Madras High Court
The State Of Tamil Nadu vs R.Rajasekaran on 21 December, 2023
Author: R. Mahadevan
Bench: R.Mahadevan, Mohammed Shaffiq
W.A.Nos.1156 and 1173 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.12.2023
CORAM :
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
and
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
Writ Appeal Nos.1156 and 1173 of 2021
and
CMP.Nos.7308 and 7441 of 2021
W.A.No.1156 of 2021:-
1. The State of Tamil Nadu,
Rep. by its Additional Chief Secretary to Government,
Labour and Employment Department,
Fort St.George, Chennai - 600 009.
2. The Director of Industrial Safety and Health,
Directorate of Industrial Safety and Health
SIDCO Industrial Estate, Guindy,
Chennai - 600 032. .. Appellants
Versus
1. R.Rajasekaran,
The Additional Director of Industrial Safety
and Health,
Madurai - 625 020.
2. M.V.Senthil Kumar,
Additional Director of Industrial Safety and Health,
O/o Additional Director of Industrial Safety
and Health SIDCO Industrial Estate,
Guindy, Chennai - 600 032. .. Respondents
https://www.mhc.tn.gov.in/judis
1/25
W.A.Nos.1156 and 1173 of 2021
Writ Appeal filed under Clause 15 of Letters Patent praying to set aside
the order dated 26.02.2021 made in WP.No.14980 of 2020.
For Appellants : Mr. P.S.Raman, Senior Advocate
for Mr.S.Yashwanth,
Additional Government Pleader
For R1 : Mr. R.Singaravelan, Senior Advocate
for Mr.V.Ravikumar
For R2 : Mr.V.Vijayshankar
W.A.No.1173 of 2021:-
M.V.Senthil Kumar,
Additional Director of Industrial Safety and Health,
O/o Additional Director of Industrial Safety
and Health SIDCO Industrial Estate,
Guindy, Chennai - 600 032. .. Appellant
Versus
1. R.Rajasekaran,
The Additional Director of Industrial Safety
and Health,
Madurai - 625 020.
2. The State of Tamil Nadu,
Rep. by its Additional Chief Secretary to Government,
Labour and Employment Department,
Fort St.George, Chennai - 600 009.
3. The Director of Industrial Safety and Health,
Directorate of Industrial Safety and Health
SIDCO Industrial Estate, Guindy,
Chennai - 600 032. .. Respondents
https://www.mhc.tn.gov.in/judis
2/25
W.A.Nos.1156 and 1173 of 2021
Writ Appeal filed under Clause 15 of Letters Patent praying to set
aside the order dated 26.02.2021 made in WP.No.14980 of 2020.
For Appellant : Mr.V.Vijayshankar
For R1 : Mr. R.Singaravelan, Senior Advocate
for Mr.V.Ravikumar
For R2 & R3 : Mr. P.S.Raman, Senior Advocate
for Mr.S.Yashwanth,
Additional Government Pleader
COMMON JUDGMENT
(Judgment of the Court was delivered by R. MAHADEVAN, J.) These two writ appeals arise from an order dated 26.02.2021 passed by the learned Judge in W.P.No.14980 of 2010. The first writ appeal viz., WA No.1156 of 2021 has been filed by the Government, whereas the second writ appeal viz., WA No.1173 of 2021 has been filed by the third respondent in the said writ petition.
2. The writ petitioner Rajasekaran is the first respondent in both the appeals; the respondent authorities in the writ petition are the appellants in WA https://www.mhc.tn.gov.in/judis 3/25 W.A.Nos.1156 and 1173 of 2021 No. 1156 of 2021 and the respondents 2 and 3 in WA No. 1173 of 2021; and the third respondent M.V.Senthil Kumar in the writ petition is the second respondent in WA No. 1156 of 2021 and the appellant in WA No. 1173 of 2021. For the sake of convenience, the parties are referred to as per their rank in the writ petition.
3. The aforesaid writ petition has been filed by the writ petitioner / first respondent in both the appeals, praying for issuance of Writ of Certiorarified Mandamus, to call for the records pertaining to the proceedings of the authorities in G.O.(D)No.497 Labour and Employment (M1) Department, dated 06.10.2020 and G.O.(D)No.498 Labour and Employment (M1) Department, dated 06.10.2020, quash the same and consequently, direct the authorities to consider his name for promotion to the post of Director of Industrial Safety and Health by including his name in the panel of Additional Director of Industrial Safety and Health, fit for promotion to the post of Director of Industrial Safety and Health for the year 2019-2020, with effect from the date of promotion given to Senthil Kumar / R2 in WA No.1156 of 2021 / appellant in WA No.1173 of 2021 with all attendant and monetary benefits.
4. It was put forth on behalf of the writ petitioner/first respondent in both the appeals, before the Writ Court that the writ petitioner is an Engineering https://www.mhc.tn.gov.in/judis 4/25 W.A.Nos.1156 and 1173 of 2021 Graduate in Mechanical Engineering and suffers from 50% disability. He was selected for appointment as Assistant Inspector of Factories in the Tamil Nadu Factory Service on 26.03.1989 and he joined duty on 05.04.1989. Subsequently, seeking regularisation, he approached the Tamil Nadu Administrative Tribunal by filing O.A.No.4 of 1991. Taking note of the facts and circumstances, the Tribunal vide order dated 27.03.1996, disposed of the Original Application, directing the competent authority to regularize his services. Pursuant to the same, his services came to be regularized with effect from the date of his appointment against 3% reservation for Physically Handicapped quota. Thereafter, he was promoted to the post of Inspector of Factories and further promoted to the post of Deputy Chief Inspector of Factories on 20.12.2010. The writ petitioner is now, working as Additional Director of Industrial Safety and Health, right from 31.08.2018.
5. The learned counsel for the writ petitioner contended before the Writ Court that the petitioner has been the senior to the said M.V.Senthil Kumar, as Deputy Director of Industrial Safety and Health and Joint Director of Industrial Safety and Health and also Additional Director. The posts of Inspector of Factories, Deputy Chief Inspector of Factories, Joint Chief Inspector of Factories, Addl. Chief Inspector of Factories and Chief Inspector of Factories have been https://www.mhc.tn.gov.in/judis 5/25 W.A.Nos.1156 and 1173 of 2021 re-designated as Deputy Director of Industrial Safety and Health, Joint Director of Industrial Safety and Health, Addl. Director of Industrial Safety and Health, Senior Additional Director of Industrial Safety and Health and Director of Industrial Safety and Health respectively. From the post of Additional Director, next promotion is to the post of Director of Industrial Safety and Health, which post is the Head of Department (HoD) (Non-IAS).
6. It was further contended by the learned counsel for the writ petitioner that the writ petitioner is the second Senior most Officer eligible to be considered and promoted to the post of Director of Industrial Safety and Health. The post of Director of Industrial Safety and Health fell vacant on retirement of the earlier incumbent K.Manoharan on 31.01.2020. According to the Special Rules for Tamil Nadu Factory Service, the post of Director of Industrial Safety and Health is to be filled up by promotion from the post of Additional Director of Industrial Safety and Health and if no eligible candidate is available in the said position from the category of Joint Director of Industrial Safety and Health. The writ petitioner, being the second Senior most, is eligible to be considered for promotion, as he is only 52 years of age. As per the Special Rules, the subject promotion is on the basis of merit and ability of the candidates, seniority being considered only whose merit and ability are approximately equal. The learned https://www.mhc.tn.gov.in/judis 6/25 W.A.Nos.1156 and 1173 of 2021 counsel further contended that despite the fact that a clear vacancy had arisen in January 2020 itself, no prompt steps had been initiated by the Government in filling up the vacant post, denying due opportunity to the writ petitioner towards consideration and appointment. While so, G.O.(D) No.497 Labour and Employment (M1) Department, dated 06.10.2020 came to be passed according approval of a temporary panel for the post of Director of Industrial Safety and Health consisting only one name of M.V.Senthil Kumar, Additional Director of Industrial Safety and Health for the year 2019-2020. On the same day, another G.O.(D).No. 498 Labour and Employment (M1) Department, dated 06.10.2020 came to be issued promoting the said Senthil Kumar as Director of Industrial Safety and Health in the existing vacancy. Being aggrieved by this promotion overlooking his seniority and meritorious service, the writ petitioner has filed the writ petition for the aforestated relief.
7. It was also contended on behalf of the writ petitioner that the manner in which the promotion of the said Senthil Kumar has been pushed through by announcing the temporary panel on 06.10.2020 and inviting appeal/objection from the seniors on the one hand and on the other, appointing him on the same day by another G.O., is a mala fide exercise of power. Further, the said proceedings do not show any inclusion of eligible officers in the panel. Even https://www.mhc.tn.gov.in/judis 7/25 W.A.Nos.1156 and 1173 of 2021 though five candidates ought to have been considered as per the Act, the said Senthil Kumar alone was included in the panel and subsequently, he was promoted on the same day. That apart, in terms of Explanation III of Section 7 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016, no temporary panel shall be prepared in respect of the posts for which the consultation of the Commission is not required. Whereas, in this case, one of the impugned proceedings, particularly G.O.(D) No.497, dated 06.10.2020 declared the panel as temporary which again is contrary to the Rule position. In the normal circumstances, only the senior most person would be considered for appointment as in-charge Director in the absence of regular appointment to the post, but in order to facilitate his appointment, the said Senthil Kumar has been posted as in-charge Director and has been allowed to work for about 9 months paving way for his regular appointment through the orders dated 06.10.2020 impugned in the writ petition. It was also submitted that the petitioner being Orthopaedically handicapped, is also entitled to be considered against disability quota apart from his merit, ability and seniority.
8. It was contended on the side of the authorities before the Writ Court that the appointing authority has followed the usual procedure which normally precede such appointment. Totally four officers have been considered by the https://www.mhc.tn.gov.in/judis 8/25 W.A.Nos.1156 and 1173 of 2021 competent authority and in the process of consideration, the competent authority found that the said Senthil Kumar was having merit and ability and therefore, he has been ultimately chosen for the appointment. As far as the writ petitioner is concerned, though he is senior as on date, as per the relevant Rules, merit and ability are the primary criteria and only if the candidates are found to be approximately equal in merit and ability, their seniority would have precedence. As far as the appointment of the said Senthil Kumar is concerned, merit and ability has been assessed on the basis of Annual Confidential Records for the past 5 years, which revealed that he has better ratings than the petitioner. Therefore, the promotion of Senthil Kumar cannot be questioned as being invalid. It was also submitted that the Department has been following the same procedure of empanelling only the number of candidates proportionate to the number of vacancies to be filled up and in all cases, the panel name is published and on the same date, promotion is also notified.
9. The learned counsel appearing for the third respondent in the writ petition viz., Senthil Kumar submitted before the Writ Court that the Department has been preparing only temporary panels for all the promotions. According to the learned counsel, various officers have been considered including the petitioner and on such consideration, the said Senthil Kumar was found to be https://www.mhc.tn.gov.in/judis 9/25 W.A.Nos.1156 and 1173 of 2021 more meritorious. He also submitted that zone of consideration that is fixed under proviso (5) of Section 7, has nothing to do with the panel. Schedule XI appended to Section 7, the basis of assessment of merit and ability is the ACR of 5 relevant years and in consideration of the ratings of the ACRs, the said Senthil Kumar has been found having better grading than the petitioner.
10. A detailed re-joinder affidavit has also been filed along with additional typed set of papers on the side of the writ petitioner before the writ court. It was submitted that it is not open to the authority to rely on un-communicated ACRs and reject the candidature of the petitioner; and that, the delay in preparation of the panel was contrary to those G.Os.
11. After hearing all the parties, the learned Judge held that announcing the appointment on the same day of the empanelment is grossly unjust, arbitrary and adoption of such procedure even if it leads to the appointment of the right Officer, it would become too easily vulnerable to judicial challenge. It was also observed that G.O.(Ms).No.368 Personnel and Administrative Reforms Department dated 18.10.1993 provides a detailed procedure for preparation of the panel of officers at various levels. The learned Judge also expressed shock and surprise that in none of the original ACRs produced for perusal pertaining to the https://www.mhc.tn.gov.in/judis 10/25 W.A.Nos.1156 and 1173 of 2021 4 officers, the columns for views of the Accepting Authority have been obtained and it has been left completely blank and that, apart from the fact of the incompleteness of the ACRs, many of the ACRs appear to be not properly dated or signed. That apart, the learned Judge, after perusal of the files, was of the view that procedural relaxation has been obtained from the competent authority in relation to Explanation III of Section 7 of the Act that preparation of temporary approval. In the light of these things, the learned Judge held that the appointment/promotion of the said Senthil Kumar cannot be countenanced in law.
12. While so, setting aside the impugned proceedings, the learned Judge directed the Government to evolve a fair procedure in the process of assessment of inter-se merit and ability of the Officers, without giving any room or scope for possible abuse in the future selection. The Government was also directed to constitute a high power Committee comprising eminent administrators with vast experience for framing definite and proper guidelines in order to evolve proper standards of benchmark to be applied uniformly in respect of appointments to all selection posts and on the basis of the Report of the Committee, action could be initiated for filling up of the post of Director of Industrial Safety and Health. It was also directed that the writ https://www.mhc.tn.gov.in/judis 11/25 W.A.Nos.1156 and 1173 of 2021 petitioner has to be posted as Director In-charge in transition for securing the ends of justice. The authorities were directed to fill up the post of Director in the meanwhile by appointing the writ petitioner as In-charge Director, till a regular selection is conducted and concluded and appointment made in terms of the suggestions of this Court.
13. Challenging the order so passed by the Writ Court, the present two writ appeals have been filed by the Government and the said Senthil Kumar.
14. Mr.P.S.Raman, learned senior counsel appearing for the authorities / appellants in W.A.No.1156 of 2021 submitted that the learned Judge has failed to consider the ACR of the officers, wherein the said Senthil Kumar was found meritorious and hence, he was empanelled and appointed by the orders issued on 06.10.2020. The learned senior counsel further submitted that in terms of the Special Rules for the Tamil Nadu Factory Service, the post of Director is a selection post and appointment to the same is primarily on merit and ability. However, the learned Judge has erred in holding that a post-decisional hearing amounted to hoodwinking the procedural fairness. It is also submitted that the recommendations of the learned Judge that a High Power Committee has to be constituted for evolving proper parameters and procedures for the appointment to https://www.mhc.tn.gov.in/judis 12/25 W.A.Nos.1156 and 1173 of 2021 the post of Heads of Department, amounts to encroaching into the domain of the legislature. Referring to the decision of the Hon'ble Supreme Court in M.V.Thimmaiah and others v. UPSC and others [(2008) 2 SCC 119], the learned senior counsel submitted that the scope of judicial review of an administrative action is very limited.
14.1. Continuing further, the learned senior counsel appearing for the authorities submitted that in appointments / promotions to a selection post, the element of supersession is inherent and implicit; and that, there were no mala fides attributed or pleaded. However, the learned Judge has erred in interfering with the selection and issuing certain directions. It is also submitted that promotion or appointment to the Head of the Department does not warrant schedule of time, especially, when the option of post decisional hearing has been provided for; and that, in the post of Director of Industrial Safety and Health, the consistent practice adopted has been that of Drawing up of panel and issuing promotion order on the same day. Without considering the same, the learned Judge erred in rendering a finding that publication of panel and issuance of promotion order on the same day is in violation of the principles of natural justice. The learned senior counsel further submitted that Annual Confidential Report is an important document and it provides basic and vital inputs about the https://www.mhc.tn.gov.in/judis 13/25 W.A.Nos.1156 and 1173 of 2021 work output, personal attributes, functional competency and integrity of the officer. Therefore, the grading given in the ACRs of the officers in the zone of consideration was considered and in consideration of the gradings, assessment was made and accordingly, as per merit and ability, the said Senthil Kumar was selected by the appointing authority. Therefore, the absence of counter signature by the accepting authority cannot eradicate or invalidate the gradings given by the Reporting / Review officers. Finally stating that all the reasons assigned by the learned Judge are unsustainable, the learned senior counsel prayed this Court to allow the appeal by setting aside the impugned order.
15. The learned counsel for the appellant in W.A.No.1173 of 2021 viz., Senthil Kumar, made his submissions on the similar lines as put forth by the learned senior counsel appearing for the Government authorities. Adding further, it is submitted that the appellant herein is a direct recruit Inspector of Factories at which point of time the writ petitioner was only a temporary 10(a)(i) appointee in the lower post of Assistant Inspector of Factories. Further, there was no violation of the procedural formalities as contemplated in the Tamil Nadu Government Servants (Conditions of Service Act) 2016 or the Special Rules. That apart, the seniority of the parties has not reached finality as the issue is very much pending adjudication in WA No. 1272 of 2010 etc. cases. Therefore, the learned counsel https://www.mhc.tn.gov.in/judis 14/25 W.A.Nos.1156 and 1173 of 2021 submitted that the order passed by the learned Judge will have to be quashed.
16. On the contrary, the learned senior counsel for the first respondent in both the appeals / writ petitioner reiterated the contentions made before the writ court and submitted that the first respondent has rendered more than 31 years of unblemished service to the department and he earned many meritorious rewards including an award for 25 years for his meritorious service and so far, he has not suffered with any punishment and adverse remarks; and that, he is senior most eligible candidate. Ignoring all these things, the appellant in WA. No. 1173 of 2021 viz., Senthil Kumar, was considered for promotion by the authorities, which causes grave injustice and mental agony to the first respondent. Considering all these facts and circumstances of the case, the learned Judge has rightly passed the impugned order and hence, the same does not require any interference in the hands of this Court.
17. Heard the learned counsel appearing for all the parties and perused the materials available on record carefully and meticulously.
18. On 20.04.2021, when these appeals were taken up for https://www.mhc.tn.gov.in/judis 15/25 W.A.Nos.1156 and 1173 of 2021 consideration, this court, after pointing out the grounds on which the orders impugned in the writ petition were interfered with, directed that the ACRs pertaining to the four officers viz., (i)Thiru K.Jagadeesan, Addl.Director of Industrial Safety and Health, Coimbatore; (ii) Thiru R.Rajasekaran, Addl.Director of Industrial Safety and Health, Madurai; (iii)Thiru M.V.Senthil Kumar, Addl.Director of Industrial Safety and Health, Chennai; and
(iv)Tmt.G.Poongodi, Addl.Director of Industrial Safety and Health, Salem, be placed before the Accepting Authority, who shall take into consideration the contents of G.O.No.121 P&AR Department, dated 29.09.2011 and record his comments / ratings within a period of four weeks and place the same before this court. While so, this court, taking note of the fact that the appellant in WA. No. 1173 of 2021 viz., Senthilkumar, has been graded higher than the first respondent / writ petitioner, was of the view that he can be put in-charge of Director of Industrial Safety and Health, until further orders, making it clear that the same is subject to the result of the writ appeals. The relevant passage of the same is usefully extracted below:
"14.As already noted, the learned Single Judge had found in paragraph No.38 that no mala fide could be attributed in the present selection in that aspect and in the light of the fact that the 2nd respondent in W.A. No. 1156/2021 / appellant in W.A. No.1173/2021 has been graded higher than the 1st respondent / writ petitioner, as he has got four https://www.mhc.tn.gov.in/judis 16/25 W.A.Nos.1156 and 1173 of 2021 outstanding ratings, this Court is of the prima facie view that the 2 nd respondent in W.A. No.1156/2021/ appellant in W.A. No.1173/2021 can be put in-charge Director of Industrial Safety and Health until further orders and it is also made clear that the said interim order is subject to the result of the above writ appeals and the 2nd respondent in WA No.1156/2021 / appellant in WA No.1173/2021 cannot claim any equity or right on the basis of this interim order."
19. The aforesaid interim order has been complied with and the ACRs pertaining to the four officers concerned have also been placed for persual of this court.
20. Before proceeding further, it may be relevant to refer to the following decisions of the Hon'ble Supreme Court with respect to legal position in service jurisprudence.
(i)Chandigarh Admn. v. Usha Kheterpal Waie & Ors. [(2011) 9 SCC 645]:
"...it is for the rule-making authority or the appointing authority to prescribe the mode of selection and minimum qualification for any recruitment; the Courts and tribunals can neither prescribe the qualifications nor entrench upon the power of the concerned authority so long as the qualifications prescribed by the employer is reasonably relevant and has a rational nexus with the functions and duties attached to the post and are not violative of any provision of Constitution, statute and Rules; and in the absence of any rules, under Article 309 or Statute, the appellant had the power to appoint under its general power of administration and prescribe such eligibility criteria as it is considered to be necessary and reasonable."
(ii) State of Gujarat & Ors. vs. Arvindkumar T.Tiwari and another [2012 (9) SCC 545] “12.Fixing eligibility for a particular post or even for admission https://www.mhc.tn.gov.in/judis 17/25 W.A.Nos.1156 and 1173 of 2021 to a course falls within the exclusive domain of the legislature/executive and cannot be the subject matter of judicial review, unless found to be arbitrary, unreasonable or has been fixed without keeping in mind the nature of service, for which appointments are to be made, or has no rational nexus with the object(s) sought to be achieved by the statute. Such eligibility can be changed even for the purpose of promotion, unilaterally and the person seeking such promotion cannot raise the grievance that he should be governed only by the rules existing, when he joined service. In the matter of appointments, the authority concerned has unfettered powers so far as the procedural aspects are concerned, but it must meet the requirement of eligibility etc. The court should therefore, refrain from interfering, unless the appointments so made, or the rejection of a candidature is found to have been done at the cost of ‘fair play’, ‘good conscious’ and ‘equity’.
(iii) Union of India & another vs Kartick Chandra Mondal & another [(2010) 2 SCC 422]:
“25. ..If an appointment is made illegally or irregularly, the same cannot be the basis of further appointment. An erroneous decision cannot be permitted to perpetuate further error to the detriment of the general welfare of the public or a considerable section. This has been the consistent approach of this Court. However, we intend to refer to a latest decision of this Court on this point in the case of State of Bihar v. Upendra Narayan Singh & others [(2009) 5 SCC 69], the relevant portion of which is extracted hereinbelow:
"67. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order.."
[A reference in this regard may also be made to the earlier decisions of this Court. See also: 1)Faridabad CT Scan Centre v. D.G Health Services and others [(1997) 7 SCC 752]; (2) South Eastern Coalfields Ltd v. State of M.P and others [(2003) 8 SCC 648] and 3) Maharaj Krishnan Bhatt and another v. State of J&K and others [(2008) 9 SCC 24]”
(iv)Pankjeshwar Sharma vs State of J&K [(2021) 2 SCC 188] https://www.mhc.tn.gov.in/judis 18/25 W.A.Nos.1156 and 1173 of 2021 "24. It is a settled principle of service jurisprudence and has been consistently followed by this Court that the rules of recruitment to various services under the State or to a class of posts under the State, the State is bound to follow the same and to have the selection of the candidates to be made as per the scheme of recruitment rules and appointments shall be made accordingly. At the same time, all the efforts shall be made for strict adherence to the procedure prescribed under the recruitment rules. On the contrary, if any appointments are made bypassing the recruitment procedure known to law, will resulted in violation of Article 14 and 16 of the Constitution."
Thus, it is clear that the authorities possess exclusive power in matters of appointment or promotion, and that, the courts must refrain from intervening, unless the process is found arbitrary. It is further clear that the authorities are bound to follow the rules / procedures prescribed under the statute for recruitment / appointment.
21. Keeping the above in mind, this court is inclined to examine the issue involved herein. Before the writ court, the writ petitioner questioned the very procedure adopted by the authorities in announcing the panel containing only one name of Senthil Kumar, vide G.O.(D) No.497 dated 06.10.2020 and on the same day, promoting him to the post in question, in the existing vacancy, vide G.O.(D) No.498 dated 06.10.2020. On the other hand, the authorities stated that 4 https://www.mhc.tn.gov.in/judis 19/25 W.A.Nos.1156 and 1173 of 2021 eligible candidates as on the crucial date i.e., on 15.04.2020, were considered and inter se assessment was made and the said Senthil Kumar found to be relatively meritorious than the other candidates and therefore, his name was included and he was promoted. It is also stated that the process followed so far has been the consistent practice in the Department and therefore, the impugned appointment cannot be interfered with.
22. On a perusal of the order impugned herein, it is seen that the learned Judge, after analysing the files produced by the department, found that no mala fides could be attributed in the present selection of the said Senthil Kumar alone to the post in question, on factual consideration. However, it was observed that when the procedure adopted all along is found to be not in order in compliance with fairness and good faith in making the appointment, such procedure has to be necessarily discontinued. The learned Judge further observed that the impugned proceedings pertaining to the promotional panel comprising of just one person are directly hit by G.O. (Ms) No. 368 dated 18.10.1993 for two reasons viz., one, the G.O. clearly states that there must be at least two persons in the panel and secondly, the panel was constituted at about 10 months from the date of retirement of the incumbent in January 2020, while the G.O. prescribes https://www.mhc.tn.gov.in/judis 20/25 W.A.Nos.1156 and 1173 of 2021 that the process must be initiated at least three months in advance from the prospective date of retirement of the existing incumbent. The writ Court also found that the ACRs of the concerned eligible officers were not circulated to the Accepting authority for them to record their views and were also incomplete. Therefore, finding serious lapses in the procedure followed by the authorities in appointing the said Senthil Kumar, the learned Judge quashed the impugned proceedings viz., G.O.(D) Nos. 497 and 498 dated 06.10.2020, by which the said Senthil Kumar was appointed as Director of Industrial Safety and Health and consequently finding that the Writ petitioner was senior to him, he was directed to be posted as Director in-charge till regular selection is conducted.
23. This court is of the opinion that the learned Judge after analysing the facts and circumstances of the case as well as the records produced by the authorities, has rightly observed that the procedure adopted by the authorities in respect of appointment to the post of Director of Industrial Safety and Health, is arbitrary, incorrect and bad in law and hence, the same does not require any interference. Following the above legal position, this court is not inclined to express any opinion on the ACRs pertaining to the four officers concerned and it is for the department to consider the same, while taking a decision, for appointment to the post in question.
https://www.mhc.tn.gov.in/judis 21/25 W.A.Nos.1156 and 1173 of 2021
24. However, the order of the learned Judge in directing the authorities to appoint the writ petitioner to the post in question, as an interim measure, has been subsequently, modified by this court to the effect that the appellant in WA. No. 1173/2021 viz., Senthil Kumar, be put in-charge as Director of Industrial Safety and Health, until further orders, by order dated 20.04.2021. For the administrative convenience, the said interim order which was not appealed, need not be disturbed till a regular selection is concluded and appointment is made by the authorities.
25. In view of the above, this Court directs the authorities / appellants in W.A.No.1156 of 2021 / 2nd and 3rd respondents in W.A.No.1173 of 2021, to fill up the post of Director of Industrial Safety and Health by way of a regular selection and appointment, following the relevant rules. Such an exercise shall be completed within a period of six weeks from the date of receipt of a copy of this judgment.
26. With the aforesaid observation and direction, both the writ appeals are disposed of. No costs. Consequently, connected miscellaneous petitions are closed.
https://www.mhc.tn.gov.in/judis 22/25 W.A.Nos.1156 and 1173 of 2021 [R.M.D., J.] [M.S.Q., J.] 21.12.2023 Index : Yes / No Internet : Yes / No rk To 1. The Additional Chief Secretary to Government, Labour and employment Department, Fort St.George, Chennai - 600 009. 2. The Director of Industrial Safety and Health, Directorate of Industrial Safety and Health SIDCO Industrial Estate, Guindy, Chennai - 600 032. https://www.mhc.tn.gov.in/judis 23/25 W.A.Nos.1156 and 1173 of 2021 R. MAHADEVAN, J and MOHAMMED SHAFFIQ, J rk Writ Appeal Nos.1156 and 1173 of 2021 and CMP.Nos.7308 and 7441 of 2021 https://www.mhc.tn.gov.in/judis 24/25 W.A.Nos.1156 and 1173 of 2021 21.12.2023 https://www.mhc.tn.gov.in/judis 25/25