appointed as Typists on 04.08.2009 and similar to the candidates who got promoted from Junior Assistants, these Typists were also found qualified on the crucial date, 17/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 viz., 15.03.2012 and with retrospective effect, they were appointed as Assistants and they joined duty as Assistants on 25.10.2012.
12. Having seen the four different modes of recruitment to the post of Assistants, the short question that is required to be answered is as to whether the Writ Petitioners have any rights accrued to them pursuant to their being appointed directly to the post of Assistants, after having cleared the examination on 30.07.2011, in furtherance of the notification dated 31.12.2010.
13. Learned Senior Counsel appearing for the Writ Petitioners Mr.V.Prakash would invite my attention to the very G.O.(Ms) No. 218 dated 09.09.2016, which is under challenge and state that temporary posts in the category of Junior Assistants/Steno Typist Grade II and Store Keeper cum Clerk are said to have been sanctioned on consolidated pay/outsource basis 18/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 and it is to be borne in mind that in order to meet the norms of Medical Council of India, G.O.(Ms).No.144 dated 30.04.2007 was brought about to bring them into regular time scale of pay with effect from 01.04.2007.
14. Citing that the posts were created to meet out the norms of Medical Council of India, services of the recruited candidates was sought to be regularised. In response to the said suggestion of the Director of Medical Education, the TNPSC has stated that special qualifying examination can be conducted before appointing and regularising the services of such persons. In and by the impugned G.O, the Government after examining the view of the TNPSC, changed the nomenclature of the the posts of Store Keeper and Store Keeper cum Clerk as Junior Assistant in order to enable regularization of their services by conducting special qualifying examination. The TNPSC was requested to conduct the said examination and to send the list of selected candidates based on merit, assigning seniority, by following the communal rotation, as per rules in force. It is in exercise of powers U/s. 48 of Tamil Nadu State and Sub-ordinate Service Rules, the Government has relaxed R.2 19/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 of Special Rule for Tamil Nadu Ministerial Service and Regulation 17(3) of TNPSC Regulations, 1954 and thereby appointed Junior Assistants and Steno Typists Grade III as Assistants and regularised their services in their respective categories of Junior Assistant and Steno Typist Grade III with retrospective effect viz., 01.04.2007. The learned Senior counsel for the petitioners would also point out the tenor of the proceedings dated 26.12.2007 where in the said order, it is mentioned that pursuant to the inclusion of the names in the Assistant Panel, U/s. 47(1) of the Tamilnadu Government Servants (Conditions of Service) Act 2016, the Junior Assistants are temporarily promoted as Assistants and that their pay scale was also only notionally fixed. Learned Senior counsel would strenuously contend that the entire exercise undertaken by the statutory respondents was in gross violation of Art.309 and 324 of the Constitution of India and it amounted to clear colorable exercise of power, since the rights of directly recruited candidates have been taken away for accommodating back door entry of candidates from the feeder category viz., Junior Assistant as well as Steno Typist Grade III. Learned Senior Counsel would also elaborate on the various grounds raised 20/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 by the Writ Petitioners in the affidavits filed in support of the two Writ Petitions.
15. Per contra, Mr.S.Silambannan, learned AAG-II assisted by Mr.M.Babu Barkeeez, learned Government Advocate would state that impugned G.O.(Ms).No.218 does not suffer from any infirmity whatsoever and the State has the Power under the Statute to give such retrospective effect and considered decision was taken in mind the requirements of the post only.
16. Learned Senior counsel Mr.S.Silambannan, AAG-II would further submit that admittedly there was a ban of recruitment during the period 2001- 2006 and there was no recruitment at all. In order to over come the difficulties that cropped up because of the same, G.O.(Ms)No. 144, dated 30.04.2007 was issued to appoint Junior Assistants and Steno Typist Grade III on consolidated pay. Thereafter, such persons were brought into regular time scale of pay. Such persons were brought into regular time scale of pay in and by G.O.(Ms) No.144 dated 30.04.2007, with effect from 21/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 01.04.2007. The Government in order to regularise the services of such persons, issued G.O.Ms.No.218 dated 09.09.2016 and regularised the services of the candidates who had been employed on consolidated pay, with retrospective effect. The reason for such retrospective effect is stated to be 'administrative'.
17. Mr.G.Sankaran, learned Senior Counsel appearing for the respondents 6 to 15 in W.P.No.35788/2019 would support the action of the State in issuing G.O.(Ms)No.218 and contend that the State had power under R.48 of the Tamil Nadu State and Sub-ordinate Service Rules. The said power has been rightly exercised in favour of the Junior Assistants and Steno Typists Grade III, giving retrospective effect, considering that all these candidates had been appointed only from the list provided by the Employment Exchange and also by following communal rotation. He would also state that no motives can be attributed to such permissible action taken by the statutory respondents.
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18. Mr.Arul Murugan, learned counsel appearing for the respondents 6 to 60 in W.P.No.35800 of 2019 would also support the cause of said G.O.(Ms).No.218 issued by the State and would contend that the petitioners came to be appointed only after issuance of G.O.(Ms)No.199 dated 16.07.2010 and followed by G.O.(Ms)No.57 dated 17.04.2012 and in such circumstances, they cannot claim seniority or any accrued right over and above the Junior Assistants and the Steno Typist Grade III who have been promoted from the feeder category much earlier to G.O.Ms.No.57 dated 17.04.2012.
19. I have also heard Mrs.G.Hema, learned Standing counsel appearing for Tamil Nadu Public Service Commission.
20. Having heard the learned Senior counsel and also the other counsel appearing for the private respondents and the TNPSC and having paid my careful consideration to their respective submissions and also on going through the materials placed before me by way of typedsets and reliance 23/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 placed on by the respective Senior counsel, to various judicial pronouncements of the Hon'ble Supreme Court as well as this Court, I proceed to deal with the key point for determination.
21. R.35(aa) of the Tamil Nadu Sate and Sub-ordinate Service Rules would assume relevance and the same is extracted for easy reference.
“ R.35(aa) The seniority of a person in a service, class, category or grade shall, where the normal method of recruitment to that service, class, category or grade is by more than one method of recruitment, unless the individual has been reduced to a lower rank as a punishment, be determined with reference to the date on which he is appointed to the services, class, category or grade;
Provided that where the junior appointed by a particular method or recruitment happens to be appointed to a service, class, category or grade, earlier than the senior appointed by the same method of recruitment, the senior shall be deemed to have been appointed to the service, class, category or grade on the same day on which the junior was so appointed:
Provided further that the benefit of the above proviso shall be available to the senior only for the purpose of fixing inter-se-seniority:
Provided also that where persons appointed by more than one method of recruitment are appointed or deemed to have been appointed to the service, class, category or grade on the same day, 24/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 their inter-se-seniority shall be decided with reference to their age.”
22. A reading of the said Rule shows that a combined seniority list is required to be prepared when there are more than one method of recruitment. However, in the present case, admittedly no such combined seniority list has been prepared in line with R.35(aa) of the Tamil Nadu State and Sub-ordinate Service Rules. The relevant rule regarding probation viz., R.32(a) of Special Rules for Tamil Nadu Ministerial Service is also relevant and the same is extracted herein:
“ Every person appointed to a category by direct recruitment shall be on probation for a total period of two years of duly within a continunous period of three years”.
23. In terms of Rule 39 of Tamil Nadu State and Sub-ordinate Service Rules, temporary promotions can be given effect in public interest owing to an emergency that has arisen to fill vacancies immediately in a post borne on the cadre of a higher category in a service or class by taking request to promotion from the lower category when it would cause undue delay in making such promotion in accordance with the rules. 25/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019
24. As in terms of 39(f)(i) of the said rule any person who is promoted in exercise of option available under 39(a)(i) would commence his probation on the date of such temporary promotion or any subsequent date which the appointment authority may determine.
25. 47(i) of the Tamil Nadu Government Servants (Condition of Service) 2016, stipulates that the appointing authority is entitled to temporarily promote any person possessing prescribed qualifications, otherwise than accordance with the provisions of the Act, wherever it was necessary in public interest, owing to any emergency that has arisen to fill the vacancies immediately.
26. Mr.Silambannan, learned Senior counsel AAG-II as well as the learned Senior counsel Mr.G.Sankaran, and the other counsel appearing for the respondents would fall back on these provisions to fortify the contentions that the State had all the power to issue promotions to meet emergent 26/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 situations.
27. I am conscious of the fact that pay to an employee has no bearing or relevance to seniority. Therefore, at the very outset the argument of the counsel for the respondents that once the temporary appointees were appointed on consolidated pay, they would automatically become eligible for seniority cannot be countenanced. The Tamil Nadu Public Service Commission has conducted written examination and selected the Writ Petitioners, finding them fit to be directly appointed to the post of Assistants. However, contrary to this method of recruitment to the post of Assistants, the candidates who were appointed on ad-hoc basis entered into service in the feeder category and who have not gone through the rigours of written examination and merely on the basis of being in service as Junior Assistants or Steno Typist Grade III, they have been found eligible to the post of Assistants. At best this process of recruitment can only be termed as a back door entry in contrast to the regular direct recruitment process. There is no 27/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 doubt in my mind that the Government has the power to appoint candidates through feeder category which is an accepted mode of recruitment. However, will such power of the State enable them to give retrospective effect to candidates promoted from the feeder category over regularly appointed candidates viz., direct recruits is a question that needs to be addressed. Moreover, post of Assistant is certainly a selection post and the post have to be filled up based on merit and suitability of the candidate which requires a proper evaluation to be carried out before giving promotion to the candidates, to the post of Assistants. In this context, falling back on 35(aa) of the Tamil Nadu State and Sub-ordinate Service Rules, the said rule does not also suggest that this special mode of recruitment can be given retrospective effect. In the absence of the Rule spelling out that there can be retrospective effect given to such post, I am unable to countenance the action of the statutory respondents in giving retrospective effect to the candidates who have been promoted from Junior Assistants/Steno Typists Grade III (MCI candidates), Junior Assistants Group IV candidates through (Special Competitive exams) and Group IV TNPSC Typist candidates. 28/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019
28. R.35(aa) is only an exception to the General Rule and it is only an enabling provision to fill up vacancies by promoting candidates from lower posts to meet emergency situations and that too, where it is likely to incur loss of time in adopting to the regular course of appointment. Unfortunately, in the present case though a notification was issued on 31.12.2010 for filling up the vacancies to the post of Assistants and examination was also conducted on 30.07.2011, I am unable to see any justification for the State to issue G.O.(Ms)No.218 on 09.09.2016, that too giving retrospective effect to candidates from the posts of Junior Assistants/Steno Typist Grade III (MCI), Junior Assistants through Special Competitive Exams and Typists Group IV, TNPSC. On the date of the said G.O viz., 09.09.2016, the exercise of filling up the vacant post of Assistants have already been duly undertaken by a notification dated 31.12.2010, followed up with a competitive exam on 31.07.2011. In such circumstances, the authorities were certainly not justified in firstly, falling back on R.35(aa) to promote persons from lower posts by adopting other than a normal course and secondly, by giving 29/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 retrospective effect to such promotions. The said exercise therefore, clearly militates against the very phraseology employed in R.35(aa) which contemplates such employment only “to meet emergency situations”. In the case on hand, there was absolutely no emergency situations or likelihood of the time factor causing serious prejudice at all, since the Writ Petitioners had already been selected through competitive examination held as early as on 30.07.2011. There was absolutely no rhyme or reason for the State to issue G.O.(Ms).No.218, almost close to five years after having held examination and found the Writ Petitioners eligible to the post of Assistants.
29. Moreover, it is also seen that though the Writ Petitioners had cleared the competitive exam held even in July 2011, the list was prepared only on 23.11.2012 and their appointment was also deferred till December 2012 and prior to the same the candidates who were promoted as Assistants from Junior Assistants Group IV TNPSC and Typists Group IV TNPSC were allowed to join duty as Assistants on 25.10.2012. Therefore, the contention of the Writ Petitioners that the appointment of Writ Petitioners was delayed 30/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 with ulterior motive of accommodating the private respondents cannot be lightly brushed aside.
“ 2(o). Appointment to service - a person is said to be appointed to a service when he discharges for the first time the duties of a post borne on the cadre of such services or commences the probation, instruction or training prescribed for members thereof.
Even the said definition of 'appointed to service' would take into consideration the date on which the person commences his probation. Therefore, the argument of the respondents that the petitioners completed their probation only in December 2014 and they are not eligible for promotion with seniority as against private respondents is not in line with the statutory provisions. A direct recruitee therefore takes his seniority right from the date on which he starts discharging the duty of the post borne on such cadre in contrast to a temporary appointee who is appointed on ad-hoc basis or to a fortuitous vacancy who can claim seniority only from the date of his regular appointment.
30. The Hon'ble Supreme Court in Direct Recruit Class II 31/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 Engineering Officers Association Vs. State of Maharashtra and Ors, reported in (1990) 2 SCC 715 has held that appointment made in accordance with rules is a condition precedent to count seniority and temporary or ad-hoc or fortuitous appointments or appointments not in accordance with rules and any amount of temporary service cannot be counted towards seniority.
31. In V.Sreenivasa Reddy and Ors Vs. Govt of A.P and Ors, reported in 1994 Suppl (4) SCR 233, the Hon'ble Supreme Court held that in so far as direct recruits, the seniority would count from the date on which they started discharging the duties of the post. But, when it comes to temporary appointees though they may have the insignia of appointment under R.10(a)
(i)(1), yet they are not members of the service until they are duly appointed and their services subsequently regularised and they would always remain outside the cadre.
32. I am also unable to approve of the retrospective effect given to the promotions in so far as the private respondents are concerned for the simple 32/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 reason that in terms of R.23(a) and R.33(a), the appointing authority is invested only with the discretion to fix the date of initial appointment or a subsequent date to be the commencement of the date of probation. Thus, the rules do not contemplate giving any retrospective effect to the appointment and therefore the action of the Statutory respondents is is clearly violative of the rules in that regard.
33. The Hon'ble Supreme Court in K.Madalaimuthu and Anr vs State of Tamil Nadu reported in (2006) 6 SCC 558, while dealing with the case of determination of seniority, held that seniority of a person appointed temporarily to a particular post without recourse to the recruitment rules, can be counted only from the date on which his services are regularised and determining his seniority, considering the date of initial appointment on temporary basis as the starting point of seniority was improper. In the said case, the authorities, on the strength of Government Orders had given retrospective effect to regularization of promotees and the Hon'ble Supreme Court in no uncertain terms held that such a course of action was erroneous 33/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 and contrary to the well established principles relating to determination of seniority. In the said decision, the Hon'ble Supreme Court also held that initial appointment to a post without recourse to the rules of recruitment is not an appointment to service, not withstanding the fact that such appointee is called upon to perform duties of a post borne on the cadre of such service. It follows that a person who is appointed on ad-hoc basis to discharge functions of a particular post otherwise than in accordance with recruitment rules, cannot be a person in service, till such time his appointment is regularised and only from the date his services is regularised, the said appointee can count his seniority in the cadre.
34. In M.P.Palanisamy & Ors Vs. A.Krishnan & Ors, reported in 2009 (6) SCC 428, placing reliance on R.23(a) (i) of Tamil Nadu State and Sub-ordinate Service Rules, the Apex Court rules that ad-hoc employee cannot claim seniority to the junior most person already in service.
1. The Division Bench of this Court in S.P.Pethel Raj Vs. Ve. Vairappan, 34/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 held that rules under Art.309 of Constitution of India, no doubt can be made with retrospective effect. However, the Division Bench held that making rules retrospective in operation and making appointments in accordance with such rules are entirely different. The power to make rules being legislative in nature could be exercised retrospectively, whereas, in the light of such rules, appointments being made retrospectively is purely administrative in nature and if such administrative actions prejudicially affect vested rights of other Government employees, then such administrative acts will be unfair and arbitrary.
2.
36. Applying the said ratio in the facts of the present case, as already discussed herein above, when the Writ Petitioners have cleared the competitive exam and had been found eligible to be appointed as Assistants, certainly the issuance of impugned G.O.MS.No.218 was seriously prejudicial to their interest and was in the nature of snatching away rights vested in 35/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 them.
37. The Hon'ble Supreme Court in Rashi Mani Mishra and Ors Vs. State of Uttar Pradesh and Ors reported in 2021 SCC Online SC 509, deciding an issue pertaining to determination of seniority of Assistant Engineers and their services rendered as ad-hoc prior to regularization, eligible for being counted for the purpose of seniority, held that ad-hoc services cannot be reckoned for the purpose of seniority since initial appointment was only temporary and ad-hoc and not according to the rules. Seniority in any service is always determined by the date of order of appointment in a substantive vacancy and consequently seniority can be counted only from the date of a substantive appointment as in regular appointment and not ad-hoc appointment.
38. In Malook Singh and Ors Vs. State of Punjab and Ors reported in 2021 SCC Online SC 876, relying on the ratio laid by the Constitution Bench of the Hon'ble Supreme Court in Direct Recruit Class II Engineering 36/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 Officers Association's case, the Hon'ble Supreme Court held that ad-hoc services cannot be counted for determining seniority if the initial arrangement was made as a stop gap arrangement and not according to rules and further clarified that a substantive appointment does not include adhoc appointment and consequently seniority has to be counted only from the date of substantive appointment.
39. In the facts of the case on hand also, it is clear from G.O.(Ms) No.144 dated 30.04.2007 as well as G.O.(Ms)No.218 dated 09.09.2016, the appointment of the private respondents was only ad-hoc and in administrative interest and thus it is a clear case, like the case before the Hon'ble Supreme Court, where the appointments of the private respondents was only a stop gap arrangement and not in accordance with the rules entitling such ad-hoc service to be counted for the purposes of seniority.
40. Further the concept of promotion is only appointment of a person from lower category to a higher category based on his merit, eligibility and 37/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 suitability. In so far as the Writ Petitioners are concerned they are all admittedly found meritorious and eligible for appointment to the post of Assistants and therefore their appointment can be termed only as regular in terms of the Act. However, in so far as the private respondents, admittedly as already discussed herein above their appointments were only in temporary/ad-hoc basis and therefore, their appointments cannot be termed as regular. It is settled law that seniority is counted only on the day when the employee starts discharging his duty in the post borne on the cadre and not earlier. Therefore, I am unable to accept the arguments advanced by the learned Senior Counsel Mr.S.Silambannan-AAG-II as well as the learned Senior Counsel Mr.G.Sankaran for the respondents 6 to 15 in W.P.No.35788 of 2019 that only the date of appointment would be relevant and the Writ Petitioners were appointed only in December 2012, which was later than the ad-hoc employees being promoted/regularised. The further contention of the learned AAG-II and the learned Senior Counsel that administrative delay cannot be put against individuals. I have already found that the reasons assigned do not satisfy the requirement of the statutory provisions. There was 38/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 absolutely no cause available to the authorities to issue G.O.(Ms)No.218 in the teeth of the notification dated 31.12.2010 in pursuance of which examination was also held on 30.07.2011 and the Writ Petitioners were all appointed directly to the post of Assistants. One another contention of the learned Senior counsel for the petitioners, in which I find force, is that in the impugned communication dated 27.06.2012 the authorities admittedly have not drawn up the list/panel in terms of R.5 of the Tamilnadu Ministerial Service Rules, which exercise is required to be done every year. I am also reminded of the ratio laid down by the Hon'ble Supreme Court in Debrata Dash and anr Vs. Jatindra Das Prasad and anr, reported in 2013 3 SCC 658, wherein the Hon'ble Supreme Court has held that a public appointment made on adhoc basis would always be sub-ordinate to the regular appointment.
41. In so far as the decisions on which reliance is placed by the learned Senior Counsel for the respondents 6 to 15 in W.P.No.35788 of 2019, the Hon'ble Supreme Court in K.Meghachandra Singh and Others Vs. Ningam 39/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 Siro and Others, reported in (2020) 5 SCC 689, held that seniority cannot be claimed from a date when the incumbent is yet to be borne in the cadre. Relying on the said decision, learned Senior counsel would contend that the petitioners cannot claim seniority since they were admittedly appointed only on 11.12.2012, before which date private respondents have been regularised/appointed. There is no quarrel with regard to the said ratio laid down by the Hon'ble Supreme Court in the said case. However, the issue on hand is the colorable exercise of power exercised by the authorities which has led to non consideration of the seniority of regularly appointed Assistants viz., the Writ Petitioners.
42. In State Bank of India & Ors Vs. Kashinath Kher and Ors, reported in (1996) 8 SCC 762, the Hon'ble Supreme Court has held that the policy decision relaxing criteria of eligibility with retrospective effect cannot be termed as unjust. However, in the case on hand, it was not a case similar to the facts in issue before the Hon'ble Supreme Court. Here, the Writ Petitioners were already shortlisted and waiting to be appointed and invoking 40/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 a non-existent emergency clause, the appointment of the Writ Petitioners was deferred only in order to accommodate the candidates in feeder categories and that being so, the administrative action in the case on hand is clearly violative of the principles enunciated by the Hon'ble Supreme Court as also the fundamental rights guaranteed under Art.309 of the Constitution of India.
43. Reliance was also placed by the learned Senior counsel for the respondents 6 to 15 on the decision of this Court in W.P.No.960 of 2015 dated 05.06.2015, in V.Yuvaraj Prasanna Vs. The Secretary to Government and Ors. The facts of the said case were entirely on a different footing. It was a case where after regularization of the service of the petitioner he was asked to undergo training for a period of about six weeks and there was a delay in issuing the Government Order as a result of which training was also consequently delayed and during that relevant period, persons junior to the petitioner were sent for training and in such scenario, this Court held that petitioner should have been notionally promoted as Assistant from the date 41/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 on which his immediate junior was promoted. However, I am unable to apply the said ratio to the facts of the present case.
44. In K.Kalasamy Vs. Secretary to Government and Ors, this Court in W.P.No.12774 of 2015 dated 25.07.2022, held that administrative delay in regularizing services cannot be put against the employee when it came to opportunity of his promotion to his higher post. This case also will not in anyway come to the aid of the private respondents.
45. In M.Narendiran Vs. State of Tamil Nadu & Ors in W.P.No.8677 of 2018 dated 13.07.2022, this Court held that since the petitioner had not been sent for mandatory training and such delay being on account of administrative reasons, could not put against the Writ Petitioner and he was directed to be ranked above the Junior Assistants who were sent for training ahead of him. The ratio in the said case, again, unfortunately does not in anyway come to the rescue of the private respondents, especially in the entirely different gamut of circumstances under which the present writ 42/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 Petitions have come to be filed.
46. The Hon'ble Supreme Court in State of Tamil Nadu and another Vs. E.Paripoornam and Ors, reported in 1992 Supp (1) SCC 420, while holding that period of temporary service prior to regular appointment cannot be counted for seniority, held that seniority has to reckoned on the basis of ranking in the approved list prepared by the Public Service Commission notwithstanding the regularisation. However, in the said judgment, the Hon'ble Supreme Court has held that there is no rule supporting the contention that the services rendered in temporary post would be available for determining seniority in the cadre. It was held that service rendered in the temporary post was available either for earning increments or for commencement of probation as it is clear from R.23(a). Ultimately, the Hon'ble Supreme Court held that the said case before it was not an exception to the general principle that temporary appointees are not entitled to count the temporary services for seniority as such appointment is a matter of stop gap, emergency or fortuitous arrangement despite the fact that the temporary 43/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 services have been regularised.
47. In Thiru A.Balakrishnan & Anr Vs. Govt.T.N and Ors, reported in 1995 Supp (4) SCC 108, the Hon'ble Supreme Court placing reliance on Paripoornam's case held that when the order of regularisation of services of candidates expressly stated that inter se seniority of the candidates would be in accordance with the rankings in the approved list prepared by the Public Service Commission and will not be affected in any way by the date of regularisation of services and such order of regularisation of temporary service denies such service for the purpose of determining seniority, the Court cannot count that service for the purpose of seniority and finding that there is no such condition in the order of regularisation of the appellants before the Hon'ble Supreme Court denying seniority to the appellants from the date of their initial appointment, from which date they were regularised, they are entitled to count the whole of the period of service for the purpose of seniority.
44/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019
48. In the instant case, in and by the impugned G.O.(Ms)No.218, the Junior Assistants and Steno Typist Grade III were regularised with effect from 01.04.2007, with seniority. However, as already discussed R.48 of the Tamil Nadu State and Sub-ordinate Service Rules does not contemplate or provide for such retrospective regularisation/effect. Therefore, even applying the ratio of the Hon'ble Supreme Court in Balakrishnan's case, the private respondents would become eligible on or from 09.09.2016 only for the services to be counted for the purpose of seniority.
49. From the above discussion, I have no hesitation in holding that G.O.(Ms).No.218 dated 09.09.2016 is a colorable exercise of power and action by the authorities and is liable to be set aside for clearly being violative of Art.309 of the Constitution of India relating to recruitment and conditions of service of persons serving the Union or a State, mandating rules to be subject to provisions of the Act and to ensure that it does not result in conflict with the guaranteed rights to a citizen under Art.14 and 16 of the Constitution of India.
50. In fine, the Writ Petitioners deserve indulgence of this Court by 45/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 issuance of a fiat of Writ of Certiorarified Mandamus. Accordingly, both the Writ Petitions are allowed as prayed for. No costs. Consequently, connected miscellaneous petitions are closed.
51. Mr.V.Prakash, learned Senior Counsel would request that an outer time limit may be fixed for the respondents to refix Seniority. Considering the said request and the time already lost by the petitioners in litigation, I direct 46/47 https://www.mhc.tn.gov.in/judis W.P.Nos.35788 and 35800 of 2019 P.B.BALAJI, J., kpr the Authorities to re-fix the Seniority and pass suitable orders within a period of 12 weeks from the date of receipt of copy of this order.
10.11.2023.
Internet:Yes Index:Yes/No Speaking order Neutral Citation:Yes/No KPR/Ls To
1.The Health Secretary/Principal Secretary to Government State of Tamil Nadu, Fort St.George, Secretariat Chennai-9.
2.The Secretary to Government Personnel and Administrative Reforms Department Government of Tamil Nadu, Secretariat, Chennai-9
3.The Secretary Tamil Nadu Public Service Commission TNPSC road, V.O.C. Nagar, Park Town, Chennai-600 003.
4.The Director of Medical and Rural Health Services Medical Department, DMS campus Teynampet, Chennai-6.
Pre-delivery order in W.P.Nos.35788 and 35800 of 2019 &W.M.P.Nos.36682, 36690 of 2019, 17519 and 17466 of 2020 and 9067 and 9086 of 2023 47/47 https://www.mhc.tn.gov.in/judis