Madras High Court
W.Arokia Raja Xavier vs The Government Of Tamil Nadu on 26 September, 2024
Author: R.Vijayakumar
Bench: R.Vijayakumar
W.P(MD).Nos.19130 & 20496 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
ORDER RESERVED ON : 20.09.2024
ORDER PRONOUNCED ON : 26.09.2024
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.P.(MD).Nos.19130 & 20496 of 2024
and WMP(MD).Nos.16188, 16189, 16190 of 2024
and 17396, 17398 & 17399 of 2024
1.W.Arokia Raja Xavier
2.C.Mayilvaganan ....Petitioners 1 & 2
in WP.No.19130 of 2024
3.R.Charles
4.S.Malarvizhi
5.K.Karnan
4.N.Jeyanthi
5.B.Krishnaprabhu
6.C.Vinothkumar
7.R.Vigneshwaran
8.S.Suresh
9.S.Ragumathu Nisha
10.A.Vijagula Amala Jency ...Petitioners 1 to 10
in WP.No.20496 of 2024
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W.P(MD).Nos.19130 & 20496 of 2024
Vs
1.The Government of Tamil Nadu
Represented by Secretary to Government
Animal Husbandry, Dairying, Fisheries &
Fishermen Welfare Department
Fort St.George, Chennai 600 009
2.The Secretary to Government
Human resources and Management Department
Fort St.George, Chennai 600 009
3.The Director
Animal Husbandry and Veterinary Services
571, Annasali, Nandanam
Chennai 600 035
4.S.Sridharan
5.P.Ramesh
6.M.Dhanabakkiam
7.V.Sasikumar
8.P.Sivakumar
9.S.Prakash Kumar
10.K.Kalanidhi
11. M.Mangai
12.R.N.Sangaralingam
13.N.Ramachandrasekar
14.K.D.Sathyamoorthy
15.R.Kumar
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W.P(MD).Nos.19130 & 20496 of 2024
16.C.Sreenivasan
17.P.Sathishkumar
18.M.Veeramanikandan
19.A.Sivashanmugam
20.N.Periasamy
21.D.Dhanam
22.R.Sivakumar
23.G.Lakshmi Narayanan
24.V.Venkatesan
25.P.Thilak
26.A.Hariharan
27.D.Mohanambal
28.R.Jegadeesan
29.K.Ramesh
30.Gajapathyram
31.M.Chitra
32.C.Chandrabose
33.D.Kathiresan
34.M.Neelapillai
35.R.Kamalaveni
36.P.Amutha
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W.P(MD).Nos.19130 & 20496 of 2024
37.C.Asiaparveen
38.N.Vijayalakshmi
39.V.Muthukumaran
40. R.Kavitha
41.N.Kalpana
42.A.Muthukumar
43.P.Raja
44.R.Muthukrishnan
45.P.Gokul Govindaraj
46.S.Kavitha
47.V.Parasuraman
48.M.Lally
49.S.Alamelumangai
50.S.M.Y.Kathar Hussain
51.N.Thangapandian
52.K.P.A.Nallamohammed
53.S.P.Vasuki
54.K.Selvam
55.P.Annalakshmi
56.S.Deventhiran
57.N.Kala
58.V.Vimala
59.C.Selvi
60.S.Tamilarasi
61.S.Vijayalakshmi
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W.P(MD).Nos.19130 & 20496 of 2024
62.R.Tamilselvi
63.R.Bhuvaneswari
64.A.Sivasankari
65.K.Malathi
66.G.Selvarani
67.K.V.Veeramurugeswari
68.K.Akila
69.A.Abdul Jaffer
70.D.Manimegalai
71.I.David Daniel
72.P.Selvi
73.S.Revathi
74.R.Eswari
75.N.Vanitha
76.G.Yamuna
77.K.Karpagamani
78.K.Amuthavalli
79.K.Jamesvictor
80.T.Balamurugan
81.A.Annamalai
82.K.Ravichandran
83.T.Santhanavel
84.R.Sethupathi
85.J.Dhayanithi
86.K.Vimala
87.S.Jeyalakshmi
88.R.Murugan
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W.P(MD).Nos.19130 & 20496 of 2024
89.M.Sanjeevirajan
90.N.Kamala
91.S.Nagarajulu
92.T.R.S.Arjun
93.B.Manokaran
94.S.Manivannan
95.A.T.Rajendran
96.B.Jeya
97.S.Sarasaal
98.G.Murugaraja
99.S.Srithar
100.K.M.Ashwinkumar
101.R.Latha
102.A.Chitralekha
103.B.Muthurathinam
104.K.Gopi
105.R.Dineshkumar
106.T.Sakthi
107.E.Mohana
108.M.Suguna
109.T.Arivalagan ....Respondents in both petitions
Prayer in WP(MD).No.19130 of 2024: This Petition filed under Article 226
of the Constitution of India, to issue a writ of Certiorarified Mandamus
calling for the records of the third respondent in relation to the proceedings
issued in Na.Ka.No.2306/R1/2024-1 dated 18.07.2024 issued by the third
respondent and quash the same and issue a consequential direction to the
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W.P(MD).Nos.19130 & 20496 of 2024
respondents 1 to 3 to prepare a seniority list of the assistants, by placing the
petitioner over and above the promotees and fix the rank of the petitioner at
serial No.83 and 94 among the direct recruits for the post of Assistant in
accordance with the judgments of the Hon'ble Supreme as directed in W.P.No.
23302 of 2018 dated 27.04.2019 and in W.A.No.2008 of 2019 dated
08.04.2024 and to prepare the panel accordingly, consisting of Assistants
appointed to the vacancies meant for 2012-2013, fit for promotion to the post
of the Superintendent and issue a consequential directions to the respondents,
to promote the petitioners herein as Superintendent from the date on which
their juniors are promoted with service and monetary benefits.
Prayer in WP(MD).No.20496 of 2024: This Petition filed under Article 226
of the Constitution of India, to issue a writ of Certiorarified Mandamus
calling for the records of the third respondent in relation to the proceedings
issued in Na.Ka.No.2306/R1/2024-1, dated 18.07.2024 issued by the third
respondent and quash the same and issue a consequential direction to the
respondents 1 to 3 to prepare a seniority list of the assistants, by placing the
petitioners over and above the promotees and fix the rank of the petitioner at
Serial Nos.142, 172, 183, 157, 73, 3, 55, 68, 182 and 174 among the direct
recruits for the post of assistants in accordance with the judgments of the
Hon'ble Supreme Court as directed in W.P.No.23302 of 2018 dated
27.04.2019 and in W.A.No.2008 of 2019 dated 08.04.2024 and to prepare the
panel accordingly, consisting of assistants appointed to the vacancies meant
for 2012-2013, fit for promotion to the post of Superintendent and issue a
consequential directions to the respondents to promote the petitioners herein
as Superintendent from the date on which their juniors are promoted with
service and monetary benefits.
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W.P(MD).Nos.19130 & 20496 of 2024
In W.P.No.19130 of 2024:
For Petitioners : Mr.R.Saseetharan
For Respondents : Mr.Veera.Kathiravan
Additional Advocate General
assisted by Mr.S.Shaji Bino
Special Government Pleader for R1 to R3
: Mr.A.K.Baskarapandian for R5 to R11,
13 to 20, 24,26, 29 to 33, 35, 36, 38, 39
41, 42, 44, 48, 49, 51 to 55, 58, 60, 62,
64 to 67, 70 to 73, 76 to 78, 80 to 84, 86
88, 91, 93, 98, 102, 104 & 107
In W.P.No.20496 of 2024:
For Petitioners : Mr.R.Saseetharan
for Mr.C.Rathna Vel Pandian
For Respondent : Mr.Veera.Kathiravan
Additional Advocate General
assisted by Mr.S.Shanmugavel
Additional Government Pleader for R1 to R3
: Mr.A.K.Baskarapandian for R24 & R29
COMMON ORDER
Both the writ petitions have been filed by directly recruited Assistants as against their 50% quota in the Animal Husbandry Department through TNPSC in the year 2012-2013 and appointed on 27.03.2015. https://www.mhc.tn.gov.in/judis 8/34 W.P(MD).Nos.19130 & 20496 of 2024
2.The private respondents in both the writ petitions were temporarily promoted to the post of Assistants from Junior Assistants/Typists on 30.10.2014. The instant writ petitions have been filed challenging a combined seniority list published by the Director of Animal Husbandry and Veterinary Service Department on 18.07.2024 wherein the promotees have been placed over and above the directly recruited candidates.
(A)Facts leading to the filing of these writ petitions are as follows:
3.The private respondents herein were originally appointed through TNPSC as Junior Assistants/Typists and they were temporarily promoted as Assistants on 30.10.2014. Thereafter, the writ petitioners herein were directly recruited as Assistants through TNPSC in the recruitment year 2012-2013 and were appointed to the said post on 27.03.2015. On 01.08.2018, proceedings were issued giving retrospective regularization to the temporary promotion granted to the Junior Assistants/Typists as Assistants with effect from their initial date of temporary promotion namely 30.10.2014.
4.On 31.08.2018, a combined seniority list of the directly recruited Assistants and Promotee Assistants was published in which the directly recruited candidates were placed below the promotees in view of retrospective regularization of promotion order. This combined seniority list was challenged by the directly recruited Assistants in W.P.No. 23302 of 2018 batch cases. This Court by an order dated 27.04.2019 allowed the writ https://www.mhc.tn.gov.in/judis 9/34 W.P(MD).Nos.19130 & 20496 of 2024 petitions and quashed the combined seniority list dated 31.08.2018. The said order was challenged by the promotees in W.A.No. 2008 of 2019 batch cases.
The Hon'ble Division Bench by their order dated 08.04.2024 disposed of the appeal with a direction to issue a revised seniority list after getting objection from the parties concerned. The employees were granted liberty to challenge the revised seniority list, in case if they are aggrieved for the same.
5.A proceeding was issued on 10.05.2024 wherein the interse seniority among the promotees was revised in view of retrospective declaration of probation and regularization of their services. On 23.05.2024, proceedings were issued declaring that the Typists who were placed in additional charge as Junior Assistants have complied with Rule 30(c) of Tamil Nadu Ministerial Service Rules which mandates one year training as Junior Assistant. Thereafter, the instant impugned combined seniority list dated 18.07.2024 has been issued wherein the promotees who were temporarily promoted on 30.10.2014 have been placed above the directly recruited Assistants from Sl.No.1 to 152. This order is under challenge by the directly recruited candidates in both the writ petitions.
(B)Contentions of the learned counsel appearing for the writ petitioners in both the writ petitions are as follows:
6.The promotees from Junior Assistant to Assistants were granted only temporary promotion on 30.10.2014 as contemplated under Rule 39(a)(i) of https://www.mhc.tn.gov.in/judis 10/34 W.P(MD).Nos.19130 & 20496 of 2024 Tamil Nadu State and Subordinate Services Rules. The temporary promotion order reveals that so far, final seniority list has not been published for the Junior Assistants/Typists. It further reveals that since the promotion is temporary in nature, the same cannot be relied upon for the purposes of seniority in the cadre of assistant. It further reveals that once a final seniority list of Junior Assistants/Typists is released, a panel for assistants would be prepared and regular promotion would be granted. Therefore, based upon this temporary promotion, the promotees can never make any claim for seniority from the date of their temporary promotion.
7.Though the temporary promotion order dated 30.10.2014 states that only qualified Junior Assistants and Typists are promoted as Assistants, in fact unqualified persons were also promoted in the temporary promotion order. Therefore, the period of temporary promotion can never be taken into consideration for reckoning the seniority.
8.As per Rule 36(ii) of Tamil Nadu State and Subordinate Services Rules, promotion shall be made only in accordance with seniority. In the present case, even before finalising the interse seniority list among the Junior Assistants/Typists, promotions have been effected. Therefore, the temporary promotion is not in accordance with the rules.
9.Only after dismissal of the writ appeal by the Hon'ble Division Bench on 08.04.2024, proceedings have been issued on 10.05.2024 regularization of https://www.mhc.tn.gov.in/judis 11/34 W.P(MD).Nos.19130 & 20496 of 2024 appointment and declaration of probation has been granted for initial date of appointment for 71 Assistants. Therefore, it is clear that on the date of their initial temporary promotion, they were not qualified.
10.As per Rule 30(c) of Tamil Nadu Ministerial Service Rules, no typist shall be eligible for promotion as Assistant in any department, unless he has undergone training as Junior Assistant for a period of one year.
However, in the present case, 59 Typists who were temporarily promoted in the year 2014 have not undergone training as Junior Assistant. Only on 23.05.2024, proceedings were issued granting relaxation from undergoing the said training. Therefore, it is clear that on the date of temporary promotion, these 59 typists were not qualified to be promoted. Further, as per section 58 of Tamil Nadu Government Servants (Conditions of Service) Act, 2016 only the Government has got power to relax the condition imposed for granting promotion. Therefore, the proceedings dated 25.03.2024 of the Director of Animal Husbandry and Veterinary Services is clearly without jurisdiction and the same cannot confer any right upon those 59 Typists to claim seniority from the date of their temporary promotion especially over and above the directly recruited Assistants.
11.The learned counsel appearing for the writ petitioners had relied upon a judgement of the Hon'ble Supreme Court reported in AIR 2006 SC 2662 (K.Madalaimuthu and another Vs. State of Tamil Nadu and others) https://www.mhc.tn.gov.in/judis 12/34 W.P(MD).Nos.19130 & 20496 of 2024 and contended that a person who is appointed temporarily to discharge the functions in a particular post without recourse to the recruitment rules, cannot be said to be in service till such time as his appointment is regularised. He had further contended that, only from the date on which the services of the temporarily promoted persons are regularised, his seniority in the cadre could be counted. In the present case, the private respondents having been temporarily promoted in the year 2014 were granted regular promotion only on 01.08.2018. Therefore, they should be treated to have entered into the service as Assistants only on 01.08.2018 whereas the petitioners who were directly recruited Assistants have been appointed on 27.03.2015, cannot be placed behind the promotee Assistants. He had further contended that contrary to the temporary promotion order dated 30.10.2014, the promotees have been found to be not qualified to be promoted in the year 2014 in the light of the fact that the regularisation of their appointment, declaration of probation, relaxation of Rule 30(c) of Tamil Nadu Ministerial Service Rules have been granted only after the orders of the Hon'ble Division Bench dated 08.04.2024.
12.The learned counsel for the petitioners had further relied upon the judgment of the Hon'ble Supreme Court reported in 1990 (2) SCC 715 (Direct Recruit Class-II Engineering Officers' Association Vs.State of Maharashtra and others) especially Paragraph No.47 and contended that if https://www.mhc.tn.gov.in/judis 13/34 W.P(MD).Nos.19130 & 20496 of 2024 the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such a post cannot be taken into account for considering the seniority. The learned counsel had also relied upon a Division Bench judgment of our High Court in W.A.No.2537 and 2612 of 2019 (The Government of Tamil Nadu and another Vs. J.Ganesan and others) dated 23.12.2020 especially Paragraph No.29 and contended that the right of the promotees to get seniority, will begin only from the date of their regular appointment and their officiation in the post for a temporary period, will not be taken note of for fixing their seniority.
13.The learned counsel for the writ petitioners had further relied a Division Bench judgment of our High Court in W.A.Nos.3315 of 2023 batch cases dated 27.06.2024 especially Paragraph No.16 to contend that only in cases where the temporary promotions are granted due to administrative reasons beyond the control of the employee, seniority could be reckoned from the date of temporary promotion. The learned counsel had further relied upon the judgement of the Hon'ble Supreme Court reported in 1991 Supp (1) Supreme Court Cases 334 (State of Bihar and others Vs. Akhouri Sachindranath and others) especially Paragraph No.12 and contended that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely affect others. Hence, he prayed for quashing the impugned combined seniority list dated 18.07.2024 in the light https://www.mhc.tn.gov.in/judis 14/34 W.P(MD).Nos.19130 & 20496 of 2024 of the above said factual and legal issues raised on the side of the petitioners.
(C) Contentions of the learned Additional Advocate General appearing on behalf of the official respondents are as follows:
14.Some of the directly recruited Assistants have challenged the retrospective regularisation of promotion granted to the promotee Assistants on 01.08.2018 in W.P.No.22666 of 2019. However, no interim orders have been granted and therefore, the said regularisation order is in force as on today.
15.The promotees have been promoted within the quota of 50% only and therefore, the directly recruited Assistants cannot have any grievance whatsoever.
16.The writ Court in its order dated 27.04.2019 while quashing the first combined seniority list dated 31.08.2018 has issued certain directions in Paragraph Nos.9 and 10, to the effect that the authorities were directed to consider the representations of the promotees for grant of relaxation and if relaxation are already granted, then all the suitable actions are to be taken for issuing the notional promotional orders and to grant all the consequential benefits. The writ Court has further directed the authorities to consider all the cases were relaxation is required on a case to case basis and separate orders have to be passed in respect of insertion of those candidates in the appropriate places in the seniority list.
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17.This observation of the writ Court was not revised or disturbed by the Hon'ble Division Bench in its order dated 08.04.2024. Therefore, only in compliance with the order of the writ Court, proceedings were issued on 10.05.2024 declaring the probation and regularisation of services and another order on 23.05.2024 recognising the functioning of the Typists as Junior Assistants. Therefore, theses orders cannot be found fault with by the writ petitioners.
18.A final interse seniority list among the promotee Assistants was published on 10.05.2024 and the same has not been challenged. Without challenging the same, the directly recruited Assistants cannot contend that since the probation and regularisation of services have been granted belatedly, the temporary promotion granted to the Junior Assistants/Typists will not confer seniority.
19.The learned Additional Advocate General had relied upon a judgment of the Five Judges Bench of the Hon'ble Supreme Court reported in (1990) 2 SCC 715 (Direct Recruit Class-II Engineering Officers' Associaiton Vs. State of Maharashtra and others) especially in Paragraph No.47 and contended that if during the initial appointment, the procedure laid down by the Rules have not been followed, but the appointee continues in the post, uninterruptedly till the regularisation, the period of officiating service can be counted. He had further relied upon the Division Bench judgment of https://www.mhc.tn.gov.in/judis 16/34 W.P(MD).Nos.19130 & 20496 of 2024 our High Court in W.A.No.2357 and 2312 of 2019 (The Government of Tamil Nadu and another Vs. J.Ganesan and others) dated 23.12.2020 and contended that once an appointment is made according to the Rule, his seniority has to be counted from the date of his appointment.
20.The learned Additional Advocate General also relied upon a Division Bench Judgment of our High Court in W.A.No.3315 2023 batch case ( S.Subramani and others vs. The State of Tamil Nadu and others) dated 27.06.2024 especially Paragraph No.24 and contended that once an incumbent is appointed to a post according to Rule, his seniority has to be counted from the date of his appointment and not counted from the date of his confirmation.
21.The learned Additional Advocate General had further contended that in the present case, when the writ petitioners were appointed as Assistants on 27.03.2015 already the private respondents were officiating as Assistants from October 2014. On the date of granting temporary promotion, all of them were fully qualified and only due to certain administrative delay, the regularisation of services and declaration of probation were not made. Due to want of Junior Assistants, all the 59 Typists have already worked as incharge Junior Assistants for several years, without any formal order of posting as Junior Assistants. Therefore, they have already undergone the https://www.mhc.tn.gov.in/judis 17/34 W.P(MD).Nos.19130 & 20496 of 2024 training for a period of more than one year as Junior Assistants. Hence, the question of granting relaxation from Rule 30(c) of Tamil Nadu Ministerial Service Rules does not arise. The order dated 23.05.2024, has only recognised the fact that those 59 Typists have already undergone the training as Junior Assistants. Therefore, according to him, there was no requirement for any relaxation from the Rules. When temporarily promoted Assistants were fully qualified on the date of their promotion and the promotion were effected as per Rules, as a natural consequence, they will be entitled to count their temporary promotion period for the purpose of seniority and hence, they were placed over and above the directly recruited Assistants under the impugned combined seniority list. Hence, he prayed for dismissal of the writ petitions.
(D) Contentions of the learned counsel appearing for the private respondents are as follows:
22.The learned counsel for the private respondents had relied upon the proceedings dated 23.05.2024 and contended that all the 59 typists have already undergone the training as Junior Assistants when they were placed in- charge of the post of Junior Assistants. Therefore, they had already undergone the mandatory training of Junior Assistants for more than one year. Hence, the issue was not referred to the Government for relaxation. The proceedings dated 23.05.2024 was issued only by way of abundant caution recognising https://www.mhc.tn.gov.in/judis 18/34 W.P(MD).Nos.19130 & 20496 of 2024 the services of the Typists as Junior Assistants for more than one year.
23.The learned counsel had further contended that the directly recruited Assistants though have challenged the order dated 01.08.2018 granting retrospective regularisation of promotion in W.P.No.22666 of 2019 before the Principal Seat, for the past five years, there are no interim orders. Therefore, when the retrospective regularisation order has not been quashed or stayed by the Court, there is no legal impediment whatsoever to fix the seniority of the promotee Assistants on the basis of the above said order dated 01.08.2018. Hence, he prayed for dismissal of the writ petitions.
24.I have considered the submissions made on either side and perused the material records.
(E) Discussion:
25.The private respondents in both the writ petitions were appointed to Government Service between 1981 to 2011 as Junior Assistants either under compassionate ground quota or promoted from the lower cadre or directly recruited as Junior Assistants or Typists.
26.Perusal of the temporary promotion order granted to the private respondents (from the Junior Assistants to Assistants) dated 30.10.2014 reveals the following reasons for granting temporary promotion to the private respondents.
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(a) A temporary seniority list of all the Junior Assistants were prepared and published. However, various requests were made seeking revision of the said provisional seniority list. Therefore, there was a delay in publishing the final seniority list among the Junior Assistants/Typists.
(b) 413 vacancies for the post of Assistants are vacant and in view of delay in finalising the seniority list among the Junior Assistants/Assistants, the administration faces the difficulty.
(c)In view of emergency, temporary promotion is granted, invoking Rule 39(a)(i) of Tamil Nadu State and Subordinate Service Rules.
(d)All the promotees are fully qualified and none of them are yet to be regularised or probation to be declared.
(e) None of them require any relaxation from the Rules.
(f) Since the promotion is temporary, the same cannot be considered for seniority in the cadre of Assistant.
(g) Once a final seniority list of Junior Assistants/Typists is published, the regular promotion would be granted.
27.A perusal of the temporary promotion granted to the private respondents on 30.10.2014 reveals that they are fully qualified to be promoted as Assistants on the date of their temporary promotion.
28. Rule 39(a)(i) of Tamil Nadu State and Subordinate Servants Rules which empowers the Government to effect temporary promotion is extracted as follows:
39. Temporary promotion — (a) (i) Where it is necessary in https://www.mhc.tn.gov.in/judis 20/34 W.P(MD).Nos.19130 & 20496 of 2024 the public interest owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a higher category in a service or class by promotion from lower category and there would be undue delay in making such promotion in accordance with the rules, the appointing authority may temporarily promote a person, who possesses the qualifications prescribed for the post, otherwise than in accordance with the rules.
39(f) (i) A person promoted under sub-rule (a) or (d) shall commence his probation if any, in such category either from the date of his temporary promotion or from such subsequent date as the appointing authority may determine;
Provided that on the date so determined, the person possesses all the qualifications prescribed for promotion to the service, class or category, as the case may be.”
29.A perusal of the above said Rules reveal that only those who possess the qualification prescribed for the post can be temporarily promoted otherwise than in accordance with Rules. In view of the fact that they are fully qualified, they commence their probation either from the date of their temporary probation or from any subsequent date as the appointing authority may determine. However, unless the person possesses all the qualifications prescribed for promotion to a particular post, a person cannot commence his probation from the date of his temporary promotion. Therefore, it is clear that the period of officiating service after temporary promotion can be calculated https://www.mhc.tn.gov.in/judis 21/34 W.P(MD).Nos.19130 & 20496 of 2024 for any purpose including the fixation of seniority only if the promotees are fully qualified to be promoted to the post of Assistant on the date of their temporary promotion.
30.A Five Judges Bench of the Hon'ble Supreme Court in a judgement reported in 1990 (2) SCC 715 (Direct Recruit Class-II Engineering Officers' Association Vs.State of Maharashtra and others) in Paragraph No. 47 has held as follows:
“47. To sum up, we hold that:
(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.
The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisa- tion of his service in accordance with the rules, the period of officiating service will be counted.
(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the https://www.mhc.tn.gov.in/judis 22/34 W.P(MD).Nos.19130 & 20496 of 2024 different sources, and if rules are framed in this regard they must ordinarily be followed strictly.
(D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down.
(E) Where the quota rule has broken down and the appoint- ments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date.
(F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule.
(G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject.
(H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative.
https://www.mhc.tn.gov.in/judis 23/34 W.P(MD).Nos.19130 & 20496 of 2024 (I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers.
(J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinised for finding out any possible error. It is not in the interest of Service to unsettle a settled position.
With respect to Writ Petition No. 1327 of 1982, we further hold:
(K) That a dispute raised by an application under Article 32 of the Constitution must be held to be barred by principles of res judicata including the rule of constructive res judicata if the same has been earlier decided by a competent court by a judgment which became final.”
31.A Three Judges Bench of the Hon'ble Supreme Court in a judgement reported in 1993 (3) SCC 371 (State of West Bengal and others Vs.Aghore Nath Dey and others) had an occasion to consider the conclusion arrived at by the Hon'ble Supreme Court in 1990 (2) SCC 715 (Direct Recruit Class-II Engineering Officers' Association Vs.State of Maharashtra and others) in Conclusion A and B in Paragraph No.47 of the said judgment. In Paragraph No.22 has held as follows:
“22.There can be no doubt that these two conclusions have https://www.mhc.tn.gov.in/judis 24/34 W.P(MD).Nos.19130 & 20496 of 2024 to be read harmoniously, and conclusion (B) can not cover cases which are expressly excluded by conclusion (A). We may, therefore, first refer to conclusion (A). It is clear from conclusion (A) that to enable seniority to be counted from the date of initial appointment and not according to the date of confirmation, the incumbent of the post has to be initially appointed ,according to rules'. The corollary set out in conclusion (A), then is, that 'where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such posts cannot be taken into account for considering the seniority. Thus, the corollary in conclusion (A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stop-gap arrangement.....”
32.A combined reading of the judgments of the Hon'ble Supreme Court cited supra will make it clear that if the appointment is ad hoc basis and not in accordance with Rules, it is made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
However, if the appointment has been made without following the procedure laid down in the Rules, when the appointee continues in the post uninterruptedly till the regularisation of the service in accordance with the Rules, the period of officiating service can be counted for seniority. Therefore, it is clear that unless the private respondents who were temporarily promoted on 30.10.2014 were fully qualified to be promoted as Assistants on https://www.mhc.tn.gov.in/judis 25/34 W.P(MD).Nos.19130 & 20496 of 2024 their date of temporary promotion namely 30.10.2014, their officiating period between 30.10.2014 and 31.07.2018 ( they were regularised on 01.08.2018) cannot be reckoned for the purpose of calculating the seniority in the cadre of Assistant.
33.As narrated above, the Government is empowered to effect temporary promotion as contemplated under Rule 39 of Tamil Nadu State and Subordinate Service Rules and also as contemplated under Section 47 of Tamil Nadu Government Servants (Conditions of Service) Act 2016, provided a person is fully qualified to be promoted to a particular post. A perusal of the temporary promotion order dated 30.10.2014 declares that all of them are fully qualified, but a temporary promotion is granted only on the ground that interse seniority among the Junior Assistants/Typists could not be finalised. The interse seniority among the Junior Assistants/ Typists was finalised and published by proceedings dated 10.05.2024.
34.A perusal of the proceedings dated 10.05.2024 reveals that the revised seniority list has been published in compliance with the order of the Hon'ble Supreme Court in Bimlesh Tanwar case by an order dated 10.03.2003 and the order dated 18.04.2023 in Contempt Petition (Civil) Diary No.6415 of 2021. Therefore, it is clear that there was a delay in finalisation of the seniority list among the promotees, since it has to be revised in compliance https://www.mhc.tn.gov.in/judis 26/34 W.P(MD).Nos.19130 & 20496 of 2024 with the order of the Hon'ble Supreme Court. Hence, it is clear that only due to certain administrative reasons, the seniority list among the promotees could not be finalised and due to administrative emergency, the temporary promotion has been effected invoking Rule 39 of Tamil Nadu State Subordinate Services Rules and promotion has been granted to the private respondents on 30.10.2014. Therefore, the contention of the learned counsel appearing for the writ petitioners that without finalisation of interse seniority among the promotees, the temporary promotion order having been granted on 30.10.2014 is in violation of Section 36(ii) of Tamil Nadu State and Subordinate Service Rules is liable to be rejected.
35.The next contention of the learned counsel for the petitioners is that though the temporary promotion by an order dated 30.10.2014 declares that all the 167 promotees are fully qualified, yet two orders have been passed on 10.05.2024 and 23.05.2024 granting certain relaxations. A perusal of the proceedings dated 10.05.2024 reveals that the seniority has been revised only based upon the order of the Hon'ble Supreme Court in Bimlesh Tanwar case. A perusal of the order dated 10.05.2024 further reveals that the interse seniority among the promotees has been revised, restoring the seniority of some of the employees based upon their belated regularisation and belated declaration of probation, however, from the date of their initial appointment. https://www.mhc.tn.gov.in/judis 27/34 W.P(MD).Nos.19130 & 20496 of 2024 Though employees were fully qualified for regularisation or for declaration of probation, without any fault on the part of the employees, due to administrative reasons, the regularisation order and declaration of probation have been made belatedly. Therefore, the said proceedings dated 10.05.2024 can never come to the rescue of the writ petitioners to contend that the promotees were not fully qualified on the date of their temporary promotion namely on 30.10.2014.
36.It is the further contention of the learned counsel for the writ petitioners that out of 167 promotees, 59 candidates are typists and rest of them are Junior Assistants. As per Rule 30(c) of the Tamil Nadu Ministerial Service Rules, a Typist has to mandatorily undergo one year training as a Junior Assistant for being promoted as an Assistant. Admittedly, when the temporary promotion was granted to these 59 Typists on 30.10.2014, they have not undergone the mandatory training as Junior Assistants. Unless relaxation is granted by the Government as contemplated under Section 58 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016, they could not be promoted. Therefore, the temporary promotion period of these 59 Typists can never be reckoned for calculating their seniority for the post of Assistants. He had further pointed out that, only by way of proceedings dated 23.05.2024, a relaxation order has been passed by the Director of https://www.mhc.tn.gov.in/judis 28/34 W.P(MD).Nos.19130 & 20496 of 2024 Department who is not competent to grant relaxation.
37.This Court has carefully perused Rule 30(c) of Tamil Nadu Ministerial Service Rules and proceedings of the Director of Animal Husbandry and Veterinary Services dated 23.05.2024. As per Rule 30(c) of the Tamil Nadu Ministerial Service Rules, a Typist has to mandatorily undergo a training as Junior Assistant for a period of one year. As per the above said rules, it is not mandatory to formally post the Typists as Junior Assistants to undergo the said training, but it is enough if they undergo the said training as Junior Assistant.
38.A perusal of the order dated 23.05.2024 of the Director of Animal Husbandry and Veterinary Service reveals that due to huge number of vacancies in the cadre of Assistants, the Typists have also been directed to hold the additional charge as Junior Assistants. Since all the 59 Typists were holding additional charge as Junior Assistants, the said period has been recognised as mandatory training of Junior Assistants as contemplated under Rule 30(c) and recognisation order has been issued on 23.05.2024.
39. All the 59 Typists have been directed to hold additional charge as Junior Assistants by an order of the Head of the Department, without being formally posted as Junior Assistants. Therefore, it is clear that they have undergone the mandatory training as Junior Assistants for a period of one year. The writ petitioners were not able to point out that these 59 Typists were https://www.mhc.tn.gov.in/judis 29/34 W.P(MD).Nos.19130 & 20496 of 2024 never placed in-charge as Junior Assistants or they were not holding the additional charge for a period of one year. In such circumstances, the question of seeking relaxation under Section 58 of the Tamil Nadu Government Servants (Conditions of Service) Act 2016, does not arise. Therefore, the proceedings dated 23.05.2024, recognizing the services of the Typists, who held additional charge of Junior Assistants does not require any order of relaxation from the Government.
40.It is the further contention of the learned counsel for the writ petitioners that these regularisation orders have been issued only after the order of the Hon'ble Division Bench dated 08.04.2024. As rightly pointed out by the learned Additional Advocate General, the writ Court while disposing of the writ petition on 27.04.2019, in Paragraph Nos. 9 and 10 has directed the authorities to consider the representation for grant of relaxation and granting notional promotion with reference to their seniority on a case to case basis. This order of the writ Court was not challenged by the directly recruited Assistants. Therefore, in such circumstances, the State cannot be found fault with for issuing the order dated 10.05.2024 and 23.05.2024 which are strictly in compliance with the orders of the writ Court and the Hon'ble Supreme Court in Bimlesh Tanwar case.
41.In view of the judgments of the Hon'ble Supreme Court cited supra, https://www.mhc.tn.gov.in/judis 30/34 W.P(MD).Nos.19130 & 20496 of 2024 it is clear that the temporary promotees would be able to count their seniority from the date of temporary promotion, if they are found to be fully qualified to be promoted on the date of temporary promotion, but procedure for granting promotion was not followed. Due to administrative delay and the delay in compliance with the order of the Hon'ble Supreme Court in Bimlesh Tanwar case in refixation of seniority, the order of regularisation, declaration of probation have belatedly issued with effect from the date of original appointment in the cadre of Junior Assistants/Typists.
42.It is not in dispute that the promotees cleared all the departmental examination on the date of their temporary promotion and no relaxation was needed from the Government on the date of temporary promotion. In such circumstances, the temporary promotion granted to the private respondents squarely falls within conclusion arrived at in Paragraph No.47(B) of the Five Judges Bench of the Hon'ble Supreme Court reported in 1990 (2) SCC 715 (Direct Recruit Class-II Engineering Officers' Association Vs.State of Maharashtra and others). Under the impugned combined seniority, reckoning the temporary promotion period with effect from 30.10.2014, the private respondents /promotees have been placed above the writ petitioners/directly recruited Assistants who were appointed only on 27.03.2015.
https://www.mhc.tn.gov.in/judis 31/34 W.P(MD).Nos.19130 & 20496 of 2024
43.In view of the above said deliberations, there are no merits in the writ petitions. Both the writ petitions stand dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
26.09.2024.
Internet : Yes/No
Index : Yes/No
NCC : Yes/No
msa
https://www.mhc.tn.gov.in/judis
32/34
W.P(MD).Nos.19130 & 20496 of 2024
To
1.The Secretary to Government
Government of Tamil Nadu
Animal Husbandry, Dairying, Fisheries &
Fishermen Welfare Department
Fort St.George, Chennai 600 009
2.The Secretary to Government
Human resources and Management Department
Fort St.George, Chennai 600 009
3.The Director
Animal Husbandry and Veterinary Services
571, Annasali, Nandanam
Chennai 600 035
https://www.mhc.tn.gov.in/judis
33/34
W.P(MD).Nos.19130 & 20496 of 2024
R.VIJAYAKUMAR, J.
msa
Pre-delivery order made in
W.P.(MD).Nos.19130 & 20496 of
2024 and WMP(MD).Nos.16188,
16189, 16190 of 2024 and 17396,
17398 & 17399 of 2024
26.09.2024
https://www.mhc.tn.gov.in/judis
34/34