Madras High Court
R.Sridhar vs N.Mahalingam on 6 March, 2023
Author: S.S.Sundar
Bench: S.S. Sundar, C.Saravanan
WA.Nos.1027 & 2308/2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 23.01.2025 Delivered on 29.04.2025
CORAM
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
AND
THE HONOURABLE MR. JUSTICE C.SARAVANAN
WA.Nos.1027 & 2308/2022 & CMP.Nos.10370, 17641, 21771/2022 &
5739/2023
WA.No.1027/2022:-
1.R.Sridhar
2.G.P.Paramaguru
3.T.Elaiyaraja
4.G.Srinivasan
5.s.Malligeswaran
6.V.A.Raja ... Appellants / RR 3,6,10,
19 to 21
Vs.
1.N.Mahalingam
2.M.Kanchana
3.V.Kala
4.D.Latha
5.A.Mohan Dass
6.T.Karthi
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WA.Nos.1027 & 2308/2022
7.N.Lingeswaran
8.P.Senthil Kumar
9.I.Shankar
10.K.Napoleon ... Respondents / Petitioners 1 to 10
11.The Government of Tamil Nadu
rep.by its Secretary,
Commercial Taxes and Registration Department
Fort St George, Chennai 600 009.
12.The Inspector General of Registration
O/o.The Inspector General of Registration
No.100, Santhome High Road,
Chennai 600 028.
13.N.Santhakumar
14.T.Daivasigamani
15.S.Subramanian
16.S.Gunasekaran
17.S.Soundarapandian
18.V.Kalavathi
19.G.Ashok Kumar
20.C.Boopathy Kannan
21.M.Sheik Abdullah
22.R.Senthil Kumar
23.S.Elangovan
24.J.Shantha Maria
25.M.Pandian
26.N.Ganesh ...Respondents / RR 1, 2,
4, 5, 7 to 9, 11 to 18, 22
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WA.Nos.1027 & 2308/2022
WA.No.2308/2022:-
1.M.Sheik Abdullah
2.S.Ilangovan
3.N.Ganesh ... Appellants / RR
14,16,22
Vs.
1.N.Mahalingam
2.M.Kanchana
3.V.Kala
4.D.Latha
5.A.Mohan Dass
6.T.Karthi
7.N.Lingeswaran
8.P.Senthil Kumar
9.I.Shankar
10.K.Napoleon ... Respondents /
Petitioners 1 to 10
11.The Government of Tamil Nadu
rep.by its Secretary,
Commercial Taxes and Registration Department
Fort St George, Chennai 600 009.
12.The Inspector General of Registration
O/o.The Inspector General of Registration
No.100, Santhome High Road,
Chennai 600 028.
13.R.Sridhar ... RR 11 to 13 /
RR 1 to 3
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WA.Nos.1027 & 2308/2022
14.N.Santhakumar
15.T.Daivasigamani
16.G.P.Paramaguru
17.S.Subramanian
18.S.Gunasekaran
19.S.Soundarapandian
20.T.Elaiyaraja
21.V.Kalavathi
22.G.Ashok Kumar
23.C.Boopathy Kannan ... RR 14 to
23 / RR 4 to 13
24.R.Senthil Kumar
25.J.Shanthamaria
26.M.Pandian
27.G.Srinivasan
28.S.Malligeswaran
29.V.A.Raja ... RR 25 to 29 /
RR 17 to 21
30.R.Baskar
**R30 impleaded vide order dated 06.03.2023 in
CMP.No.1744/2023 in WA.No.2308/2022
31.K.Meenakshi Sundaram
32.B.Vairamani
33.B.Jhansi
34.Menaka
35.K.Kasthuri
36.N.Mohanraj
37.K.Mahendran
38.P.Sokkalingam
39.G.Jayanthi
40.P.Manoharan
41.K.Asaithambi
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42.J.Suman Prabhu
43.M.Ravichandran
44.S.Jagatheesan
45.G.Anitha
46.K.Hariharan
47.M.Lokeshbabu
48.J.Prabu
49.S.Shoban Babu
50.B.Gopi
51.M.Velu ... RR 31 to 51
**RR31 to 51 impleaded vide order dated 06.03.2023 in
CMP.No.1784/2023 in WA.No.2308/2022
Common Prayer : Writ Appeals filed under Clause 15 of Letters Patent
against the order dated 03.03.2022 made in WP.No.23342/2019.
For Appellants in
WA.No.1027/2022 : Mr.A.Palaniappan
For Appellants in
WA.No.2308/2022 :Mr.M.Ravi
For RR1, 2, 8 to 10 in
WA.No.1027/2022 &
For RR1, 2, 9, 10, 30 to
51 in WA.No.2308/2022 : Mr.V.Prakash, Senior counsel for
Mr.K.Krishnamoorthy
For R3 in both Appeals : Mr.V.Neethidurai
For R1T 11 & 12 in
both the appeals : Mr.R.Neelakandan, AAG assisted
by Mr.B.Vijay, AGP
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COMMON JUDGMENT
S.S.SUNDAR, J.,
(1)The private respondents in WP.No.23342/2019 have filed the above writ
appeals as against the order of the learned Single Judge dated 03.03.2022
allowing the writ petition filed by the Assistants in the Registration
Department, who were directly recruited in the year 2012 pursuant to the
recruitment process which commenced in the year 2010.
(2)Respondents 3, 6, 10, 19 to 21 in the writ petition have preferred the writ
appeal in WA.No.1027/2022 and respondents 14, 16 and 22 in the writ
petition have preferred the writ appeal in WA.No.2308/2022.
(3)Brief facts that are necessary for the disposal of these appeals are as
follows:-
(a) The contesting respondents in these appeals are the private
respondents 1 to 10 who are writ petitioners in the writ petition. For
convenience, they are referred to as ‘writ petitioners’.
(b) The Tamil Nadu Public Service Commission [in short ‘TNPSC’]issued
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WA.Nos.1027 & 2308/2022a Notification in the year 2010 calling for applications for direct
recruitment to various posts in different Departments of the
Government including Registration Department. In the Recruitment
Notification, number of vacancies for post of Assistant in Registration
Department were notified as 320 and it is stated that the recruitment is
to fill up vacancies of the year 2010-11.
(c) The appellants were appointed as Junior Assistants in the Registration
Department on compassionate ground by proceedings dated
06.03.2007 and their services as Junior Assistants had been
regularised in the year 2012 or thereafter, but promoted as Assistants
with retrospective effect. In the order of appointment dated
06.03.2007, it is stated that the appointment of appellants under
10[a][i], is purely temporary. All the appellants were appointed in
different Districts of the State as seen from the proceedings dated
06.03.2007 issued by the Inspector General of Registration.
(d) As stated earlier, respondents 1 to 10 herein who are writ petitioners,
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were appointed by way of direct recruitment through TNPSC as
Assistants in the vacancies arising upto 2010. However, after the
recruitment process, appointment orders were issued on 18.12.2012.
They also commenced their probation from 18.12.2012 in the post of
Assistant. On 28.08.2012, the 6th appellant in WA.No.1027/2022 by
name V.A.Raja, was regularised in the post of Junior Assistant with
effect from 28.08.2012 and commenced his probation in the post of
Junior Assistant. On 21.11.2012, the appellants were directed to go
for Bhavani Sagar Training Programme from 14.12.2012 to
11.02.2013 upon regularisation in the cadre of Junior Assistant. On
01.07.2013 vide G.O.[3D] No.7, the probation of the appellants were
declared in the post of Junior Assistant. On 06.01.2014, further
proceedings were issued by appointing the appellants as Assistants
[nearly two years after the appointment of writ petitioners as
Assistants]. On 07.11.2014, proceedings were issued regularising
services of appellants in the post of Assistants with effect from
10.01.2014 as their services were treated as on ‘ad hoc’ basis till then.
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Originally, a seniority list for the post of Assistant, was published on
07.06.2016 and on 02.02.2018, whereby the writ petitioners who
were direct recruitees in the post of Assistants, were placed below the
appellants herein who were originally appointed on ad-hoc basis in
the post of Junior Assistant and who were promoted to the post of
Assistant only in the year 2014. Therefore, the writ petitioners who
were recruited directly in the post of Assistant in the year 2012, and
placed below the appellants in the seniority list, filed
WP.No.23342/2019 for issuance of a writ of certiorarified mandamus,
to quash the impugned proceedings dated 07.06.2016 and the
consequential seniority list dated 02.02.2018 insofar as the placement
of writ petitioners in the seniority list below the 1st appellant herein
and others and to direct the official respondents, namely, respondents
11 and 12 herein to treat the writ petitioners as seniors to the
appellants and others of the same class and to direct the official
respondents to issue orders of promotion to the writ petitioners to the
post of Sub Registrar Grade II.
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(e) The writ petition was contested by the appellants herein on various
grounds. The learned Single Judge of this Court extensively
considered the pleadings and arguments of the writ petitioners as well
as the contesting respondents/appellants herein and rejected the
contentions of the appellants herein. The contention of the appellants
by referring to the retrospective promotion to the post of Assistant
was rejected by the learned Single Judge, as the appellants cannot
claim themselves as being appointed regularly in the post of
Assistant, affecting the seniority of the writ petitioners. Relying upon
the judgment of Hon’ble Supreme Court in the case of V.Sreenivasa
Reddy and Others Vs. Government of A.P. and Others in Civil
Appeal Nos.6575 to 6580/1994 dated 05.10.1994, the learned Single
Judge held that the appellants who are temporary appointees though
regularised at certain point of time, may count their earlier services
for other benefits, but their retrospective regularisation, cannot be
relied upon for the purpose of their seniority as against the regular
appointees like the writ petitioners.
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(f) Similarly, yet another decision of Hon’ble Supreme Court in the case
of M.P.Palanisamy and Others Vs. A.Krishnan and Others in Civil
Appeal Nos.3582 to 3582/2009 was also relied upon by the learned
Single Judge to reiterate the principle that regular Assistants who
were directly recruited through TNPSC, cannot be superseded by
compassionate ground Assistants appointed temporarily even if they
are appointed earlier to the direct recruitees.
(g) The learned Single Judge of this Court allowed the writ petition and
held that the writ petitioners are entitled to the relief and held that the
impugned proceedings dated 07.06.2016 and the consequential
seniority list dated 02.02.2018 are liable to be set aside. A further
direction was also issued as prayed for in favour of the writ
petitioners. Aggrieved by the order of the learned Single Judge dated
03.03.2022 allowing the writ petitions, the above appeals have been
preferred.
(4)Originally, the 3rd respondent in the writ petition, was shown in the writ
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petition as one representing the class of promotee Assistants who have
been notionally promoted as Assistants with effect from 11.06.2010 and
shown in the seniority list of Assistants dated 02.02.2018 from
Sl.Nos.113 onwards. Subsequently, the appellants got themselves
impleaded as respondents 4 to 22 during the pendency of the writ
petitions. The private respondents who got themselves impleaded in the
writ petition later, filed the above writ appeals.
(5)The learned counsel for the appellants raised the following grounds:-
i. The appellants though were appointed on compassionate ground in
the year 2007, were regularised in the post of Junior Assistant in
the year 2012 before the date of appointment of the writ
petitioners on 18.12.2012 and they were subsequently promoted
with retrospective effect in the post of Assistant considering their
length of service.
ii. The writ petitioners were recruited in the quota reserved for them
and they are not given any promotional avenue as per the Rules
which are in vogue at the time of their recruitment. Hence, their
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WA.Nos.1027 & 2308/2022claim that they should be placed above the appellants has to be
rejected.
iii. The appellants were regularised in the post of Junior Assistant
with effect from 20.07.2012 and the same is before the date of
appointment of the writ petitioners on 18.12.2012. Since the writ
petitioners were appointed in the quota meant for them as
provided in G.O.Ms.No.47 dated 09.04.2010, it should be
understood that the writ petitioners cannot claim promotion as a
matte or right in the absence of specific Rule conferring them the
right of promotion.
iv. The delay in giving actual promotion to the appellants was purely
on account of administrative delay in sending the appellants to
Bhavanisagar Training and that therefore, their seniority above the
writ petitioners is very well justified.
v. Reiterating the points that are raised in the grounds of appeals, the
learned counsels appearing for the appellants justified the
retrospective regularization of the appellants in the post of
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WA.Nos.1027 & 2308/2022Assistant also on the ground that the appellants were directed to
go for Bhavanisagar Training Programme from 14.12.2012 to
11.02.2013 on their regularization in the cadre of Junior Assistant
on the said date and the appellants are not responsible for the long
delay in sending them for Bhavanisagar Training Programme or
keeping them in the post of Junior Assistant for a long time.
vi. Since the appellants were regularized in the post of Assistant with
retrospective effect, the official respondents have considered them
as senior to the writ petitioners having regard to the fact that they
have been recruited in the post of Junior Assistant even in the year
2007 and the delay in declaring their probation and notional
promotion, cannot be a factor which would enable the writ
petitioners to march over the appellants.
vii.Learned counsels also submitted that the appellants would be put
to serious prejudice if they are brought down in the seniority list
below the writ petitioners without considering their meritorious
service in the Registration Department from the year 2007.
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(6)Mr.V.Prakash, learned Senior counsel appearing for the writ petitioners
reiterated the points canvassed by him before the learned Single Judge
and relied upon a few precedents to strengthen the views of learned
Single Judge while allowing the writ petition.
(7)To appreciate the arguments that are advanced, this Court is inclined to
summarise the following facts which are not in issue:-
A) The Tamil Nadu Ministerial Service Rules is the special rule
governing the services of Typists, Steno-Typists, Junior Assistants
and Assistants. The Tamil Nadu State and Subordinate Service
Rules [in short ‘TNSSS Rules’] is the general rule applicable to all
the posts. Under the TNSSS Rules, a person is said to be
‘appointed to a service’ when in accordance with the Rules, he
discharges for the first time, the duties of a post borne on the
cadre of such service or commences probation or training
prescribed for members thereof. As per proviso of Rule 23[a][i],
the date so determined by Appointing Authority to commence
probation shall not be earlier than the date of commencement of
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WA.Nos.1027 & 2308/2022probation of the junior-most person already in service. As per
Rule 36[a], no member of a service or class of a service shall be
eligible for promotion from the category in which he was
appointed to the service unless he has satisfactorily completed the
probation in that category. As per Rule 36[b][i], promotion to any
class to a selection category or to a selection grade, shall be made
on grounds of merit and ability, seniority being considered only
where merit and ability are approximately equal.
B) The inter-se seniority among the persons found suitable for such
promotion shall be with reference to the inter-se seniority of such
persons in the lower post.
C) Rule 35[aa] of TNSSS Rules is important and it reads as follows:-
”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 a16
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WA.Nos.1027 & 2308/2022punishment be determined with reference to
the date on which he is appointed to the
services, class, category or grade.
D) Under Rule 10[a][i][1], the Appointing Authority may temporarily
appoint a person, who possesses the prescribed qualification for
the post, where it is necessary in public interest due to emergency
to fill immediately a vacancy in a post born on the cadre of a
service, class or category to avoid undue delay in making such
appointments. A person who is appointed purely on temporary
basis, shall not be recruited as a probationer in such service, class
or category or be entitled by reason only on such appointment to
any preferential claim to future appointment to such service, class
or category.
E) Similarly, under Rule 39[a][i], the Appointing Authority may
temporarily promote a person who possesses the qualifications
prescribed for the post in public interest owing to emergency to fill
a vacancy in a post borne on the cadre of a higher category in a
service or class by promotion from a lower category.
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F) Rule 39[e] which reads as follows:-
”A person promoted under sub-rule [a],
[b] or [d] shall not be regarded as a probationer in the
higher category or be entitled by reason only of such
promotion to any preferential claim to future promotion
to such higher category. The services of a person
promoted under sub-rule [a], [b] or [d] shall be liable
to be terminated by the appointing authority at any
time without notice and without any reason being
assigned.”G) The writ petitioners were appointed as Assistants on 18.12.2012
through a regular recruitment process initiated by Tamil Nadu
Public Service Commission in 2010. The appellants were
appointed on compassionate grounds on temporary basis vide
proceedings dated 06.03.2007. Vide G.O.Ms.No.47 dated
09.04.2010, the Government of Tamil Nadu took a policy decision
to earmark 50% of the substantive vacancies in the post of
Assistant in the Registration Department under direct recruitment,
on regular basis through TNPSC. The ‘qualification of any degree’
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WA.Nos.1027 & 2308/2022was prescribed by the Government. The Inspector General of
Registration was requested to send necessary amendment to the
special rules for Tamil Nadu Ministerial Service in the matter.
H) Following G.O.Ms.No.47 dated 09.04.2010, the Government
based on the proposal submitted by the Inspector General of
Registration, granted exemption for filling up the vacancies for the
post of Assistant by direct recruitment through TNPSC since the
service rules had not been amended. Thereafter, TNPSC issued
recruitment notification for the post of Assistant in the Tamil Nadu
Ministerial Service including 320 posts of Assistants in the
Registration Department. Vide G.O.Ms.No.56 dated 17.04.2012,
the Government issued amendments to the Special Rules for the
Tamil Nadu Ministerial Service to fill up 50% of the vacancies in
the post of Assistant by direct recruitment. While approving the
amendment, the Government has also stated in the said
Government Order that the inter-se seniority between the directly
recruited Assistants and the Assistants appointed by promotion,
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shall be as per the provisions laid down in Rule 35[aa] of the
General Rules for the Tamil Nadu State and Subordinate Services.
It was also stated that a directly recruited Assistant shall be
eligible for promotion to any selection category post provided he
has successfully completed his probation and has also passed the
prescribed tests. It is admitted that the writ petitioners have
passed the prescribed tests. Therefore, the writ petitioners are
entitled to count the seniority from the date of their appointment as
Assistants, i.e., 18.12.2012, when none of the appellants had born
in the post of ‘Assistant’.
I) As stated earlier, the 6th appellant in WA.No.1027/2022 by name
V.A.Raja, was regularised in the post of Junior Assistant vide
G.O.[2D] No.141 dated 20.07.2012 with effect from the date of
joining the service, i.e., 15.03.2007. However, the regularization
is also subject to completion of Bhavanisagar Training as required
under Rule 34[a]. By proceedings dated 21.11.2012, the
appellants were directed to undergo Bhavanisagar Training and
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were directed to be relieved so that they would be able to report
for training on 13.12.2012. It was at that time, the writ petitioners
were selected and by proceedings dated 18.12.2012, they were
appointed in the post of Assistant subject to usual conditions. It is
not in dispute that the probation of the writ petitioners was
declared in due course. By proceedings dated 01.07.2013, vide
G.O.[3D] No.7, the probation of 13 of Junior Assistants who were
originally appointed on temporary basis in the year 2007, was
declared on completion of Bhavanisagar Training on 11.02.2013.
By proceedings dated 06.01.2014 issued by the Inspector General
of Registration, the Junior Assistants who were appointed in the
year 2007 on compassionate ground, were appointed as Assistants
in the respective Revenue Districts. A further direction was also
issued by the Inspector General of Registration to issue
appointment orders after relieving the concerned individuals.
J) By proceedings dated 21.10.2013, the appointment of writ
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petitioners in the post of Assistants was regularised and thereafter,
vide proceedings dated 18.03.2016, the probation of the writ
petitioners was declared in the post of Assistant. However, vide
impugned proceedings dated 07.06.2016, the seniority list was
released wherein the writ petitioners were shown as juniors to the
appellants herein in the post of Assistant.
(8)On the admitted facts and events above referred to, it cannot be disputed
that the writ petitioners were selected on 28.08.2012 as Assistants and
appointed vide proceedings dated 18.12.2012. On completion of
probation, the writ petitioners are deemed to be in service on regular basis
with effect from 18.12.2012. It is also not in dispute that the appellants
were appointed in the post of Assisstant only on 06.01.2014 and their
services in the post of Assistant was regularised with effect from
10.01.2014. Only from the proceedings dated 20.03.2017, it is seen that
seniority of the 6th appellant herein in WA.No.1027/2022 by name
V.A.Raja, was fixed on the basis of a representation submitted by him
after he was regularized in the post of Assistant. Even though it is
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referred to in the said communication dated 20.03.2017 that
Thiru.V.A.Raja was appointed in the post of Assistant as per proceedings
dated 24.12.2013, it is admitted that all the Junior Assistants who were
given retrospective promotion, were appointed only in the year 2014 in
the post of Assistant.
(9)Since the actual date of appointment of the appellants to the post of
Assistant was on 06.01.2014 and their services in the post of Assistant
was regularised with effect from 10.01.2014, the question is whether the
appellants who were actually appointed on a later date, can march over or
claim seniority above the writ petitioners, who were appointed as
Assistants on 18.12.2012?
(10)We have already referred to Rule 35[aa] of TNSSS Rules which
mandates that the seniority of person in service, class, category or grade
in the case of service, where the normal method of recruitment to such
service is by more than one method of recruitment, is determined with
reference to the date on which he is appointed to the service, class,
category or grade. In the present case, it is not in dispute that the writ
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petitioners were appointed by direct recruitment. The minimum
educational qualification is a degree and the Assistants who were
appoitned by direct recruitment is a class or category by itself. As far as
the appellants are concerned, though they were appointed on temporary
basis under Rule 10[a][i] in the year 2007, completed their probation
much later and appointed in the post of Assistant in 2014 much after the
appointment of writ petitioners have been maliciously placed above writ
petitioners.
(11)Mr.V.Prakash, learned Senior Counsel appearing for the writ petitioners
relied upon the judgments of Hon’ble Supreme Court in [1]
K.Madalaimuthu and Others Vs. State of Tamil Nadu and Others [AIR
2006 SC 2662 : 2006 [6] SCC 558] ; and [2] M.P.Palanisamy and
Others Vs. A.Krishnan and Others [AIR 2009 SC 2809 : 2009 [6] SCC
428].
(12)In K.Meghachandra Singh and Others Vs. Ningm Siro and Others
[2020 [5] SCC 689], the Hon’ble Supreme Court considered the issue
relating to inter-se seniority with reference to Manipur Police Service
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Grade II officers. While referring to similar Rules as in the present case,
the Hon’ble Supreme Court held that a person is not entitled to claim
seniority from the date he was not borne in the service in the cadre. The
said judgment has a direct bearing on the present case where the
appellants herein are claiming seniority above the direct recruitees on the
basis of some proceedings where their promotion was notionally treated
to give retrospective effect.
(13)When the appellants were promoted with retrospective effect in 2014,
they were not in service in the post of Assistant. In other words, the
appellants were appointed in the post of Assistant only in January 2014 as
it was admitted before this Court. In such circumstances, their
retrospective promotion based on extraneous reasons,cannot be
considered to recognize them in the post of Assistant even before the date
on which they were appointed to the post to physically serve.
(14)Similar view can be inferred from the judgment of Hon’ble Supreme
Court in the case of P.Sundhakar Rao and Others Vs. U.Govinda Rao
and Others [2013 [8] SCC 693].
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WA.Nos.1027 & 2308/2022
(15)Even earlier, the Hon’ble Supreme Court in the case of Baldeo Prasad
and Others Vs. Adhuri Sachindra Nath and Others [1999 Supp.[1] SCC
334], has held as follows:-
”12. In the instant case, the promotee
respondents 6 to 23 were not born in the cadre of
Assistant Engineer in the Bihar Engineering Service,
Class II at the time when respondents 1 to 5 were
directly recruited to the post of Assistant Engineer and
as such they cannot be given seniority in the service of
Assistant Engineers over respondents 1 to 5. It is well
settled 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. It is well
settled by several decisions of this Court that amongst
members of the same grade seniority is reckoned from
the date of their initial entry into the service. In other
words, seniority inter se amongst the Assistant
Engineers in Bihar Engineering Service, Class II will
be considered from the date of the length of service
rendered as Assistant Engineers. This being the
position in law respondents 6 to 23 cannot be made
senior to respondents 1 to 5 by the impugned
government orders as they entered into the said service
by promotion after respondents 1 to 5 were directly
recruited in the quota of direct recruits. The judgment
of the High Court quashing the impugned government
orders made in Annexures 8, 9 and 10 is
unexceptionable.”(16)This Court has already referred to the relevant Rules which are
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WA.Nos.1027 & 2308/2022important while considering the inter-se seniority between the direct
recruitees and the appellants who were given promotion with
retrospective effect. Rule 35[a] of TNSSS Rules makes the position clear
and the principles reiterated by the Hon’ble Supreme Court in a few
judgments above referred to and relied upon by the writ petitioners,
would certainly justify the order of the learned Single Judge while
allowing the writ petition filed by the writ petitioners.
(17)This Court, on the admitted facts is unable to accept the case of
appellants, who had not even born in the cadre of Assistant when the writ
petitioners were recruited on 18.12.2012. Hence, this Court finds no
merit in the writ appeals.
(18)Accordingly, the writ appeals stand dismissed confirming the order of
the learned Single Judge dated 03.03.2022 made in
WP.No.23342/2019. The interim order of stay granted in the writ appeals
stands vacated and the miscellaneous petitions filed for grant of interim
stay stand dismissed and the petition filed to vacate the stay stands
allowed.
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WA.Nos.1027 & 2308/2022
(19)CMP.No.5738/2023 in WA.No.2308/2022 is filed by the petitioner
seeking to implead himself in the said writ appeal. In the affidavit filed
in support of the miscellaneous petition, it is stated by the petitioner that
he is also one of the Assistants who has been recruited through TNPSC
for the vacancies of the year 2009-10. It is further stated that he was
issued with the order of appointment on 29.12.2012. Even though he
states that he is similarly placed to that of writ petitioners, the benefit of
the order cannot be given at the appellate stage. Therefore, giving liberty
to the petitioner to file an independent writ petition to claim seniority
over the appellants herein, the miscellaneous petition stands dismissed.
No costs.
29.04.2025
AP
Index : Yes
Internet : Yes
Neutral Citation: Yes
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WA.Nos.1027 & 2308/2022
To
1.The Secretary,
Government of Tamil Nadu
Commercial Taxes and Registration Department
Fort St George, Chennai 600 009.
2.The Inspector General of Registration
O/o.The Inspector General of Registration
No.100, Santhome High Road,
Chennai 600 028.
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WA.Nos.1027 & 2308/2022
S.S. SUNDAR, J.,
and
C.SARAVANAN, J.,
AP
Judgment in
WA.Nos.1027 & 2308/2022
29.04.2025
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WA.Nos.1027 & 2308/2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 04.03.2025
Pronounced on 29.04.2025
CORAM :
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MR.JUSTICE C.SARAVANANW.A.Nos.2308 and 1027 of 2022
and C.M.P.Nos.10370, 17641 & 21771 of 2022 and 5739 of 2023W.A.No.2308 of 2022:
1.M.Sheik Abdullah
2.S.Ilangovan
3.N.Ganesh … Appellants
Vs.
1.N.Mahalingam
2.M.Kanchana
3.V.Kala
4.D.Latha
5.A.Mohandas
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WA.Nos.1027 & 2308/2022
6.T.Karthi
7.N.Lingeswaran
8.P.Senthil Kumar
9.I.Shankar
10.K.Napoleon
11.The Government of Tamil Nadu,
Represented by its Secretary,
The Commercial Taxes and
Registration Department,
Fort St.George, Chennai – 600 009.
12.The Inspector General of Registration,
O/o. The Inspector General of Registration,
No.100 Santhome High Road,
Chennai – 28.
13.R.Sridhar
14.N.Santhakumar
15.T.Daivasigamani
16.G.P.Paramaguru
17.S.Subramanian
18.S.Gunasekaran
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WA.Nos.1027 & 2308/2022
19.S.Soundarapandian
20.T.Elaiyaraja
21.V.Kalavathi
22.G.Ashok Kumar
23.C.Boopathy Kannan
24.R.Senthil Kumar
25.J.Santhamaria
26.M.Pandian
27.G.Srinivasan
28.S.Malligeswaran
29.V.A.Raja
30.R.Baskar
31.K.Meenakshi Sundaram
32.B.Vairamani
33.B.Jansi
34.Menaka
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WA.Nos.1027 & 2308/2022
35.K.Kasthuri
36.N.Mohanraj
37.K.Mahendran
38.P.Sokkalingam
39.G.Jayanthi
40.P.Manoharan
41.K.Asaithambi
42.J.Suman Prabhu
43.M.Ravichandran
44.S.Jagatheesan
45.G.Anitha
46.K.Hariharan
47.M.Logeshbabu
48.J.Prabu
49.S.Shoban Babu
50.B.Gopi
51.M.Velu
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WA.Nos.1027 & 2308/2022(30th Respondent was impleaded vide order dated 06.03.2023 made in
CMP.No.1784 of 2023 in W.A.No.2308 of 2022)(Respondents 31 to 51 were impleaded vide order dated 06.03.2023 made in
C.M.P.No.1784 of 2023 in W.A.No.2308 of 2022)… Respondents
W.A.No.1027 of 2022:
1.Mr.R.Sridhar
2.G.P.Paramaguru
3.T.Elaiyaraja
4.G.Srinivasan
5.S.Malligeswaran
6.V.A.Raja
… AppellantsVs.
1.N.Mahalingam
2.M.Kanchana
3.V.Kala
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WA.Nos.1027 & 2308/2022
4.D.Latha
5.A.Mohan Dass
6.T.Karthi
7.N.Lingeswaran
8.P.Senthil Kumar
9.I.Shankar
10.K.Napoleon
11.The Government of Tamil Nadu,
Represented by its Secretary,
The Commercial Taxes and
Registration Department,
Fort St.George, Chennai – 600 009.
12.The Inspector General of Registration,
O/o. The Inspector General of Registration,
No.100 Santhome High Road,
Chennai – 28.
13.N.Santhakumar
14.T.Daivasigamani
15.S.Subramanian
16.S.Gunasekaran
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WA.Nos.1027 & 2308/2022
17.S.Soundarapandian
18.V.Kalavathi
19.G.Ashok Kumar
20.C.Boopathy Kannan
21.M.Sheik Abdullah
22.R.Senthil Kumar
23.S.Ilangovan
24.J.Shantha Maria
25.M.Pandian
26.N.Ganesh … Respondents
Common Prayer: Writ Appeals filed under Clause 15 of the Letters Patent
praying to set aside the order dated 03.03.2022 made in W.P.No.23342 of
2019.
For Appellants
in W.A.No.2308 of 2022 : Mr.M.Ravi
For Appellants
in W.A.No.1027 of 2022 : Mr.A.Palaniappan
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WA.Nos.1027 & 2308/2022
For Respondents – 1, 2, 9, 10 &
30 to 51 in W.A.No.2308 of 2022
and
For Respondents – 1, 2, 8, 9
& 10 in W.A.No.1027 of 2022 : Mr.V.Prakash
Senior Counsel
for Mr.K.Krishnamoorthy
COMMON JUDGMENT
(Judgment of the Court was delivered by C.SARAVANAN, J.)
For the sake of convenience, this Order is segmented as under various
headings:-
S.No. Heading Pg.No.
1 Introduction
2 Brief Facts of the case
3 Submissions of the Appellants and the Official and
Private Respondents
4 Discussion
1. Discussion on the factual background of the
present case
2. Discussion on the relevant provisions
i. Tamil Nadu Registration Subordinate Service
Rules(TNRSSR)
ii. Tamil Nadu State and Subordinate Service Rules
(TNSSSR)
iii. Tamil Nadu Ministerial Service Rules (TNMSR)
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WA.Nos.1027 & 2308/2022
S.No. Heading Pg.No.
3. Discussion on the Precedents
4. Conclusion
5 Summary of the Decision
1. INTRODUCTION:-
2. I have had the benefit of reading the views expressed by my
esteemed brother the Hon’ble Mr.Justice S.S.SUNDAR while finalizing the
Order. I am however unable to subscribe to the views expressed by my
esteemed brother the Hon’ble Mr.Justice S.S.SUNDAR. Under these
circumstances, I have authored this separate order.
3. This Intra Court Appeal is directed by the Private Respondents in
the Writ Petition against the Order dated 03.03.2022 of the Writ Court in
W.P. No. 23342 of 2019 (hereinafter referred to as the ‘Impugned Order’).
4. In my view, the Order of the Writ Court allowing the Writ Petition
filed by the Private Respondents 1 to 10 (Direct Recruitees) is erroneous
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WA.Nos.1027 & 2308/2022
and has to be therefore set aside. Reasons are many. I have therefore
penned this detailed order after examining the crucial facts, the applicable
provisions and the case laws. In my view, if there was a more detailed
discussion on facts and the laws settled by the Courts, the Writ Court may
have allowed the Writ Petition.
5. 1st to 10th Respondents/1st to 10th Writ Petitioners filed the
W.P.No.23342 of 2019 for the following relief:-
“Petition filed under Article 226 of the Constitution of
India, praying to issue a Writ of Certiorarified Mandamus, to
call for the records of the respondent 1 and 2 in connection
with the impugned proceedings bearing
Ref.No.21380/nfl/2016, dated 07.06.2016 and consequential
impugned seniority list bearing Ref.No.18/nfl/2018, dated
02.02.2018 and quash the same in so far as Mr.R.Sridhar
SI.No.113 in the impugned seniority and others like him in the
seniority list up to SI.No.239, have been placed above the
petitioners and direct the respondents 1 and 2 to treat the
petitioners as seniors to the 3rd respondent and others of the
same class and accordingly, direct the respondents 1 and 2, to
issue orders of promotion to the post of Sub-Registrar Grade
II for the Petitioners.
6. Operative portion of the Impugned Order dated 03.03.2022 of the
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WA.Nos.1027 & 2308/2022
Writ Court in W.P. No. 23342 of 2019 reads as under:-
“85. In any event, as far as the recruitment of
these petitioners is concerned, they were appointed in
pursuance of the notification issued by the
Commission dated 30.12.2010. All of them have been
accommodated in the quota meant for them in terms
of the aforementioned two Government Orders. In
that context, there is no legal significance of
G.O.Ms.No.56, dated 17.04.2012, in respect of the
petitioners- claim in the writ petition.
86. In the said circumstances, this Court has no
hesitation to hold that the petitioners have made out a
clear case for grant of relief as prayed for in the writ
petition.
87. For the above said reasons, the impugned
proceedings bearing Ref.No.21380/nf1/2016, dated
07.06.2016 and consequential impugned seniority list
bearing Ref.No.18/nf1/2018, dated 02.02.2018 are
hereby set aside.
88. The official respondents are directed to
prepare a fresh seniority list and assign proper
seniority as between the petitioners and the private
respondents herein in terms of the above ruling of this
Court.
89. The official respondents are also directed
to comply with the above direction within a period of
eight weeks from the date of receipt of a copy of this
order.
90. With the above directions, this writ petition
stands allowed. No costs. Consequently, connected
miscellaneous petitions are closed.”
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WA.Nos.1027 & 2308/2022
7. Relevant portion of the Proceedings bearing No.21380/nf1/2016
dated 07.06.2016 of the 12th Respondent impugned in the above Writ
Petition is extracted hereunder:-
gjpt[j;Jiwapy; gzpahw;Wk; cjtpahsh;fspd;
01/04/2016 njjpapyhd xU’;fpide;j Kjepiyg; gl;oay;
(seniority list) ,izg;g[ I y; fz;lthW ,j;Jld;
,izj;jDg;gg;gLfpwJ/ njh;thizaj;jpd; KPyk;
epakdk; bra;ag;gl;L njh;thizaj;jplkpUe;J Kjepiy
tptuk; bgwg;glhj neuo cjtpahsh;fspd; tptuk;
,izg;g[ II kw;Wk; IVYk; 2014-2015 kw;Wk; 2015-2016
cjtpahsh; gl;oay; KPyk; cjtpahsh; gjtp cah;t[
bgw;wth;fspd; bgah;fs; ,izg;g[ III kw;Wk; VYk;
rhjpr;rhd;wpd; bka;j;jd;ik Fwpj;J khepy-khtl;l
Th;nehf;F FGtpdhplkpUe;J mwpf;if bgw ntz;o
gzptud;Kiw bra;ag;glhj cjtpahsh;fs; tptuk;
,izg;g[ VI Yk; btspaplg;gl;Ls;sJ/
2/,izg;g[ II kw;Wk; Ivy; fz;l cjtpahsh;fSf;F
jkpH;ehL muRg; gzpahsh; njh;thizaj;jplkpUe;J
KJepiy tptuk; bgwg;gl;l gpd;dh; KJepiy
eph;zapf;fg;gLk; vdj; bjhptpf;fg;gLfpwJ/
3.,g;gl;oaiy j’;fs; khtl;lj;jpYs;s
cjtpahsh;fspd; ftdj;jpw;F vLj;Jr; brd;W
mth;fsplkpUe;J fPHf; z;l tptu’;fis rhpghh;j;jjw;fhd
rhd;wpid bgwy; ntz;Lk;/
1/cjtpahsh; bgah; kw;Wk; KjbyGj;J
2/fyk; 2y; Fwpf;fg;gl;l Ke;ija gl;oaypd;
(1/10/2013) KJepiy t/vz;/
3/gzptud; Kiw/
4/Xa;t[ bgWk; ehs;
4. ,t;thW j’;fs; khtl;lj;jpYs;s cjtpahsh;fs;
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WA.Nos.1027 & 2308/2022
midthplKk; gl;oay; Rw;Wf;F mDg;gg;gl;L mth;fspd;
xg;g[jy; bgwg;gl;lJ vd;Wk;. gl;oaypy; mspf;fg;gl;Ls;s
tptu’;fs; rhpahf cs;sd/ tply;fs; Vjkpy;iy
vd;gjw;fhd rhd;wpid khtl;lg;gjpthsh;fs;.
Jidgjpt[j;Jiwj; jiyth;fSf;F 30/06/2016f;Fs;
mDg;g ntz;Lk;/ Jizgjpt[j;Jiwj; jiyth;fs;
khtl;lg; gjpthsh;fspd; rhd;Wfis xU’;fpizj;J jk;
mYtyf tptu’;fSf;fhd rhd;wpiza[k; nrh;j;J ,Wjp
mwpf;ifapid 15/07/2010f;Fs; ,t;tYtyfj;jpw;F
kpd;d”;ry; KPyk; mDg;g ntz;Lk; vd;Wk; nfl;Lf;
bfhs;sg;gLfpwJ/
5/,g;gl;oaypy; tply;fs;-ePff
; g;gl ntz;oa bgah;fs;
VJkpUg;gpd; rk;ge;jg;gl;l cjtpahsh;fspd; bgah;. epakd
Kiw. gjpt[ khtl;lk;. gzptud;Kiw ehs; kw;Wk; Xa;t[
bgWk; ehs; Fwpj;J chpa Mjhu’;fSld; tphpthd
mwpf;if mDg;gp itf;ft[k; nfhug;gLfpwJ/ gl;oay;
bjhlh;ghf nky;KiwaPL VJkpUg;gpd; ,U khj’;fSf;Fs;
chpa tHp Kiwapy; mDg;gg;gl ntz;Lk;/”
8. English transcript of the impugned Proceedings dated 07.06.2016
of the 12th Respondent is extracted hereunder:-
The consolidated seniority list of Assistants working in
Registration Department dated 01.04.2016 is annexed
herewith in Annexure 1. The details of Direct Assistants
appointed by the Selection Board and whose details have not
yet been received from the Selection Board are in Annexure II
and IV and the names of those who have been promoted to
the rank of Assistants vide list prepared during the panel
years 2014-15 and 2015-2016 are in Annexure III and V and
the details of the Assistants who have not been probated
awaiting the authenticity of the caste certificate from the
State/District Scrutiny Committee are in Annexure VI and are
published.
2. It is stated that the seniority of the list of Assistants
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WA.Nos.1027 & 2308/2022in Annexure II and IV will be fixed once the details are
received from the Tamil Nadu Public Service Commission.
3. This list is to be taken to the attention of the
Assistants in the respective districts and a certificate is to be
obtained from them pursuant to verifying the following
details.
1. Assistant Name and Initial
2. The previous list (01.10.2013) indicated in column
2.
3. Schedule Day.
4. Date of retirement.
4. Likewise, the list has been circulated to all the
Assistants in their respective districts and their consent has
been obtained with regard to whether the details given in the
list are correct. Therefore, the certificate stating that there are
no discrepancies should be sent to the District Registrars,
Sub-Registrar by 30.06.2016. It is also requested that the
Sub-Registrars should consolidate the lists of the District
Registrars and send the final report to the office by
15.07.2010 via email.
5. If there are any names to be omitted/removed from
this list, then the Sub-Registrar are requested to send a
relevant report bearing details of the concerned Assistant such
as method of appointment, registration district, date of duty
and date of retirement of the concerned assistants. Any
appeal against the list should be forwarded through proper
channels within two months.
9. Relevant portion of the 2nd impugned Proceedings dated
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WA.Nos.1027 & 2308/2022
02.02.2018 of the 12th Respondent is extracted hereunder:-
“gjpt[j;Jiwapy; gzpahw;Wk; cjtpahsh;fspd; 1/1/2018
njjpapyhd xU’;fpize;j Kjepiyg; gl;oay; (Seniority list)
,izg;g[ I-Yk;. Rhjpr;rhd;wpd; bka;j;jd;ik Fwpj;J khepy –
khtl;l Th;nehf;F FGtpdhplkpUe;J mwpf;if bgw ntz;o
gzptud;Kiw bra;ag;glhj cjtpahshpd; tptuk; ,izg;g[ II-
Yk; btspaplg;gl;Ls;sJ/
2/ ,g;gl;oaiy j’;fs; khtl;lj;jpYs;s cjtpahsh;fspd;
ftdj;jpw;F vLj;Jr; brd;W mth;fsplkpUe;J fPH;f;fz;l
tptu’;fis rhpghh;j;jjw;fhd rhd;wpid bgwy; ntz;Lk;/
1/cjtpahsh; bgah; kw;Wk; KjbyGj;J
2/fyk; 2y; Fwpf;fg;gl;l Ke;ija gl;oaypd;
(1/10/2013) KJepiy t/vz;/
3/gzptud; Kiw/
4/Xa;t[ bgWk; ehs;/3/,t;thW j’;fs; gjpt[ khtl;lj;jpYs;s cjtpahsh;fs;
midthplKk; gl;oay; Rw;Wf;F mDg;gg;gl;L mth;fspd;
xg;g[jy; bgwg;gl;lJ vd;Wk;. gl;oaypy; mspf;fg;gl;Ls;s
tptu’;fs; rhpahf cs;sd/ tply;fs; VJkpy;iy vd;gjw;fhd
rhd;wpid khtl;lg;gjpthsh;fs;. Jizgjpt[j;Jiwj;
jiyth;fSf;F 31/03/2018- f;Fs; mDg;g ntz;Lk;/
Jizgjpt[j;Jiwj; jiyth;fs; khtl;lg; gjpthsh;fspd;
rhd;Wfis xU’;fpizj;J. jk; mYtyf tptu’;fSf;fhd
rhd;wpida[k; nrh;j;J ,Wjp mwpf;ifapid 15/02/2018-f;Fs;
,t;tYtyfj;jpw;F kpdd ; “;ry; KPyk; mDg;g ntz;Lk; vd;Wk;
nfl;Lf; bfhs;sg;gLfpwJ/45
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WA.Nos.1027 & 2308/20224/,g;gl;oaypy; tply;fs;-ePf;fg;gl ntz;oa bgah;fs;
VJkpUg;gpd;. rk;ge;jg;gl;l cjtpahsh;fspd; bgah;. epakd
Kiw. gjpt[ khtl;lk;. gzptud; Kiw ehs; kw;Wk; Xa;t[
bgWk; ehs; Fwpj;J chpa Mjhu’;fSld; tphpthd mwpf;if
mDg;gp itf;ft[k; nfhug;gLfpwJ/ gl;oay; bjhlh;ghf
nky;KiwaPL VjkpUg;gpd; ,U khj’;fSf;Fs; chpa tHp
Kiwapy; mDg;gg;gl ntz;Lk;.”
10. English transcript of the aforesaid impugned Proceedings dated
02.02.2018 of the 12th Respondent in the above Writ Petition is extracted
hereunder:-
“The Consolidated seniority list as on 01.01.2018 of the
Assistants working in the Registration Department is published
in Annexure-1 and details of those Assistants whose report
regarding caste certificate verification are awaited from State
(District) Scrutiny Committee is published in Annexure-II.
2. It is asked that this list should be taken to the notice of
the Assistants in their respective districts and to obtain a
certificate from them pursuant to verification of the following
particulars.
1. Assistant Name and Initial
2. In the previous list (1.4.2016) indicated in annexure 2
3. Schedule Day.
4. Date of retirement.
3.Thus the list was circulated to all the assistants in their
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WA.Nos.1027 & 2308/2022
registration district and their approval was obtained. Also the
details given in the list are correct. The certificate regarding
incorrect or omissions of details should be sent to the District
Registrars, Sub Registrars by 31.03.2018. The Sub Registrars
are also requested to collate the certificates of the District
Registrars and send the final report to this authority by
15.12.2018 along with the certificate from their office.
4. If there are any names to be omitted/removed from this
list, then the Sub-Registrar are requested to send a relevant
report bearing details of the concerned Assistant such as
method of appointment, registration district, date of duty and
date of retirement of the concerned assistants. Any appeal
against the list should be forwarded through proper channels
within two months.”
11. The details of the Appellants and Private Respondents in the
respective Writ Appeals are as under:-
Table No.I:-
Writ Appeal Appellants in WA Respondents in WA
(Promotees) (Direct Recruitees)
2308/2022 Appellants 1 to 3 are the 14, (i)Respondents 1 to 10
16 and 22 Respondents in herein were Petitioners 1 to
the W.P.No.23342 of 2019. 10 in W.P.No.23342 of 2019.
(ii) Respondents 11 & 12
herein (Official
Respondents) were
Respondents 1 and 2 in the
W.P.No.23342 of 2019.
47 https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/06/2025 08:36:11 pm ) WA.Nos.1027 & 2308/2022 Writ Appeal Appellants in WA Respondents in WA (Promotees) (Direct Recruitees) (iii) Rest of the Private Respondents Nos. 13 to 29 were initially Respondents in the W.P.No.23342 of 2019. 1027/2022 Appellants 1 to 6 are the (i) Respondents 1 to 10 3,6,10,19,20 and 21 herein were Petitioners 1 to Respondents in 10 in W.P.No.23342 of 2019. W.P.No.23342 of 2019. (ii) Respondents 11 & 12 herein (Official Respondents) were Respondents 1 and 2 in the W.P.No.23342 of 2019. (iii) Rest of the Private Respondents Nos. 13 to 26 in W.A.No. 1027 of 2022 were Respondents in the W.P.No.23342 of 2019.
12. In W.A.No. 2308 of 2022 apart from the above mentioned
Respondents, Respondent Nos. 31 to 51 were impleaded by this Court vide
Order dated 06.03.2023 in C.M.P.No.1784 of 2023 in W.A.No.2308 of
2022. They were the directly recruited ‘Assistants’ similar to the 1 to 10
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WA.Nos.1027 & 2308/2022
Respondents/1 to 10 Writ Petitioners.
13. For the sake of clarity, the Appellants/Private Respondents will
be referred to as the ‘Promotees’ and the Private Respondents/Writ
Petitioners will be referred to as ‘Direct Recruitees’ hereinafter.
2. BRIEF FACTS OF THE CASE:-
14. The Promotees were appointed on compassionate grounds under
Rule 10(a)(i)(1) of the Tamil Nadu State and Subordinate Services Rules, as
‘Junior Assistants’ in the year 2006-2007 on various dates by the 12th
Respondent.
15. Though, these Promotees cleared the departmental exam
conducted by Tamil Nadu Public Service Commission (TNPSC) for
Recruitment by Transfer to the post of ‘Assistants’ in the year 2010,
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WA.Nos.1027 & 2308/2022however for want of necessary Government Orders to send them for
mandatory training at the Civil Service Training Institute, Bhavanisagar,
Erode District there was a delay in regularizing their services as ‘Junior
Assistants’ for a considerably long period of time.
16. Thus, probation of the Promotees were also not declared by the
11th and 12th Respondents in the post of ‘Junior Assistants’ in time until the
year 2011 for want of training at the Civil Service Training Institute,
Bhavanisagar, Erode District although they were recruited in the year 2007
as a ‘Junior Assistant’ under Rule 10(a)(i)(1) of the Tamil Nadu State and
Subordinate Service Rules, though most of them had earlier cleared the
departmental exam conducted by Tamil Nadu Public Service Commission
(TNPSC) for Recruitment by Transfer to the post of ‘Assistants’ in the year
2010.
17. These departmental qualification were the additional qualification
which the Direct Recruitees were also required to have obtained before their
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WA.Nos.1027 & 2308/2022name could be included in the seniority list under Rule 13-A of the Tamil
Nadu Ministerial Service Rules. There is no discussion as to the date on
which the Direct Recruitees acquired these additional qualification for
being promoted as Assistants to have seniority over the Promotees. If on the
crucial date they did not possess the requisite qualification their name could
not have been included in the Seniority List.
18. As mentioned above, the Promotees were subsequently promoted
to the post of ‘Assistants’ in the Registration Department under the Tamil
Nadu Ministerial Service Rules between the years 2012-2016 which is also
admitted in Paragraph No.5 of the Affidavit filed in support of the Writ
Petition. I shall refer to the same in some detail in the ensuing paragraphs.
19. Meanwhile, the Government of Tamil Nadu, the 11th Respondent
issued G.O.Ms.No.47, Commercial Taxes and Registration (M2)
Department, dated 09.04.2010 and proposed recruitment of ‘Assistants’ by
‘Direct Recruitment’ which was acted upon by the 12th Respondent namely,
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WA.Nos.1027 & 2308/2022the Inspector General of Registration, Chennai. The text of the aforesaid
Government Order is in Paragraph No. 58 of the Impugned Order which has
been extracted in the ensuing paragraphs of this Order.
20. Both the Assistant and the Junior Assistant are posts under the
Tamil Nadu Ministerial Service Rules. The Tamil Nadu Ministerial Service
Rules did not provide for direct recruitment to the post of ‘Assistants’ in the
Registration Department until 2012. Since there was a huge number of
sanctioned vacancies in the sanctioned post of ‘Assistants’ in the
Registration Department and not many eligible ‘Junior Assistants’ were
available for being promoted as ‘Assistants’, G.O.Ms.No. 47, Commercial
Taxes and Registration Department dated 09.04.2010 was issued.
21. G.O.Ms.No. 47, Commercial Taxes and Registration
Department dated 09.04.2010 estimated that there were totally 1320
substantive posts in the cadre of ‘Assistants’ under Ministerial Service in the
Registration Department. It also acknowledged that there were huge
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WA.Nos.1027 & 2308/2022numbers of vacancies in the post of ‘Assistant’ in the Registration
Department under the Tamil Nadu Ministerial Service Rules and there was
also an acute shortage of ‘Junior Assistants’ for being promoted to the post
of ‘Assistants’ in view of the ban for recruitment for five years from the year
2001.
22. The 11th Respondent vide G.O.Ms.No. 47, Commercial Taxes
and Registration Department dated 09.04.2010 estimated vacancies in the
post of ‘Assistants’ 320 vacanies for the Panel Year 2010-2011 which could
to be filled by way of ‘Direct Recruitment’. The 320 vacant posts in
category of ‘Assistants’ were thus directed to be filled by way of ‘Direct
Recruitment’, through Tamil Nadu Public Service Commission (TNPSC).
23. Therefore, the Inspector General sent a proposal to the
Government to earmark 50% of the substantive vacancies in the post of
‘Assistants’ in the Registration Department under ‘Direct Recruitment’ on
regular basis through Tamil Nadu Public Service Commission. G.O.Ms.No.
47, Commercial Taxes and Registration Department dated 09.04.2010
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WA.Nos.1027 & 2308/2022itself records that the Tamil Nadu Public Service Commission
recommended amendments to the provisions of the Tamil Nadue
Ministerial Services in Part III of the Tamil Nadu Service Manual.
24. The Tamil Nadu Public Service Commission also agreed with
the proposal of the Inspector General and stated that the post of ‘Assistants’
in the Registration Department shall be classified as ‘Non Technical’ and
will be included in the ensuing Combined Subordinate Service
Examination for Direct Recruitment along with various other posts.
25. G.O.Ms.No. 47, Commercial Taxes and Registration
Department dated 09.04.2010 merely prescribed a minimum qualification
for Direct Recruitment to the post of ‘Assistants’ as a ‘Degree’ .
26. As a sequitter to G.O.Ms.No. 47, Commercial Taxes and
Registration Department dated 09.04.2010, the Government issued
G.O.(D).No. 183, Commercial Taxes and Registration Department dated
31.05.2010. G.O.(D).No.183, Commercial Taxes and Registration (M2)
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WA.Nos.1027 & 2308/2022Department dated 31.05.2010 was however issued without amending the
provisions of the Tamil Nadu Ministerial Services in Part III of the
Tamil Nadu Service Manual as was recommended by the Tamil Nadu
Public Service Commission.
27. In G.O.(D).No.183, Commercial Taxes and Registration (M2)
Department dated 31.05.2010, the 11th Respondent earmarked 50% of the
substantive vacancy against the sanctioned posts to the post of ‘Assistant
(Non-Technical)’ in the Registration Department to be filled by way of
‘Direct Recruitment’. The text of the aforesaid Government Order has been
already extracted in Paragraph No. 59 of the Impugned Order which has
been extracted in Part IV of this Order.
28. As a sequitter to G.O.(D).No. 183, Commercial Taxes and
Registration Department dated 31.05.2010, the Recruitment Notification
No. 258 dated 30.12.2010 was issued by the Tamil Nadu Public Service
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WA.Nos.1027 & 2308/2022
Commission to fill up 320 substantive vacancies to the post of ‘Assistant’
by way of Direct Recruitment and fixed the date of Written Examination as
12.06.2011.
29. Thus, Recruitment Notification No. 258 dated 30.10.2010 was
issued for direct recruitment by Tamil Nadu Public Service Commission
(TNPSC), wherein, applications were invited until 5.45 P.M on 11.02.2011
for various posts mentioned therein along with the requisite qualification for
the respective posts in the light of G.O.Ms.No.47, Commercial Taxes and
Registration (M2) Department, dated 09.04.2010 and G.O.(D).No. 183,
Commercial Taxes and Registration Department dated 31.05.2010. The
aforesaid Recruitment Notification also included the post of ‘Assistants’ in
the Registration Department.
30. The aforesaid Recruitment Notification was in respect of two
categories involving two successive stages for selection i.e., Written
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Examination and Oral Test and those only by Written Examination. As far as
the 320 seats to the post of ‘Assistants’ in the Registration Department i.e.,
under the 12th Respondent pursuant to the above mentioned Government
Orders are concerned, they were under the 2nd category i.e., post for which
selection was to be made only by Written Examination under the Tamil
Nadu Ministerial Service Rules.
31. It has be noted that G.O.(D). No. 183, Commercial Taxes and
Registration Department dated 31.05.2010 was issued in partial deviation
of G.O.Ms.No. 47, Commercial Taxes and Registration Department
dated 09.04.2010.
32. As mentioned above, G.O.(D).No. 183, Commercial Taxes and
Registration Department dated 31.05.2010 and Recruitment Notification
No. 258 dated 30.10.2010 issued pursuant to G.O.Ms.No. 47, Commercial
Taxes and Registration Department dated 09.04.2010 was without any
amendment to the provisions of the Tamil Nadu Ministerial Service Rules
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WA.Nos.1027 & 2308/2022
for apportioning vacancies to be filled by way of direct recruitment to the
post of ‘Assistants’ in the Registration Department, despite the
recommendation of the Tamil Nadu Public Service Commission (TNPSC) to
suitably amend the provisions of the Tamil Nadu Ministerial Service
Rules which was noted in G.O.Ms.No. 47, Commercial Taxes and
Registration Department dated 09.04.2010.
33. In G.O.(D).No. 183, Commercial Taxes and Registration
Department dated 31.05.2010, the Government merely decided to grant one
time exemption for filling up of the vacancies to the post of ‘Assistant’ by
‘Direct Recruitment’ through Tamil Nadu Public Service Commission
(TNPSC). This was ostensibly in consonance with the approval of the Staff
Committee as per the instructions issued vide Government Order in
G.O.(Ms).No.123 Personnel and Administrative Reforms Department
dated 10.09.2009.
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34. G.O.(D). No. 183, Commercial Taxes and Registration
Department dated 31.05.2010 is said to have been issued with the approval
of the State Committee as per the instructions in G.O.(Ms).No.123 P & AR
Department dated 10.09.2009. The text of G.O.(Ms).No.123 Personnel
and Administrative Reforms Department dated 10.09.2009 is extracted
hereunder:-
“fhypapl kjpg;gPL fzpf;Fk; nghJ filg;gpof;f ntz;oa
tHpKiwfs; Fwpj;J nkny thpir vz;.1-4 y; gof;fg;gl;Ls;s
murhizfs;/foj’;fspy; bewp Kiwfs; btspaplg;gl;Ls;sd/2/nkny thpir vz;/5 y; gof;fg;gl;l muRf; fojj;jpy; vjph;ghuh
,d’;fSf;bfd (unexpected contingencies) xJf;fg;gl;l
fhypg;gzpapl’;fs; kw;Wk; tpLg;gpy; bry;tjhy; Vw;gLk; fhypapl xJf;fPL
(Leave Reserve) jtph;jJ ; cs;sgoahf cs;s fhypg;gzpapl’;fis
(Actual Vacancies) kl;Lk; fzf;fpy; bfhs;s Mizaplg;gl;lJ/
,j;jifa gzpapl’;fs; gzpahsh; FGtpy; xg;gj[ iyg; bgw;W epug;gg;gl
ntz;Lbkdt[k; bjhptpf;fg;gl;lJ/3/,t;thizfis ftdkhfg; ghprPyid bra;J muR fPHf; hZk;
jpUj;jpa Mizfis btspapLfpwJ/
1/murhiz (epiy) vz;/368. gzpahsh; kw;Wk; epht ; hfr;
rPhj; pUj;jj; (gzp/v!;) Jiw. ehs; 18/10/1993 kw;Wk; mjd; bjhlh;rr; pahf
nkny thpir vz;/2-4 y; gof;fg;gl;Ls;s mirhizfs;/muRf;
foj’;fspy; btspaplg;gl;Ls;s mwpt[iu (2001 Mk; Mz;ow;F Kd;gpUe;j
epiy) fhypapl kjpg;gPl;oid eph;zak; bra;a ,dp filg;gpof;fyhk;/2/neuo epakz’;fis bghWj;jkl;oy;. fPH;fz;l ,d’;fspd;
gzpahsh; FGtpd; xg;gj[ y; bgwg;gl;L muryh; Mid tH’;fg;gl;l
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WA.Nos.1027 & 2308/2022
gpd;dnu epakd’;fs; bra;ag;gl ntz;Lk;/
bjhFjp A 10 fhypg; gzpapl’;fSf;F nkw;gl;l
,d’;fs; (my;yJ) Mz;Lf;F UP/50
,yl;rj;jpw;F nkw;gl;l bjhlh; brytpdk;
Vw;gLj;jf;Toa ,d';fs;/
bjhFjp B 25 fhypg; gzpapl';fSf;F nkw;gl
,d';fs; (my;yJ) Mz;Lf;F UP/75
,yl;rj;jpw;F nkw;gl;l bjhlh; brytpdk;
Vw;gLj;jf;Toa ,d';fs;/
bjhFjp C and D 50 fhypg; gzpapl';fSf;F nkw;gl
,d';fs; (my;yJ) Mz;Lf;F UP/60
,yl;rj;jpw;F nkw;gl;l bjhlh; brytpdk;
Vw;gLj;jf;Toa ,d';fs;/
XU';fpize;j gzp epakd';fs; nkw;Twg;gl;l ve;j bjhFjpfSk;
(Combined Recruitment) xU’;fpizg;g[ gzp epakdk; bra;af;
fUJk; epakd’;fspy; bjhlh; brytpdk;
Mz;Lf;F UP/60 ,yl;rj;jpw;F nkw;gLk;
,d’;fs;
3/muR epakd mjpfhhpahf ,Uf;Fk; gjtpfSf;fhd gjtp
cah;t[/gzp khWjy; fhypapl kjpg;gPl;oid eph;zak; bra;a gzpahsh;
kw;Wk; eph;thfr; rPhj; pUj;jj; Jiw kw;Wk; epjpj; Jiwapd; xg;gj[ y;
bgwg;gl;L fhypapl kjpg;gPL eph;zak; bra;a ntz;Lk;/ gzpahsh;
FGtpd; xg;g[jy; bgwj; njitapy;iy/”
35. Meanwhile, G.O.Ms.No. 56 Personnel and Administrative
Reforms (B) Department dated 17.04.2012 amended Category 12 in Rule
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2 in Section 22 of Vol III – Tamil Nadu Service Manual viz., Tamil Nadu
Ministerial Service Rules by adding ‘Annexure IX-C – Appointment,
training and conditions of service of directly recruited Assistants (Non
Technical) in the Registration Department’ in Rule 38, in Sub-Rule (b), in
Clause (ii), after Item No.3, Annexure IX-B of the aforesaid Rules.
36. The amendment to the Tamil Nadu Ministerial Service Rules
(cited supra) vide G.O.(Ms).No.56, Commercial Taxes and Registration
Department dated 17.04.2012 is extracted hereunder:-
“In the said Rules :-
In rule 2. Under category 12, after the entry ‘Assistant in the
Highways Department (Non-Technical (One out of every two
substantive vacancies)’: the following entry shall be added,
namely:-
“Assistant in the Registration Department (Non-Technical)
(One out of every two substantive vacancies)’;
2. In rule 38, in sub rule (b), in clause (ii), after item No. 3
the following item shall be added namely:-
“4.Annexure IX-C Registration Department”
3. After Annexure IX-B, the following Annexure shall be
inserted, namely:-
ANNEXURE-IX-C
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WA.Nos.1027 & 2308/2022[Referred to in rule 38(b)(ii)]
Appointment, training and conditions of service of
directly recruited Assistants (Non-Technical) in the
Registration Department:-
(1)……………….
(2)……………….
(3)……………….
(4)……………….
(5)………………..
(6) No person shall be eligible for appointment as
Assistant by direct recruitment, if he has completed or will
complete the age of 30 years on the first day of July of the
year in which the selection for appointment is made.
(7)Every person appointed as Assistant by direct
recruitment shall be on probation for a total period of two
year on duty within a continuous period of three years.
8(a).Every person appointed as Assistant by direct
recruitment shall be imparted training for a total period of
two years as specified below:-
Sl.No Period Item of Training
1 First three months Registration Training Instituted, Chennai.
Administrative Training at the office of the
Inspector General of Registration/Deputy
2 Next three months
Inspector General of Registration/District
Registrar (Administration)
Audi Training at the Office of the District
3 Next two months
Registrar (Audit)
4 Next two months Guideline, Chit & Society at the office of the
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Sl.No Period Item of Training
District Registrar (Administration)
Foundation Training at Civil Services Training
5 Next two months
Institute, Bhavanisagar.
6 Next one year Training in Sub-Registrar Offices
(b).Every person appointed to the post of Assistant by
direct recruitment, shall within the period of probation, pass
the following tests, namely:-
(i)Registration Tests;
(ii)Account Test for Subordinate Officers, Part-I;
(iii)Tamil Nadu Government Office Manual Test
(9).The inter-se-seniority between the directly recruited
Assistants and the Assistants appointed by promotion shall
be as per the provisions laid down in Rule 35(aa) of the
General Rules for the Tamil Nadu State and Subordinate
Services.”
37. It is at this juncture, the Official Respondents regularised the
services of the 6th Appellant/21st Respondent, namely, Mr.V.A.Raja, as a
‘Junior Assistant’ with retrospective effect from the date of his appointment
i.e., on 15.03.2007 vide G.O. Ms. No. 141, Commercial Taxes and
Registration Department dated 20.07.2012, the text of which has been
already extracted above.
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38. Meanwhile, by Proceedings bearing reference
No.56266/K2/2012 dated 21.11.2012, the 12th Respondent addressed a
Communication for sending Batch No.185 consisting of 25 Junior
Assistants for training to Bhavani Sagar Training Institute between
14.12.2012 to 11.02.2013.
39. Among the 25 Junior Assistants, the 1st Appellant/14th
Respondent in W.A.No.2308 of 2022 namely, Mr.M.Sheik Abdullah and the
6th Appellant/21st Respondent namely, Mr.N.V.Raja in W.A. No.1027 of
2022 were sent for training to Bhavani Sagar Training Institute pursuant to
the aforesaid proceedings of the 12th Respondent dated 21.11.2012 bearing
Reference No.56266/K2/2012. However, details of the rest of the Promotees
who were appointed as ‘Junior Assistants’ in the year 2007 on various dates
on Compassionate Grounds was neither called for nor disclosed nor elicited
by the Writ Court while passing the Impugned Order. The Writ Court has
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assumed few facts and has proceeded to disturb the seniority of even those
96 Promotees who were promoted on 24.11.2012 i.e., even prior to
appointment of the Direct Recruitees as ‘Assistants’ on 18.12.2012.
40. The probation of the 13 persons who were sent for training at the
Bhavani Sagar Batch No.185 by the District Registrar by the aforesaid
proceedings was declared only on 01.07.2013 vide G.O.(3D).No.7
Commercial Tax and Registration (K) Department dated 01.07.2013.
41. The probation of the 1st Appellant/14th Respondent in
W.A.No.2308 of 2022 namely, Mr.M.Sheik Abdullah and the 6th
Appellant/21st Respondent namely, Mr.V.A..Raja in W.A. No.1027 of 2022
as ‘Junior Assistants’ were declared on 01.07.2013 along with 11 others.
This was admittedly after appointment of the Direct Recruitees on
18.12.2012. They were also promoted as ‘Assistants’ thereafter i.e after
appointment of the Direct Recruitees on 18.12.2012.
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42. The 6th Appellant/21st Respondent in W.A.No.1027 of 2022 namely
Mr.V.A.Raja was promoted on 06.01.2014 by the 12th Respondent as an
‘Assistant’ along with 117 persons vide Proceedings bearing
C.No.16714/K1/2013 dated 06.01.2014. Details of the 117 persons are in
Annexure 3 to the aforesaid proceedings. The text of the above Proceedings
dated 06.01.2024 reads as under:-
“ghh;itapy; fz;l Mizapd;go btspaplg;gl;l 2013-2014k;
Mz;Lf;fhd cjtpahsh; gl;oaypy; ,lk; bgw;Ws;s ,izg;gpy;
fyk; 3y; fz;l ,sepiy cjtpahsh;fs; kw;Wk; jl;lr;rh;fs;
,izg;gpy; fyk; 6y; fz;l gjpt[ khtl;lj;jpy;-mYtyfj;jpy;
cjtpahsh;fshf epakdk; bra;ag;gLfpwhh;fs;/
2/,th;fs; cjtpahsuhf epakdk; bra;ag;gl jFjp
bgw;Ws;sdh; vdr; rhd;W mspf;fg;gLfpwJ/ ,th;fs;
cjtpahsuhf gzpapy; nrUk; ehs; Kjy; cjtpahsh;
gjtpf;fhd Cjpa tpfpjj;jpy; Cjpak; bgw jFjpa[ilath;fs;/
3/,th;fSf;F cld; gzpapl epakd Miz
gpwg;gpf;FkhWk;. Gzpapl Miz bgwg;gl;lt[ld; rk;ke;jg;gl;l
egh;fis gzpapypUe;J tpLtpj;J. g[jpa mYtyfj;jpy;-gjtpapy;
gzpapy; nru mwptW [ j;JkhWk;. ,th;fsJ gzptpLg;g-
[ gzp nrh;
gjpthsh;fs;-Jizg;gjpt[jJ ; iwj; jiyth;fs;
nfhug;gLfpwhh;fs;/”
43. Among 117 persons included some of who were appointed on
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compassionate grounds as “Junior Assistants” and others as “Typists”.
The aforesaid proceedings of the 12th Respondents also disclosed their
respective seniority among the ‘Assistants’ in the Registration Department.
44. The Writ Court should have ascertained as to how many of the
‘Junior Assistants’ were appointed on compassionate grounds and were
promoted as ‘Assistants’ vide Proceedings bearing C.No.16714/K1/2013
dated 06.01.2014.
45. Pursuant to the above, the services of the Promotees as
‘Assistants’ who were promoted to the post of ‘Assistants’ from the post of
‘Junior Assistants’ were regularized on various dates from the year 2014.
46. The services of the 6th Appellant/21st Respondent in
W.A.No.1027 of 2022 namely Mr.V.A.Raja as an ‘Assistant’ was later
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regularised vide Order dated 17.11.2014 by the 12th Respondent. The
services of the 1st Appellant/14th Respondent in W.A.No.2308 of 2022
namely, Mr.M.Sheik Abdullah, as an ‘Assistant’ was regularized by the 12th
Respondent from the date of 10.01.2014 vide Proceedings bearing
C.No.5119/A1/2010 dated 18.11.2014.
47. Details of the other Promotees are not clearly disclosed in the
Order. As mentioned above in Paragraph No.5 of the Affidavit filed in
support of the Writ Petition by the Direct Recruitees, the details of the
actual date of appointment and the retrospective seniority given to
Promotees has been tabulated. I have summarized Paragraph No. 5 of the
Affidavit filed in support of the Writ Petition later in this Order.
48. Accordingly, the Registrar/Head of the Department of Sub
Registration Department of the concerned Districts were requested to make
a relevant note regarding their appointment in the Register of Assistants and
to inform the details thereof.
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49. Meanwhile, the probation for about 129 Direct Recruitees out of
320 Direct Recruitees were declared on 18.03.2016 who were
recruited/appointed in the year 2012 on 18.12.2012 and 23.12.2012 as
‘Assistants’ directly pursuant to the aforesaid Government Orders and
Recruitment Notification on the dates mentioned in Column No.5 to the
Annexure in the aforesaid Notification of the Registrar were declared on
18.03.2016.
50. The 6th Appellant/21st Respondent in W.A.No.1027 of 2022 was
rightly conferred promotion along with 96 of his other contemporaries who
were earlier promoted as ‘Assistants’ with effect from 24.11.2012 and
whose names were included in the seniority list for the Panel Year 2012-
2013. If these Promotees were entitled to the promoted with retrospective
dates, the Direct Recruitees who were appointed on 18.12.2012 and
23.12.2012 cannot have any legitimate grievance as there is no vested right
to claim seniority without the Direct Recruitees actually possessing requisite
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qualification under the Rule prior to preparation Seniority List for the Panel
Year 2011-2012 and Panel Year 2012-2013 or during subsequent panel
years.
51. A reading of the above Order and considering the fact that the
name of a person junior to the 6th Appellant/21st Respondent were included
in the Seniority/Selection List for promotion to the post of ‘Assistant’ for
the Panel Year 2011-2012, indicates that though the said 6th Appellant/21st
Respondent in W.A.No.1027 of 2022 was fully qualified to be promoted to
the post of ‘Assistant’ during the Year 2011-2012, his name was not
included earlier in the Seniority List for the Panel Year 2011-2012. He was
not promoted for no fault. The delay in regularizing his services as a
‘Junior Assistants’ was not attributable to the 6th Appellant/21st Respondent
in W.A.1027 of 2022.
52. The delay in sending the 6th Appellant/21st Respondent and
other Promotees for training by the Official Respondents cannot be their
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disadvantage if they had requisite qualification for regularizing their service
as ‘Junior Assistants’ and for being promoted prior to the appointment of the
Direct Recruitees of the Private Respondent on 18.12.2012/23.11.2012.
53. Therefore, the name of the the 6th Appellant/21st Respondent be
included in the Seniority/Selection List at S.No.11(a) behind one Mr.
M.Elango at S.No.11 and before S.No.12 namely, Mr.A.Kumaraguru in the
list by fixing the date of notional Promotion as 24.11.2011 vide Proceedings
dated 20.03.2017.
54. Further, in Paragraph No.6 of the aforesaid order, it was ordered
that based on the above declaration, the 6th Appellant/21st Respondent
should be paid the salary as stated in the Proceedings dated 20.03.2017.
Consequently, the Registrar was directed to make suitable changes.
55. Pursuant to the aforesaid Proceedings dated 20.03.2017, the 12th
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Respondent prepared a consolidated revised Seniority List vide
Proceedings dated 02.02.2018 for the promotion of serving ‘Assistants’ to
the post of ‘Sub Registrar Grade – II’ from the post of ‘Assistants’ under
Tamil Nadu Registration Subordinate Service Rules.
56. Strangely, only after the above revised Seniority List was prepared,
vide Proceedings dated 02.02.2018 of the 12th Respondent, Writ Petition
was filed, even though the mere inclusion in the seniority list ipso facto
does not result in automatic promotion to the next higher post. The names in
the Seniority list will have to be based on the date of qualification which
an employee possess as per Rules 13-A of the Tamil Nadu Ministerial
Service Rules which the Writ Court failed to address.
57. In the consolidated list, all the persons who were appointed as
‘Junior Assistants’ in the year 2007 and had obtained the necessary
qualification were placed above the Private Respondents (Direct Recruitees)
who were appointed on 18.12.2012/23.12.2012 whose probation were
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declared on 18.03.2016.
SUBMISSIONS MADE BY THE COUNSELS FOR APPELLANTS
(PROMOTEES) IN THESE WRIT APPEALS:-
58. Mr.A.Palaniappan and Mr.M.Ravi, learned counsels for the
Appellants in the respective Writ Appeals contended that the impugned
Order of the Writ Court is unsustainable and is therefore liable to be
interfered with, as the seniority given to the Appellants (Promotees) who
were appointed much earlier to the Private Respondents (Direct Recruits)
has been ordered to be downgraded by virtue of the Impugned Order of the
Writ Court.
59. The learned Counsels for the Promotees submits that the
appointment of the Appellants (Promotees) as ‘Junior Assistants’ on
compassionate grounds is an appointment approved by virtue of the policy
of the Government and the Statutory Rules and that as such the appointment
of Appellants by way of ‘Direct Recruitment’ on compassionate grounds to
the post of ‘Junior Assistant’ in the year 2007 is neither a back door entry
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appointment or unapproved ad-hoc appointment, de-hors the Rules.
60. It is submitted by the Counsels for the Promotees that the
Promotees have not marched over the Direct Recruitees in the Seniority List
against the posts sanctioned to be filled by way of Direct Recruitment. It is
submitted that the Government Orders paving way for direct recruitment to
the post of ‘Assistants’ was concerned only on 09.04.2010 and earmarked
50% of the sanctioned vacancies to be filled by way of direct recruitment,
thereby making it that more than 320 sanctioned vacancies to be filled by
way of Transfer/Promotion from the post of ‘Junior Assistants’. It is stated
that these Promotees were eligible to be promoted as ‘Assistants’ even
before G.O.Ms.No.47, Commercial Taxes and Registration Department
dated 09.04.2010.
61. It is submitted by the learned Counsels for the Promotees that the
compassionate appointment of the Promotees in the year 2007 was initially
made on a temporary basis after verifying the requisite qualifications of the
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candidates only for the limited purpose of awaiting the approval of the
Government.
62. Therefore, it is submitted by the learned Counsels for Promotees
that the difference between those who were appointed on temporary basis
under Rule 10(a)(i)(1) of the Tamil Nadu State and Subordinate Service
Rules, without following the procedure provided under the aforesaid rules
and the appointment made on compassionate grounds would be distinctly
clear from the text of the aforementioned Government Orders.
63. It is submitted that Section 18, 3(2) and 20 of the 2016 Act,
[Formerly, Rule 10A, Rule 2(14) and Rule 12(bb) of the Tamil Nadu State
and Subordinate Service Rules, would make it clear that appointment on
compassionate grounds is statutorily approved appointment that falls under
the method of ‘Direct Recruitment’.
64. It is submitted by the Promotees that the scheme of compassionate
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appointment is approved by the Statutory Rules i.e., the Tamil Nadu State
Subordinate Service Rules and that the aforesaid legal position of
compassionate appointment being an approved method of appointment has
not been considered by the Writ Court. It is submitted that it cannot be
contended that compassionate appointment is an unapproved appointment,
dehors the Rules.
65. In this context, it is therefore stated that only in such cases of
temporary appointments to the posts that are not exempted from the purview
of TNPSC, contention that such temporary services till the date of regular
appointment shall not be taken for the purposes of seniority could be raised.
It further submitted that in the present case, the initial appointment of the
Promotees was made on compassionate grounds which are exempted from
the purview of the TNPSC or by resorting to appointment through
employment exchange and further with requisite qualification against the
sanctioned posts.
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66. It is further submitted by the learned Counsels for Promotees that
the power to relax the Rules conferred under Rule 48 of the Tamil Nadu
State and Subordinate Service Rules were invoked by the Government only
for the purpose of relaxing the relevant Rules for declaration of completion
of probation of the Promotees as Junior Assistants with effect from the date
of their initial appointment owing to the administrative delay in regularising
the services of the Promotees.
67. It is submitted by the counsels for Appellants (Promotees) that in
accordance with proviso to Rule 35(aa) of the Tamil Nadu State and
Subordinate Service Rules, the Appellants (Promotees) are deemed to have
joined as ‘Assistants’ as on the date of promotion of their juniors by the
same method of recruitment for the purpose of fixation of inter-se seniority.
68. While contending the precedents relied on by the Respondents, it
is submitted by the Counsels for the Appellants (Promotees) that the
judgment in V.Sreenivasa Reddy & Ors Vs. Government of A.P. and Ors
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would not apply to the present case, as in the aforesaid case, temporary
appointee was appointed in the quota for direct recruitment on a temporary
basis and that the appointment was only subsequently made in accordance
with the Rules. Therefore, there the Court held that the services rendered by
the candidate prior to his appointment in accordance with law cannot be
countenanced for seniority.
69. Further, the learned Counsels for the Promotees also distinguished
the decision of the Hon’ble Supreme Court in K.Madalaimuthu and Ors
Vs. State of Tamil Nadu from the facts of the present case stating that there
it a clear case of a temporary appointee encroaching upon the vacancy
meant for Direct Recruitment and it was held by the Court that the person
who was appointed temporarily, cannot be said to be in service till the
appointment is regularized which has no bearing on the facts and
circumstances of the present case.
70. It is submitted by the learned Senior Counsel for the Promotee
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that the decision in M.P.Palanisamy and Ors Vs. A.Krishnan, that it was a
case of between Direct Recruits PG Assistants and promotee PG Assistants,
wherein the Court held that the Promotee PG Assistants appointed on a
‘temporary basis’ and whose services were regularised subsequently cannot
supersede the Direct Recruit PG Assistants though the date of appointment
of the former is earlier than the latter.
71. Therefore, it was submitted by the learned Counsels for the
Appellants (Promotees) that it is a settled principle that no one could be
deprived of service benefits on par with their juniors for no fault of theirs,
and that the Appellants (Promotees) are deemed to have joined the
promotional post of ‘Assistants’ on the respective dates on which their
immediate juniors were appointed as ‘Junior Assistants’ by direct
recruitment by applying the provisions of Rule 35(aa) of the Tamil Nadu
State and Subordinate Service Rules. Hence, it is submitted that the
Appellants (Promotees) are rightfully seniors in the inter-se seniority by
virtue of their deemed date of joining as ‘Assistant’.
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72. It was therefore submitted by the learned Counsels for the
Promotees that in accordance with the settled principles of service
jurisprudence that no employee can be deprived of empanelment and
promotion on account of any administrative delay in passing necessary
orders or for want of service qualification in training, if the lapse is on the
part of the Official Respondents and on the part of the delinquents.
73. Therefore, it is stated in the present case, the Promotees were
rightly given seniority and promotion on par with the Direct Recruits as the
delay in declaring the probation of the Promotees as ‘Junior Assistants’ were
on part of the Official Respondents.
74. In this connection, the learned counsels for the Appellants
(Promotees) relied on the followings decisions of Courts:-
1. C.O.Arumugam & Ors Vs. State of Tamil Nadu &
Ors, 1991 Supp (2) SCC 199.
2. Vasant Rao Roman Vs. Union of India & Ors, 1993
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3. Santhosh Kumar Vs. State of A.P. & Ors, (2003) 5
SCC 511.
4. P.N.Premchandran Vs. State of Kerela & Ors, (2004)
1 SCC 245
5. The Director Vs. V. Illango in W.A.(MD). No. 597 of
2022 dated 02.02.2024.
6. P.Bhaskaran & Ors Vs. Government of Tamil Nadu &
Ors in W.A.No.302, 425 & 855 of 2014 dated
28.05.2015.
75. On the other hand, defending the Impugned Order of the Writ
Court, it is submitted by the learned Senior Counsel for the Private
Respondents (Direct Recruitees) and the counsel for the Official
Respondents that the Impugned Order of the Writ Court is well reasoned
and does not warrant any interference. Therefore, prays for dismissal of
these Writ Appeals.
SUBMISSIONS MADE ON BEHALF OF THE PRIVATE
RESPONDENTS (DIRECT RECRUITEES/WRIT PETITIONERS) IN
THESE WRIT APPEALS:-
76. It is submitted by the learned counsel for the Direct Recruitees
that they were appointed as ‘Assistants’ on 18.12.2012 by way of direct
recruitment by the Tamil Nadu Public Service Commission. It is stated that
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the actual date of appointment of the Promotees to the post of ‘Assistants’
was only in the year 2014 and that their service in the post of ‘Assistants’
was regularized only with effect from 10.01.2014.
77. It is however submitted by the learned Senior Counsel for the
Direct Recruitees that the Promotees were actually appointed on a later date
and that they were allowed to steal a march over the Direct Recruitees in the
Seniority List based on the retrospective regularization of service in the post
of ‘Junior Assistants’ while their appointment of ‘Assistants’ by way of
promotion in itself was only regularized in the year 2014.
78. It is further submitted by the learned counsel for Direct Recruitees
that since the Promotees were appointed on compassionate grounds, after
regularization of service, the Promotees were deputed to the Bhavani Sagar
Training Institute and only after the completion of their training the
probation of the Promotees were declared. Therefore, it is submitted that the
claim of the Promotees that as per Rule 32(a)(i) of the Tamil Nadu
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Ministerial Service Rules must be declared within 2 years from the date of
their initial appointment cannot be countenanced.
79. It is submitted by the counsel for the Direct Recruitees that the
appointment of the Promotees in itself are de-hors the rules and ad-hoc in
nature as stated in their Appointment Order and that the said Appointment
Order in itself is temporary. It is stated that the Promotees could commence
their probation only when their services as ‘Junior Assistant’ is regularised.
Therefore, it is submitted that they cannot claim seniority in the post of
‘Assistant’ from the date when the Promotees were not working even on a
temporary basis in the said post.
SUBMISSIONS MADE ON BEHALF OF THE OFFICIAL
RESPONDENTS:-
80. It is submitted by the Official Respondents that due to
administrative reasons, there was a delay in sending the Promotees for
training to Bhavani Sagar Training Institute and their probation could not be
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declared. Therefore, it is submitted by relaxing Rule 34(a) of the Tamil
Nadu State and Subordinate Service Rules their probation was declared
from the date of their initial appointment and was subsequently appointed to
the post of ‘Assistants’ as they had cleared all the Departmental Tests and
qualified to hold the post of ‘Assistants’ in the year 2010 in itself.
81. It is submitted that the 12th Respondents, based on the
representation given by the Promotees and acting well within the service
rules restored the seniority of the Promotees in the Seniority List for
promotion to the post of ‘Sub-Registrar, II Grade’.
82. It is further submitted by the Official Respondents that the inter
se seniority of Promotees and Direct Recruitees are governed by the proviso
to Clause (2) to Section 40 of the 2016 Act [formerly, Rule 35(aa) of the
Tamil Nadu State and Subordinate Service Rules] which states that seniority
should be reckoned from the date of appointment. It is therefore stated in
accordance with the aforesaid Rule the consolidated Seniority List of the
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‘Assistants’ for promotion to the post of Sub-Registrar, II Grade’ was issued
by the 12th Respondent.
83. It is submitted by the Official Respondents that the panel for
promotion to the post of ‘Sub-Registrar, II Grade’ from the year 1997 till
date was revised by providing the rule of reservation as per the law laid
down by the Hon’ble Supreme Court. It is further submitted due to the
pendency of these Writ Appeals and issue of inter se seniority between the
Promotees and Direct Recruitees, the Official Respondents are unable to fill
the vacant posts in the cadre of ‘Sub-Registrar, II Grade’ and other higher
cadres.
84. Therefore, it is submitted by the learned counsel for the Official
Respondents that if the seniority is fixed as directed by the Writ Court and
as per the contentions of the Private Respondents, it is stated that it would
unsettle the settled position of law leading to multiple litigations and that it
would also be contrary to the settled principles of law as laid down by the
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Hon’ble Supreme Court.
85. In this connection, the learned Senior Counsel for the 1 to 10
Respondents/Writ Petitioners relied on the following decisions of the
Courts:-
1. V.Sreenivasa Reddy & Ors Vs. Government of Andhra
Pradhesh,
7. S.P.Pethel Raj Vs. V.Vairappan in W.A.No.1704 batch of 2010
dated 18.09.2012.
IV.DISCUSSION:-
86. In Paragraph No. 51 and 52 of the Impugned Order, the Writ
Court has captured the essence of the dispute before it. For the sake of
clarity, Paragraph No. 51 and 52 of the Impugned Order of the Writ Court in
W.P.No.22342 of 2019 is captured below:-
86
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WA.Nos.1027 & 2308/2022“51. The issue raised in this writ petition is pure and
simple and can be put in a straight jacket perspective as
to whether in the facts and circumstances, the private
respondents can said to be appointed as Assistants on
regular basis in terms of the rule position, justifying
their seniority position over and above the petitioners or
not?
52. From the detailed factual narrative as above, the
dates of appointment of the petitioners and the private
respondents are not in dispute. The dispute is only with
reference to retrospective regularization of the private
respondents as Junior Assistants and the consequential
grant of retrospective promotion as Assistants and the
attendant benefit of seniority from 2010 or so. In order
to deal with the rival contentions, with reference to the
core consideration of this Court, it is essential that the
technical objections raised on behalf of the respondents
need to be addressed first to clear the path towards
unraveling of the nucleus of the lis before this Court.”
87. On the technical objection raised by the Promotees, the Writ Court
in the Impugned Order observed as under:-
“53. The first of the technical objections raised is
that these petitioners have not challenged the relaxation
orders granted in favour of the private respondents which
gave raise to the conferment of consequential benefit of
retrospective promotion as Assistant and the attendant
seniority. In the opinion of this Court, such objection may
not be sustainable for the reason that these petitioners
cannot said to have been aggrieved by the grant of
relaxation (of rules) in favour of the private respondents
as the benefit of relaxation and its impact, is entirely87
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WA.Nos.1027 & 2308/2022personal to the persons whose favour the orders were
passed. The petitioners herein could not have had any
stake in such benefit being conferred on the promotee
Assistants. The heart burn comes only when the
relaxation benefit of seniority tramples upon the rights
of the petitioners in having proper seniority assigned to
them over and above the private respondents.
54. As rightly contended by the learned Senior
Counsel, as long as the benefits of relaxation are confined
and restricted in the realm of personal enjoyment of the
petitioners like earning of increment, counting of the
years for other service benefits like promotion, pension
etc., from the date of their initial appointment, such
benefits would not have invited the present challenge.
But, when such relaxation has its adverse and onerous
effect on the seniority of the directly recruited petitioners
as reflected in the impugned seniority list, all of a
sudden, the petitioners rightly felt aggrieved and
approached this Court for redressal of their grievance. It
cannot be therefore gainsaid that these petitioners,
having not chosen to challenge the relaxation orders,
cannot be allowed to challenge the consequential
seniority list. Such objection on the part of the both
official and private respondents, cannot be countenanced
both in law and on facts.
88. The above observations and conclusions are flawed as no attempt
was made to examine the factual details of the date of
appointment/promotion of Promotees and Assistants as in the Table to
Paragraph 5 of the Affidavit filed in support of the Writ Petition.
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89. As far as the core issue relating to inter-se seniority between the
Promotees and Direct Recruits are concerned, the discussion leading to the
above conclusion of the Writ Court in the Impugned Order starts from
Paragraph Nos. 57 to 84 which is extracted hereunder for a clearer
understanding:-
“57. Now, reverting to the principal and the core
controversy, it is imperative and essential to delve into the
rule position, governing the service conditions of the
petitioners as well as the private respondents with particular
reference to the dates of their appointments. As far as the
petitioners are concerned, all of them have come through
selection by the Commission, in pursuance of the notification
dated 30.12.2010 and were appointed by order dated
18.12.2012. Although the learned Senior Counsel originally
contended that the petitioners were appointed against the
vacancies of the year 2009~10, but, the G.O referred above,
particularly, G.O.(D).No.183, Commercial Taxes and
Registration Department dated 31.05.2010, notify the
vacancies of the year 2010~11.
58. The said G.O stated that the estimated vacancies
earmarked for direct recruitment were of the year 2010~11.
All the 320 vacancies identified for the year were earmarked
for direct recruitment. In order to appreciate the inter se
claim of the parties, it is very relevant and useful to refer to
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the contents of the two Government Orders which were the
basis of the Commission-s notification issued subsequently
on 30.12.2010. The Government Order G.O.Ms.No.47,
Commercial Taxes and Registration Department dated
09.04.2010, was issued with reference to filling up enormous
number of accumulated vacancies in the cadre of Assistants
in Registration Department which had not been filled up
over the years. In the order, it was disclosed that due to
non~filling of hundreds of vacancies, there were practically
no Assistants available for promotion to the next higher post
of Sub~Registrar Grade II. In the above said backdrop, the
recruitment process was set in motion for direct recruitment
of Assistants for the first time. The contents of
G.O.Ms.No.47, Commercial Taxes and Registration
Department dated 09.04.2010, as found in paragraph Nos.2
to 4 are re~produced hereunder:
2.The Inspector General of Registration has
also stated that under the Ministerial Service
Rules, the post of Assistants in the Registration
Department are to be filled up only by way of
recruitment by transfer from the categories of
Junior Assistants and Typists, who have completed
probation and have passed the prescribed
departmental tests. There is no provision in the
Tamil Nadu Ministerial Service Rules for direct
recruitment of Assistants in Registration
Department. The number of substantive posts in
the cadre of Assistant under the Ministerial Service
in the Registration Department is 1320. There are
a huge number of vacancies in the post of
Assistants and there is shortage of Junior
Assistants for getting promotion as Assistants,
since there was ban on recruitment for above five
years from the year 2001. It has also to be90
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category for the post of Sub~Registrar Grade II
numbering 385 posts. As there is enormous
number of vacancies in the post of Assistants, a
situation has arisen wherein there are no
Assistants available to be promoted as
Sub~Registrar Grade II. He has therefore sent
proposal to Government to earmark 50% of the
substantive vacancies in the post of -Assistant- in
Registration Department under direct recruitment,
on regular basis, through Tamil Nadu Public
Service Commission.
3. The Tamil Nadu Public Service
Commission was consulted on the above proposal
of the Inspector General of Registration. The
Tamil Nadu Public Service Commission while
agreeing to the proposal of filling up the 50% of
the substantive vacancies in the post of Assistant in
the Registration Department by direct recruitment,
on a regular basis, through Tamil Nadu Public
Service Commission has stated that the post of
Assistant in the Registration Department shall be
classified as “Non-Technical” and included under
the combined Subordinate Services Examination-I
for Direct Recruitment. The qualification of “Any
Degree” shall be prescribed for this post to be
filled by Direct Recruitment as is being prescribed
for the posts of Assistant in various departments
included under Category-12 of Rule-2 of the
Special Rules for the Tamil Nadu Ministerial
Service. The unit for the purpose of allotment shall
be “State” as is being maintained for the post of
“Junior Assistant” in Registration Department.
The Commission has requested the Government to
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issue necessary executive orders on the above lines
and consequently, to send necessary draft
amendment to the Special Rules for Tamil Nadu
Ministerial Services for the Commission’s Views.
4. In the circumstances, the Government accept
the proposal of the Inspector General of
Registration and direct that 50% vacancies be
earmarked under direct recruitment in the
substantive post of Assistant in Registration
Department every year. On a regular basis,
through Tamil Nadu Public Service Commission.
The Government also direct that the post of
“Assistant” in the Registration Department shall
be classified as “Non-Technical” and included
under the Combined Subordinate Services
Examination~I for Direct Recruitment and the
Unit for the purpose of allotment shall be “State”.
59. On the basis of the above Government Order,
subsequently, another G.O. was issued in G.O.D.No.183,
dated 31.05.2010, by the Department of Commercial Taxes
and Registration. The G.O. reads as under:
“2. The Government have examined the
proposal of the Inspector General of Registration
in the letter 2nd read above and direct that the
estimate of vacancies in the post of -Assistant- be
fixed as 320 for the year 2010-11 for direct
recruitment, through Tamil Nadu Public Service
Commission. Since the Service Rules for
apportioning direct recruitment of Assistant in
the Registration Department has not yet been
amended, the Government have decided to grant
one time exemption for filling up of vacancies for
the post of Assistant by direct recruitment
through Tamil Nadu Public Service Commission92
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WA.Nos.1027 & 2308/2022and orders accordingly.”
60. The above G.O. clearly stated that the vacancies in the
cadre of Assistants to be fixed as 320 which cadre strength
was approximately 50% of the estimate of the vacancies for
the year 2010-11 by direct recruitment. Although the rules do
not provide for filling up of post of Assistant by direct
recruitment, a one time exemption was granted for the
purpose of overcoming the acute crisis faced by the
Department due to shortage of sufficient number of
Assistants in the Department. In order to tide over the
administrative crisis, the Department resorted to direct
recruitment and thus came the notification by the
Commission on 30.12.2010. The petitioners herein
admittedly were selected and appointed by the Commission
pursuant thereto and subsequently, the appointment orders
were issued on 18.12.2012, appointing the petitioners as
Assistants.
61. In appreciation of the above factual backdrop
which preceded the selection and appointment of the direct
recruit petitioners, there is no scope for entertaining any
doubt by this Court that these petitioners have encroached
upon any quota meant for promotees, while they were
appointed as per the above two Government Orders. The
earmarked vacancies for direct recruitment constituting 50%
of the total sanctioned strength at that point of time were 320
and these petitioners came to be appointed in pursuance of
such identified vacancies meant exclusively for them. In such
categorical scenario, the seniority of the petitioners herein
has to be reckoned either from the date of their appointment
or from the date of the notification of the Commission, as the
case may be.
62. As far as reckoning of seniority of the petitioners
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from the date of their appointment is concerned, there cannot
be any controversy at all, as being direct recruits, appointed
against substantive vacancies, their seniority was to be
assigned from the date of their appointments. Be that as it
may, before adverting to other limb of the dispute whether
these petitioners were entitled to take their seniority from the
date of the Commission-s notification, this Court is inclined
to factually examine as to whether the private respondents
could said to have been appointed regularly ahead of the
petitioners, with reference to the detailed submissions of the
respective counsels on the basis of the materials made
available on record.
63. The learned Senior Counsel Mr.V.Prakash, in the
course of his submissions, has drawn the attention of this
Court to two proceedings of the department viz., the
proceedings dated 24.11.2012 and 06.01.2014. In the
proceedings relate to the promotion of private respondents
from the post of Junior Assistants to Assistants, it could be
deduced that on the date when the petitioners were directly
recruited and appointed to the post of Assistants, many of the
private respondents continued to be working as Junior
Assistants, their successful completion of probation not
being declared owing to non~completion of the training
programme which was mandatory for regularising their
services as Junior Assistants.
64. In the first of the proceedings dated 24.11.2012, it
was mentioned that the appointment of promotee Assistants
was against the vacancies 2012-13 and in the second of the
communication dated 06.01.2014, it was mentioned as 2013-
14. It is therefore factually established that the private
respondents/promotees had been promoted as against the
subsequent vacancies which arose in 2012-13 and 2013-14,
whereas the petitioners herein had been directly recruited in
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respect of the vacancies of the year 2010-11.
65. While above being the factual position, when the
seniority list was notified dated 02.02.2018, the private
respondent/promotees were shown senior to these petitioners
by advancing their date of regular appointment as Assistants
in 2010, 2011 and 2012, ahead of these petitioners. The
direct recruits have shown to have been appointed as
Assistants only in 2013. What is the basis of antedating the
promotion of the private respondent promotees is not
explained properly or convincingly either by the learned
Additional Advocate General or by the learned counsel
appearing for the private respondents. The only reason that
has been pressed into service by the learned counsels is there
was an administrative delay in deputing them to the
mandatory Bhavani Sagar Training for the purpose of
declaring their probation as Junior Assistants and the fault
of the administration ought not to affect the career
progression of the promotees. The above explanation may
appear to be plausible and valid on the precipitative
understanding of the case, however, looking at it from the
perspective of clash of interest as between the direct recruits
and promotees, the explanation may not be held to be valid.
66. In 2010, none of the private respondents/promotees
was said to have acquired eligibility for regular appointment
as Assistants, as at that point of time, they were working as
Junior Assistants and their probation was yet to be declared
due to non~completion of the mandatory training. In such
admitted circumstances, pitchforking the private respondent
promotees into the slots exclusively meant for direct recruits
in terms of the above referred two Government Orders,
cannot be countenanced both in law and on facts. Firstly, the
private respondent promotees were not eligible and qualified
to be appointed as regular Assistants in 2010. Secondly,
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when admittedly the direct recruits were regularly appointed
as Assistants in December 2012, for the vacancies of the
year 2010-11, the claim of the private respondent promotees
that they were originally appointed in 2007, as Junior
Assistants and that they had successfully qualified in the
departmental examination in 2010 itself and therefore they
were entitled to be regularized from the date of their initial
appointment as Junior Assistants with all benefits including
promotion to next higher grade and seniority, is untenable
and contrary to the law on the subject. Such retrospective
regularization and the consequent promotion may hold good
only towards personal service benefits like counting of
service for the purpose of earning their increments,
acquiring eligibility for promotion to the higher grades,
calculation of pension etc. But, when it comes to seniority as
between direct recruits and promotees, the claim of the
promotees must be adjudged with reference to the rules and
legal principles laid down by the Courts on the subject
matter.
67. As far as the rule position is concerned, the
learned Senior Counsel for the petitioners referred to Section
3 of the 2016 Act, a comprehensive Act replaced the earlier
Tamil Nadu State and Subordinate Service Rules. According
to him, appointed to a service means, appointment in
accordance with the provisions of the Act. According to him,
the private respondent promotees were initially appointed
not in accordance with the provisions of the Rules or the Act
and subsequently, relaxation was granted to them. However,
this Court is not inclined to go into those aspects for the
simple reason that as long as the appointment of the private
respondent promotees did not clash with the interest of the
petitioners, they cannot stated to be aggrieved.
68. The learned Senior Counsel sought to emphasize
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the fact that the initial appointments being irregular as
compassionate appointees, the private respondent
promotees’ regularisation was dependent on the relaxation to
be granted to them in terms of the Act and the Rules
governing the service conditions. On the day when the
petitioners were appointed, the private respondent promotees
could not said to have been fully eligible and qualified for
regular appointment as Assistants. This Court is in
agreement with the submissions made by the learned Senior
Counsel on this aspect.
69. On behalf of the private respondents, with
reference to the rule position, reliance was placed on Section
35(aa) of the erstwhile Tamil Nadu State and Subordinate
Service Rules replaced by Section 40(2) of the Act, 2016,
both are extracted hereunder:
“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
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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, their inter se seniority shall be decided with
reference to their age.?
40.Seniority
(1)…………………………
(2) 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 service, 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
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the service, class, category or grade on the same
day, their inter se seniority shall be decided with
reference to their age.”
According to the learned counsel, the date of
appointment to the service, class or category
alone should be reckoned when appointment is
by more than one method of recruitment in terms
of the above provisions.
70. The said contention is not supported by Section
3(b) of the Act which has been extracted supra. The date of
appointment should be read as date of regular appointment
and if the provision is to be applied, the private respondent
promotees cannot claim themselves as being appointed
regularly as Assistants in 2010, affecting the seniority of the
petitioners. But, as far as their personal benefits are
concerned, after due relaxation granted by the Government,
their service from the date of initial appointment could be
counted.
71. Be that as it may, the claim of the petitioners
herein gets further fortified by application of Section 3(r)
of the Act, 2016. Sub~Clauses (q) and (r) are once again
extracted hereunder, to elucidate the position of promotees
and direct recruits on their appointments to service:
“(q) “promotion” means the appointment of a
member of any category or grade of service or class of
service to a higher category or grade of such service or
class;
(r) “recruited direct to a service” means when a
candidate, in case his first appointment to a service, class
or category has to be made in consultation with the
Commission, on the date of its notification inviting
applications for the recruitment and in any other case, at
the time of his first appointment thereto, he is not in the
service of the Government of India or the Government of a99
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Provided that, for the purpose of this definition, a
person shall be deemed to be not in the service of the
Government of India or the Government of the State,
(i) if a period of five years has not elapsed since his
first appointment to a service of the Government of India
or the Government of a State; or
(ii) if he belongs to the Scheduled Castes, Scheduled
Tribes or Backward Classes;”
72. As far as the promotion means appointment of a
person from any category to higher category or grade which
means that appointment must be regular in terms of the Act.
As far as the direct recruit in consultation with the
Commission is concerned, he or she is deemed to have been
appointed from the date of the notification inviting
application for the recruitment. If this sub~clause is to be
pressed into service, the date of appointment of these
petitioners ought to have been considered from 30.12.2010,
in which case, the claim of higher seniority by the private
respondent promotees by no means can said to be in
consonance with the rule position. In the said circumstances,
the present fixation of seniority in terms of the impugned
communication dated 02.02.2018, is in contravention of the
rules and the same therefore cannot stand the test of judicial
scrutiny.
73. Apart from the rule position as explained above,
the case laws cited on behalf of the parties needed to be
examined. On behalf of the petitioners, the decision of the
Hon’ble Supreme Court of India in the case of V.Sreenivasa
Reddy and Ors Vs. Govt. of A.P. and Ors in C.A.Nos.6575-
6580 of 1994 dated 05.10.1994 was cited and the operative
portions of the ruling have also been extracted supra. The
observations of the Hon-ble Supreme Court in the said
decision are pointedly relevant and crucial for settling the lis
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between the petitioners and the private respondent
promotees herein. The following observation of the Hon-ble
Supreme Court in the judgment, is once again extracted
hereunder:
“Under Rule 23(a) of the Rules, the
temporary appointee, if sub~sequently
appointed to a post borne on the cadre of any
service, class or category in accordance with
the Rules, shall commence his probation “from
the date of such subsequent appointment or
from such earlier date as the appointing
authority may determine”, Under Rule 33{a),
the seniority of such temporary employees
under rule 10(a)(i)(l), Such temporary service
does not count towards probation or his
seniority, shall not be determined by the date of
the commencement of his service which counts
towards probation. It would thus be clear that
by operation of Special Rules and Rules, that
PSC candidates gets his seniority from the date
on which he starts discharging his duties on the
post borne on the cadre and his seniority shall
be determined with effect from that date while
the temporary appointee under Rule 19(a)(i){l)
who is subsequently appointed in accordance
with the Rules, the temporary service rendered
prior to his appointment shall not be counted
towards his seniority or the temporary service
even if counted towards probation shall not be
counted for the purpose of seniority. Obviously
to achieve the same result clause (3) of G.O.Ms.
No. 413 dated August 29, 1983 directed that the
temporary service of the temporary employee
should be regularised from the date subsequent101
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WA.Nos.1027 & 2308/2022to the last regular candidate or candidates
“appointed“ or allotted for appointment from
the list of successful candidates drawn by PSC
based on the examination last held.?
74. In the above matter, the Hon’ble Supreme Court
has succinctly held that while temporary appointees being
regularized at certain point of time, may count their earlier
services towards probation, but, it shall not be counted for
the purpose of seniority as against the Commission’s
candidates’ seniority which is to be counted on the date when
he starts discharging his duty in the post borne on the cadre.
In fact, the entire ruling of the Court and the relevant
paragraphs extracted supra would squarely support the case
of the petitioners herein.
75. On behalf of the petitioners, one other decision
was referred in the case of K.Madalaimuthu and Ors Vs.
State of Tamil nadu and Ors in C.A.Nos.2791~2793 of 2002
dated 04.07.2006. In that case, the relevant observations of
the Hon-ble Supreme Court have also been extracted supra,
wherein, the Hon-ble Supreme Court has categorically held
that the person who is appointed temporarily cannot said to
be in service till such appointment is regularized. It is from
the date on which his services are regularized, such
appointee can claim seniority.
76. On the same lines, yet another decision of the
Hon’ble Supreme Court of India has been referred in the
case of M.P.Palanisamy and Ors Vs. A.Krishnan and Ors in
C.A.Nos.3582~84 of 2009 dated 15.05.2009. In that case, the
Hon-ble Supreme Court was dealing with the case of inter se
seniority between the direct recruit P.G.Assistants and the
promotee P.G.Assistants and in that context, held that all the
P.G.Assistants recruited through the Commission who are
already in service cannot be superseded by the
P.G.Assistants appointed temporarily though earlier to direct
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recruits and regularized subsequently. In fact, while
concluding as such, the Hon’ble Supreme Court has referred
to an another judgment of its and its observation in
paragraph No.13, as under:
“Earlier in paragraph No.13, referring to Rule
35(a), according to which, the seniority is fixed,
the Court proceeded to observe:
13. …………..The service rendered in the
temporary post is available either for earning
increments or for commencement of probation.
That would be clear from Rule 23(a). Consistent
with the Rule 23(a), the Government in the order
of regularization has directed that the incumbents
are eligible for increments from the date of their
regularization, as they are fully qualified to hold
the post on that date. The increments already
sanctioned to them during their service as
temporary Junior Professors prior to regular
appointment have been ratified by the said order.
The High Court was plainly in error in ignoring
the statutory rules and the terms and conditions of
the order of regularization of services.” (Emphasis
supplied) The emphasized portion, undoubtedly,
presents out a clear position that the language of
the G.O.Ms., offering regularization, is of utmost
importance. Therefore, it is clear that that second
condition will have to stay as it is.”
77. Here again, the Hon’ble Supreme Court has held
that such retrospective regularization of service could be
available only for earning increment and for commencement
of probation and not seniority. Therefore, for the purpose of
assignment of seniority, the private respondent promotees
certainly cannot claim the benefit of retrospective
regularization of their services as Junior Assistants and then,
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consequent promotion as Assistants over and above the
claim of the petitioners herein.
78. The learned counsel appearing for the private
respondents on his turn has relied upon various decisions
which have been referred to and the relevant rulings of the
Court have also been extracted supra. In the case of Direct
Recruits Class II Engineering Officers- Association Vs. State
of Maharashtra and Ors, reported in 1990 2 SCC 715, the
Hon-ble Supreme Court in a landmark judgment, after
adverting to various case laws, had summed up its ruling in
paragraph No.47. As far as the present lis is concerned, the
learned counsel relied on paragraph B, which is again
extracted hereunder:
“47. To sum up, I hold that:
(A) …………
(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 regularisation of his
service in accordance with the rules, the period of
officiating service will be counted.”
79. According to the learned counsel that these
petitioners who were continued in service, were eventually
granted the benefit of regularization in accordance with the
rules and therefore, in terms of the above ruling, their
services ought to be counted for all purposes. In that case,
the Constitution Bench of the Hon’ble Supreme Court was
considering the rules of Engineering Services in the State of
Maharashtra and also with reference to the application of
quota rota rule as between direct recruits and promotees. In
that context, the judgment came to be rendered. The ratio
laid down in that judgment was that when the appointment
was made from two sources, the quota rota rule to be
followed. The reliance placed by the learned counsel based
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on the ruling of the Hon’ble Supreme Court, may not be
valid, as the private respondent promotees’ services were
retrospectively regularized not as Assistants, but, as Junior
Assistants. But, the consideration of this Court is the effect of
such regularization in the feeder grade and their promotion
in the next higher grade viz., the Assistant.
80. Even otherwise, there is no trespassing or
encroachment of the quota meant for the promotees by the
petitioners herein, as stated above. These petitioners had
been recruited against 320 vacancies clearly earmarked for
direct recruitment created for the first time under
G.O.Ms.No.47 dated 09.04.2010 and G.O.D.No.183, dated
31.05.2010. The petitioners herein were slotted in those
vacancies which cannot be altered to their detriment by
super imposing the private respondent promotees in those
slots. Therefore, the decision relied on by the learned
counsel for the private respondent promotees does not
advance their case at all.
81. The learned counsel for the private respondents
also relied on the decision of the Hon’ble Supreme Court
reported in 1984 4 SCC 450 in the case of O.P.Singla and
Another Vs. Union of India and Others. This Court-s
attention has been drawn to paragraph No.30 which has
been extracted supra. The decision was rendered
particularly on the basis of the facts therein and the ruling
cannot therefore ipso facto be imported in the factual matrix
of the present case. The learned counsel referred to two other
decisions of the Hon’ble Supreme Court one is 1998 4 SCC
456 in the case of Jagdish Ch.Patnaik and Ors Vs. State of
Orissa and Ors and the another one is 1999 9 SCC 596 in
the case of Ajit Kumar Rath Vs. State of Orissa and Ors. In
both the decisions, the Hon-ble Supreme Court had dealt
with peculiar factual aspects of those cases and premised its
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decisions on that basis. The decisions as such cannot be
blindly or uncritically applied herein.
82. The learned counsel lastly relied on the learned
division bench order of this Court rendered in W.A.Nos.302,
425 & 855 of 2014, dated 28.05.2015. Although this Court
finds that there are certain observations in favour of the
contentions raised on behalf of the private respondents, yet,
the facts of this case can be clearly distinguished from the
facts of that case. Even otherwise, the learned division bench
had no occasion to refer to the rules which have been
referred to herein which clearly tilted the balance in favour
of the petitioners herein. The learned division bench however
has not laid down any proposition of law having
precedential value as the decision was primarily and
principally rendered in the context of the facts and
circumstances of that case.
83. On the other hand, the relevant rules relied upon
by the learned Senior Counsel for the petitioners read with
the legal principles laid down by the Hon’ble Supreme Court,
fully support the claim of the petitioners herein as against
the private respondents. The learned counsel for the private
respondents made another submission about the issuance of
subsequent G.O.Ms.No.56 dated 17.04.2012, Personnel
Administrative Reforms Department. The order sought to
amend the special rules for any Ministerial Services in
respect of the Registration Department on filling up 50% of
the vacancy in the post of Assistant by direct recruitment.
The learned counsel referred to paragraph No.9 of the Order
which mandate the fixation of inter se seniority between
directly recruited Assistants and the Assistants by promotion,
which is extracted hereunder:
“9.The inter se seniority between the directly recruitd
Assistants and the Assistants appointed by promotion shall106
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General Rules for the Tamil Nadu State and Subordinate
Services.”
84. According to the learned counsel, as per the above
amendment, the date of appointment is a crucial factor for
determining the inter se seniority. This Court has no quarrel
with the submission of the learned counsel. The Rule 35(aa)
and the replaced Section 40(1) & (2) of the Act, 2016, have
already been referred to and considered earlier in this
decision.”
90. In Paragraph Nos. 57 to 84 of the Impugned Order in
W.P.No.23343 of 2019, the Writ Court has discussed the following
Government Orders:-
Table No.2:-
S.No Date G.O.(Ms).No. Implication
1 09.04.2010 47, Commercial Reference to filling up of
Taxes and enormous number of
Registration Dept accumulated vacancies in
the cadre of Junior
Assistants and Assistants
2 31.05.2010 183, Commercial Earmarked the number of
Taxes and vacancies to be filled by
Registration Dept way of ‘Direct
Recruitment’
3 17.04.2012 56, Commercial Adding Annexure IX-C in
Taxes and Tamil Nadu Ministerial
Registration Dept Services Rules and
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S.No Date G.O.(Ms).No. Implication
clarification on inter-se
seniority
91. The Writ Court while passing the Impugned Order dated
03.03.2022 has not taken note in detail of the decision of the Full Bench of
the Hon’ble Supreme Court in O.P. Singla & Anr Vs. Union of India &
Others., 1984 AIR 1595 which had affirmed its earlier decision in
S.B.Patwardhan Vs. State of Maharashtra (1977) 3 SCC 399 which was
recently followed in Rudra Kumar Sain & Ors Vs. Union of India & Ors
(2000) 8 SCC 25. I shall refer to these decision after dealing with the facts
and applicable Rules which interface with each other.
92. The Writ Court instead has made only a passing remark by
observing that “the decision (in Singla case referred supra) was rendered
particularly on the basis of the facts therein and the ruling cannot
therefore ipso facto be imported in the factual matrix of the present
case” ignoring the position of law settled by the Hon’ble Supreme Court
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while delivering its decision in the aforesaid case.
93. The impugned Order of the Writ Court is also contrary to the
decisions of the Hon’ble Supreme Court in State of Bihar & Ors Vs.
Akhousri Sachindra Nath and others, 1991 Supp (1) SCC 334 and
P.Sudhakar Rao & Ors Vs. U.Govinda Rao & Ors, AIR 2013 SC 2533.
94. Errors in the Impugned Order of the Writ Court would not have
crept in, if the facts were examined in depth by the Writ Court before
passing the impugned Order.
95. If these decisions particularly that of the Hon’ble Supreme Court
in Singla case (cited supra) and in Rudra Kumar Sain case and in
Patwardhan case (cited supra) were applied to the facts of the case in a
proper perspective, perhaps the Writ Court would have come to a different
conclusion. I shall elucidate the same.
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96. That apart, if the facts were examined in the light of the
applicable Rules, the decision arrived by the Writ Court in the Impugned
Order would have been different.
97. There is a fallacy in Paragraph No. 52 of the Impugned Order as
96 of 127 Promotees had been promoted as Assistants on 24.11.2012 much
earlier to 18.12.2012/23.12.2012.
98. This is evident from the admission in Table to Paragraph 5 of the
Affidavit filed in support of the Writ Petition by the Private Respondent
Direct Recruitees. Relevant portion of Para 5 and the Table in the Affidavit
filed in support of the Writ Petition is extracted below:-
5. It is submitted that the 3rd respondent Mr.R.Sridhar
was recruited as junior assistant in the year 2007. He was
promoted as an Assistant on 24.11.2012. It is submitted that
Mr.R.Sridhar and those below him in the impugned seniority
list were notionally promoted with effect from 2010 by the
proceeding of 18/K1/2018, dated 02.02.2018 and placed above
the petitioners in the impugned seniority list Mr.R.Sridhar is
placed under Sl.No.113 in the Impugned seniority list and
others like him are placed up to SI.No.113 in the Impugned110
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that is to say from SI.No.113 to 239 in the impugned seniority
list. The service details of Mr.R.Sridhar and others who are
shown as seniors to petitioners is tabulated herein after:
Sl. Name of the Actual Proceedings Notional date Proc., No.in
No person year of No and seniority Impugned
promotion rank assigned Seniority List
with date 02.02.2018
1 R.Sridhar (2012- No.21390/K1 11.06.2010/11 No.18/K1/2018
2013) /2012 3
24.11.2012
2 J.Krithika 24.11.2012 No.21390/K1 11.06.2010/11 No.18/K1/2018
/2012 4
3 R.Anitha 24.11.2012 No.21390/K1 11.06.2010/11 No.18/K1/2018
/2012 5
4 R.Senthilkumar 24.11.2012 No.21390/K1 11.06.2010/11 No.18/K1/2018
/2012 6
5 M.Senthilkuma 24.11.2012 No.21390/K1 11.06.2010/11 No.18/K1/2018
r /2012 7
6 S.Sankar 24.11.2012 No.21390/K1 11.06.2010/11 No.18/K1/2018
/2012 8
7 N.Anand 24.11.2012 No.21390/K1 11.06.2010/11 No.18/K1/2018
/2012 9
8 L.Muthukrishn 24.11.2012 No.21390/K1 11.06.2010/12 No.18/K1/2018
an /2012 0
9 J.Aser Jenisor 24.11.2012 No.21390/K1 11.06.2010/12 No.18/K1/2018
/2012 1
10 ————-
————-
24 K.Baburangaraj (2012- No.21390/K1 27.11.2012/13 No.18/K1/2018
an 2013) /2012 6
24.11.2012
111
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Sl. Name of the Actual Proceedings Notional date Proc., No.in
No person year of No and seniority Impugned
promotion rank assigned Seniority List
with date 02.02.2018
25 A.Adaikalarani 24.11.2012 No.21390/K1 30.11.2012/13 No.18/K1/2018
/2012 7
26 C.Manoharan 24.11.2012 No.21390/K1 26.11.2012/13 No.18/K1/2018
/2012 8
27 V.Malliga 24.11.2012 No.21390/K1 28.11.2012/13 No.18/K1/2018
/2012 9
28 M.Santhi 24.11.2012 No.21390/K1 28.11.2012/14 No.18/K1/2018
/2012 0
29 B.Jeyanthi 24.11.2012 No.21390/K1 26.11.2012/14 No.18/K1/2018
/2012 1
30 M.Velammal 24.11.2012 No.21390/K1 27.11.2012/14 No.18/K1/2018
/2012 2
31 K.Shanmugasu 24.11.2012 No.21390/K1 27.11.2012/14 No.18/K1/2018
ndaram /2012 3
32 A.Joseph 24.11.2012 No.21390/K1 28.11.2012/14 No.18/K1/2018
Franches /2012 4
33 ------------
34 M.Sasikala (2012- No.21390/K1 01.12.2012/14 No.18/K1/2018
2013) /2012 6
24.11.2012
35 B.Karthikeyan 24.11.2012 No.21390/K1 27.11.2010/14 No.18/K1/2018
/2012 7
36 B.Vasanthi 24.11.2012 No.21390/K1 26.11.2012/14 No.18/K1/2018
/2012 8
37 M.Valinayagam 24.11.2012 No.21390/K1 28.11.2012/14 No.18/K1/2018
/2012 9
38 S.Devagi 24.11.2012 No.21390/K1 26.11.2012/15 No.18/K1/2018
/2012 0
39 M.Shek abdulla 24.11.2012 No.21390/K1 27.11.2012/15 No.18/K1/2018
112
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Sl. Name of the Actual Proceedings Notional date Proc., No.in
No person year of No and seniority Impugned
promotion rank assigned Seniority List
with date 02.02.2018
/2012 1
40 S.Saindhar 24.11.2012 No.21390/K1 27.11.2012/15 No.18/K1/2018
/2012 2
41 S.Jeyapriya 24.11.2012 No.21390/K1 01.12.2012/15 No.18/K1/2018
/2012 3
42 -----------
43 K.Sangetha (2012- No.21390/K1 27.11.2012/15 No.18/K1/2018
2013) /2012 5
24.11.2012
44 --------------
45 J.Rajasekar (2012- No.21390/K1 28.11.2012/15 No.18/K1/2018
2013) /2012 7
24.11.2012
46 D.S.Muralidhar 24.11.2012 No.21390/K1 27.11.2012/15 No.18/K1/2018
an /2012 8
47 S.Malligeshwar 24.11.2012 No.21390/K1 27.11.2012/15 No.18/K1/2018
an /2012 9
48 M.Pandian 24.11.2012 No.21390/K1 28.11.2012/16 No.18/K1/2018
/2012 0
49 M.Jagan 24.11.2012 No.21390/K1 28.11.2012/16 No.18/K1/2018
Karuppiah /2012 1
50 K.Jeyanthi 24.11.2012 No.21390/K1 27.11.2012/16 No.18/K1/2018
/2012 2
51 R.Vediyammal 24.11.2012 No.21390/K1 27.11.2012/16 No.18/K1/2018
/2012 3
52 E.Janani 24.11.2012 No.21390/K1 26.11.2012/16 No.18/K1/2018
/2012 4
53 S.Nirmala 24.11.2012 No.21390/K1 28.11.2012/16 No.18/K1/2018
/2012 5
113
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Sl. Name of the Actual Proceedings Notional date Proc., No.in
No person year of No and seniority Impugned
promotion rank assigned Seniority List
with date 02.02.2018
54 S.Logeswaran 24.11.2012 No.21390/K1 28.11.2012/16 No.18/K1/2018
/2012 6
55 J.Mooneer 24.11.2012 No.21390/K1 27.11.2012/16 No.18/K1/2018
/2012 7
56 T.Deivachigam 24.11.2012 No.21390/K1 26.11.2012/16 No.18/K1/2018
ani /2012 8
57 B.Nagajothi 24.11.2012 No.21390/K1 27.11.2012/16 No.18/K1/2018
/2012 9
58 R.Ramalakshmi 24.11.2012 No.21390/K1 26.11.2012/17 No.18/K1/2018
/2012 0
59 N.Kumaresan 24.11.2012 No.21390/K1 28.11.2010/17 No.18/K1/2018
/2012 1
60 T.Kavitha 24.11.2012 No.21390/K1 28.11.2012/17 No.18/K1/2018
/2012 2
61 D.Saravanan 24.11.2012 No.21390/K1 28.11.2012/17 No.18/K1/2018
/2012 3
62 R.Azhagumalai 24.11.2012 No.21390/K1 01.01.2013/17 No.18/K1/2018
/2012 4
63 J.Ashokkumar 24.11.2012 No.21390/K1 27.11.2012/17 No.18/K1/2018
/2012 5
64 M.Radhakrishn 24.11.2012 No.21390/K1 27.11.2012/17 No.18/K1/2018
an /2012 6
65 K.Kashdhuri 24.11.2012 No.21390/K1 26.11.2012/17 No.18/K1/2018
/2012 7
66 B.Sudha 24.11.2012 No.21390/K1 27.11.2012/17 No.18/K1/2018
/2012 8
67 K.Rajakumari 24.11.2012 No.21390/K1 28.12.2012/17 No.18/K1/2018
/2012 9
68 S.Nirmala 24.11.2012 No.21390/K1 27.11.2012/18 No.18/K1/2018
114
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Sl. Name of the Actual Proceedings Notional date Proc., No.in
No person year of No and seniority Impugned
promotion rank assigned Seniority List
with date 02.02.2018
/2012 0
69 -------------
--------------
81 M.Mahalakshm (2012- No.21390/K1 27.11.2012/19 No.18/K1/2018
i 2013) /2012 3
24.11.2012
82 -----------
83 C.Rajendran (2012- No.21390/K1 27.11.2012/19 No.18/K1/2018
2013) /2012 5
24.11.2012
84 E.Sathasivam 24.11.2012 No.21390/K1 27.11.2012/19 No.18/K1/2018
/2012 6
85 V.Anbazhagan 24.11.2012 No.21390/K1 27.11.2012/19 No.18/K1/2018
/2012 7
86 V.Shanmugasu 24.11.2012 No.21390/K1 28.11.2012/19 No.18/K1/2018
ndaram /2012 8
87 R.Kamaraj 24.11.2012 No.21390/K1 27.11.2012/19 No.18/K1/2018
/2012 9
88 R.Ramasamy 24.11.2012 No.21390/K1 28.11.2012/20 No.18/K1/2018
/2012 0
89 J.Mariyamma 24.11.2012 No.21390/K1 28.11.2012/20 No.18/K1/2018
R. Manohar /2012 1
90 R.Ramesh 24.11.2012 No.21390/K1 28.11.2012/20 No.18/K1/2018
/2012 2
91 K.Palanisamy 24.11.2012 No.21390/K1 26.11.2012/20 No.18/K1/2018
/2012 3
92 J.Rajalakshmi 24.11.2012 No.21390/K1 01.12.2012/20 No.18/K1/2018
/2012 4
115
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Sl. Name of the Actual Proceedings Notional date Proc., No.in
No person year of No and seniority Impugned
promotion rank assigned Seniority List
with date 02.02.2018
93 T.Sundaralinga 24.11.2012 No.21390/K1 26.11.2012/20 No.18/K1/2018
m /2012 5
94 R.Kupusamy 24.11.2012 No.21390/K1 28.11.2012/20 No.18/K1/2018
/2012 6
95 R.Tamilarasan 24.11.2012 No.21390/K1 01.12.2012/20 No.18/K1/2018
/2012 7
96 S.Selvarasu 24.11.2012 No.21390/K1 27.11.2012/20 No.18/K1/2018
/2012 8
97 T.Rajaraman 24.11.2012 No.21390/K1 27.11.2012/20 No.18/K1/2018
/2012 9
98 S.Gunasekaran 24.11.2012 No.21390/K1 28.11.2012/21 No.18/K1/2018
/2012 0
99 R.Perinbam 24.11.2012 No.21390/K1 29.11.2012/21 No.18/K1/2018
Sengather Selvi /2012 1
100 R.Selvi 24.11.2012 No.21390/K1 26.11.2012/21 No.18/K1/2018
/2012 2
101 N.Subramanian 24.11.2012 No.21390/K1 27.11.2012/21 No.18/K1/2018
/2012 3
102 K.Kumaran 24.11.2012 No.21390/K1 01.12.2012/21 No.18/K1/2018
/2012 4
103 R.Kalaamani 24.11.2012 No.21390/K1 27.11.2012/21 No.18/K1/2018
/2012 5
104 ————-
105 R.Kanagi (2012- No.21390/K1 28.11.2012/21 No.18/K1/2018
2013) /2012 7
24.11.2012
106 V.Kumar 24.11.2012 No.21390/K1 27.11.2012/21 No.18/K1/2018
/2012 8
107 ----------------
116
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WA.Nos.1027 & 2308/2022
Sl. Name of the Actual Proceedings Notional date Proc., No.in
No person year of No and seniority Impugned
promotion rank assigned Seniority List
with date 02.02.2018
108 N.S.Ravichandr (2012- No.21390/K1 27.11.2012/22 No.18/K1/2018
an 2013) /2012 0
24.11.2012
109 Mabal Dhaya 24.11.2012 No.21390/K1 28.11.2012/22 No.18/K1/2018
Nalakkumamri /2012 1
110 M.T.Prakash 24.11.2012 No.21390/K1 26.11.2012/22 No.18/K1/2018
/2012 2
111 R.Kanniah 24.11.2012 No.21390/K1 28.11.2012/22 No.18/K1/2018
/2012 3
112 R.Chandrasekar 24.11.2012 No.21390/K1 27.11.2012/22 No.18/K1/2018
an /2012 4
113 L.Broadwin 24.11.2012 No.21390/K1 01.12.2012/22 No.18/K1/2018
/2012 5
114 S.Shanmugam 24.11.2012 No.21390/K1 27.11.2012/22 No.18/K1/2018
/2012 6
115 B.Mani 24.11.2012 No.21390/K1 28.11.2012/22 No.18/K1/2018
/2012 7
116 R.Senivasan 24.11.2012 No.21390/K1 30.11.2012/22 No.18/K1/2018
/2012 8
117 K.Shanmugam 24.11.2012 No.21390/K1 26.11.2012/22 No.18/K1/2018
/2012 9
118 C.Vengatachala 24.11.2012 No.21390/K1 28.11.2012/23 No.18/K1/2018
m /2012 0
119 T.Shanmugasun 24.11.2012 No.21390/K1 27.11.2012/23 No.18/K1/2018
daram /2012 1
120 B.Balasaravana 24.11.2012 No.21390/K1 26.11.2012/23 No.18/K1/2018
n /2012 2
121 ————
122 R.Chandravadi (2012- No.21390/K1 26.11.2012/23 No.18/K1/2018
117
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Sl. Name of the Actual Proceedings Notional date Proc., No.in
No person year of No and seniority Impugned
promotion rank assigned Seniority List
with date 02.02.2018
vu 2013) /2012 4
24.11.2012
123 R.Sankar 24.11.2012 No.21390/K1 01.12.2012/23 No.18/K1/2018
/2012 5
124 M.Senthilkuma 24.11.2012 No.21390/K1 26.11.2012/23 No.18/K1/2018
r /2012 6
125 ————-
126 A.Venkatesan (2012- No.21390/K1 27.11.2012/23 No.18/K1/2018
2013) /2012 8
24.11.2012
127 S.Subramanian 24.11.2012 No.21390/K1 03.12.2012/23 No.18/K1/2018
/2012 9
99. The details of the actual year of promotion of the ‘Promotees’ to
the post of ‘Assistant’ and their seniority captured in Paragraph No. 5 of the
Affidavit filed in support of the Writ Petition, are summarized below:-
Table No:-3
Actual Actual date S.No in the Total No.of Remark of this
Year of of promotion Table given in persons Court
promotion the Affidavit promoted in
the
respective
year
2012-2013 24.11.2012 1 to 9; 24 to 32; 96 Must be118
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WA.Nos.1027 & 2308/2022Actual Actual date S.No in the Total No.of Remark of this
Year of of promotion Table given in persons Court
promotion the Affidavit promoted in
the
respective
year
34 to 41; 43; 45 allowed both
to 68; 81; 83 to on facts and
103; 105 to 106; law
108 to 120; 122
to 124 and 126
to 127
2013-2014 19.11.2013 11 to 23; 104; 16
107; 121; and
125 Must be
allowed based
2015-2016 07.06.2016 33; 42; 44; 69 – 15 on law laid
80; and 82 down in
Singla Case
and in view
of the Rule
position.
100. The above Table is a summary of the Table in Paragraph No. 5
of the Affidavit filed in support of the above Writ Petitioner reveals that
96 of 127 Promotees had already been promoted as ‘Assistants’ on
24.11.2012 i.e. before the date on which the Direct Recruitees were
119
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WA.Nos.1027 & 2308/2022
appointed on 18.12.2012/23.12.2012. Therefore, there was no scope for
altering or tampering with the seniority conferred on these 96 Promotees.
101. Though this is the admitted position in Paragraph No. 5 of the
Affidavit filed in support of Writ Petition by Direct Recruitees (Private
Respondents 1 to 10), yet, the Writ Court has treated even those 96 of 127
Promotees who were promoted before appointment of the Direct Recruitees
on 18.12.2012/23.12.2012, as juniors to them by holding that they were
promoted later.
102. In my view, the seniority of the rest of the 31 of 127 Promotees
also ought not to have been tampered with in the light of the Rules which
interface with each other in the matter of preparation of the Seniority List.
103. The Writ Court while passing the Impugned has not taken note
of all the provisions of the Tamil Nadu Ministerial Service Rules and the
Tamil Nadu Registration Subordinate Service Rules which interface
120
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WA.Nos.1027 & 2308/2022
with Tamil Nadu State and Subordinate Service Rules. Instead, the Writ
Court has arrived at its conclusion based on Tamil Nadu State and
Subordinate Service Rules.
104. The Writ Court has only considered Rules 35(aa) of the Tamil
Nadu State and Subordinate Service Rules. These two Rules also ought
to have been considered by the Writ Court while passing the impugned
Order.
105. When the impugned proceedings dated 07.06.2016 was issued, the
Tamil Nadu State and Subordinate Service Rules was in force. When the
impugned proceedings dated 02.02.2018 was issued, the Tamil Nadu
Government Servants (Conditions of Service) Act, 2016 came into force
with effect from 14.09.2016.
106. Both the proceedings were issued for fixing the inter-se seniority
of Assistants for the purpose of their promotion to the post of ‘Sub-
121
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WA.Nos.1027 & 2308/2022
Registrar, II Grade’ under the Tamil Nadu State Registration Service
Rules.
107. Rule 35(a) and Rule 35(aa) of Tamil Nadu State Subordinate
Service Rules, [presently, Section 40(1) and Section 40(2) of the Tamil
Nadu Government Servants (Conditions of Service) Act, 2016] deals
with the inter-se seniority between the Promotees and Direct Recruitees,
which is extracted below:-
Table:4
Rule 35 (a) and (aa) of the Section 40 (1) and (2) of
Tamil Nadu Subordinate State Tamil Nadu Government
Service Rules Servants (Conditions of
Service) Act, 2016
(a) The seniority of a person in a (1) The seniority of a person in a
service, class or category or grade service, class, category or grade
shall unless he has been reduced shall, unless he has been reduced
to a lower rank as a punishment to a lower rank as a punishment,
be determined by the rank be determined in the order of his
obtained by him in the list of placement in the list prepared by
approved candidates drawn up by the recruitment agency or
the Tamil Nadu Public Service appointing authority, as the case
Commission or other Appointing may be, in accordance with the122
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WA.Nos.1027 & 2308/2022Rule 35 (a) and (aa) of the Section 40 (1) and (2) of
Tamil Nadu Subordinate State Tamil Nadu Government
Service Rules Servants (Conditions of
Service) Act, 2016
Authority, as the case may be, rule of reservation and the order
subject to the rule of reservation of rotation specified in Schedule-
where it applies. The date of V, where it applies. The date of
commencement of his probation commencement of his probation
shall be the date on which he joins shall be the date on which he
duty irrespective of his seniority. joins duty irrespective of his
seniority.
(aa) The seniority of a person in a
service, class, category or grade (2) The seniority of a person in a
shall, where the normal method of service, class, category or grade
recruitment to that service, class, shall, where the normal method
category or grade is by more than of recruitment to that service,
one method of recruitment, unless class, category or grade is by
the individual has been reduced to more than one method of
a lower rank as a punishment, be recruitment, unless the individual
determined with reference to the has been reduced to a lower rank
date on which he is appointed to as a punishment, be determined
the services, class, category or with reference to the date on
grade; which he is appointed to the
services, class, category or
grade:
Provided that where the junior
appointed by a particular method Provided that where the junior
or recruitment happens to be appointed by a particular method
appointed to a service, class, of recruitment happens to be
category or grade, earlier than the appointed to a service, class,
senior appointed by the same category or grade, earlier than
method of recruitment, the senior the senior appointed by the same
shall be deemed to have been method of recruitment, the senior
appointed to the service, class, shall be deemed to have been123
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WA.Nos.1027 & 2308/2022Rule 35 (a) and (aa) of the Section 40 (1) and (2) of
Tamil Nadu Subordinate State Tamil Nadu Government
Service Rules Servants (Conditions of
Service) Act, 2016
category or grade on the same day appointed to the service, class,
on which the junior was so category or grade on the same
appointed: day on which the junior was so
appointed:
Provided further that the benefit of
the above proviso shall be Provided further that the benefit
available to the senior only for the of the above proviso shall be
purpose of fixing inter-se- available to the senior only for
seniority: the purpose of fixing inter-se-
seniority:
Provided also that where persons
appointed by more than one Provided also that where persons
method of recruitment are appointed by more than one
appointed or deemed to have been method of recruitment are
appointed to the service, class, appointed or deemed to have
category or grade on the same been appointed to the service,
day, their inter-se-seniority shall class, category or grade on the
be decided with reference to their same day, their inter-se-seniority
age shall be decided with reference to
their age.
108. A superficial reading of Rule 35(aa) of Tamil Nadu State
Subordinate Service Rules, [presently, Section 40(2) of the Tamil Nadu
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Government Servants (Conditions of Service) Act, 2016] may give an
impression that the inter-se seniority between the Direct Recruitees and the
Promotees has to be with reference to the date on which they were
appointed to the service as Assistant.
109. However, it has to be emphasised that Rule 35(aa) of the
Tamil Nadu State Subordinate Service Rules, [presently, Section 40(2) of
the Tamil Nadu Government Servants (Conditions of Service) Act, 2016]
are applicable only for reconciling the inter-se seniority between the two
categories of employees whose appointments were by the normal method of
recruitment.
110. Neither the appointment of Direct Recruitees nor the
appointment of the promotes on compassionate ground were by the normal
method of recruitment as was/is contemplated under Rule 35(aa) of the
Tamil Nadu State Subordinate Service Rules, [presently, Section 40(2) of
the Tamil Nadu Government Servants (Conditions of Service) Act,
125
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WA.Nos.1027 & 2308/2022
2016].
111. Under Rule 35(a) of the Tamil Nadu State Subordinate
Service Rules, which is similar to sub clause (1) of Section 40 the Tamil
Nadu Government Servants (Conditions of Service) Act, 2016, the inter-
se seniority has to be in accordance with reference to the placement of
candidates in the Seniority List prepared by the Recruitment Agency or the
Appointing Authority subject to the rules of reservation and subject to the
fact that such a person is not reduced to a lower rank due to any punishment.
112. We are not concerned with situation contemplated in Rule 35(a)
of the Tamil Nadu State Subordinate Service Rules, which is similar to
sub clause (1) of Section 40 the Tamil Nadu Government Servants
(Conditions of Service) Act, 2016. It applies to the inter-se seniority
between the persons, who were appointed by direct recruitment by TNPSC.
113. Till the issuance of G.O.(Ms).No.56, Commercial Taxes and
126
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Registration Department dated 17.04.2012, the only method of
recruitment of ‘Assistants’ was by way of promotion under the Rules. The
appointment could have been made only on temporary basis under Rule
10(a)(i)(1) in Part II of the Tamil Nadu State Subordinate Service Rules.
114. Neither the provisions of the Tamil Nadu State and
Subordinate Services Rules nor the provision of the Tamil Nadu
Ministerial Service Rules provide for relaxation for the method of
recruitment to the post of ‘Assistants’.
115. There were no rules under the provisions of the Tamil Nadu
State Subordinate Service Rules which empowered the Government to
issue G.O.(D).No. 183, Commercial Taxes and Registration Department
dated 31.05.2010 for making Direct Recruitment on a permanent basis. Only
method prescribed for relaxation was under Rule 48 of the Tamil Nadu
State Subordinate Service Rules.
127
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116. Only by virtue of amendment to Category 12 in Rule 2 in
Section 22 – Vol.III of Tamil Nadu Service Manual viz., The Tamil Nadu
Ministerial Service Rules vide G.O. Ms. No. 56, P & A Reforms (B
Department) dated 17.04.2012, post of the ‘Assistant’ was also allowed to
be made by way of ‘Direct Recruitment’. I shall refer to the same in due
course of this disposition.
117. There is also no indication that the above Recruitment
Notification No. 258 dated 30.12.2010 was issued in consonance with the
mandatory requirements of Rule 10(a)(i)(1) in Part II of the Tamil Nadu
State Subordinate Service Rules.
118. Thus, it is clear that the appointment that was proposed to be
made in Recruitment Notification No. 258 dated 30.12.2010 issued
pursuant to G.O.(D).No. 183, Commercial Taxes and Registration
Department dated 31.05.2010 was itself contrary to the express provisions
Rule 10 (a)(i)(1)and Rule 48 of the Tamil Nadu State Subordinate
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Service Rules as it stood then and the provision of the Tamil Nadu
Ministerial Service Rules.
119. When G.O.Ms.No. 47, Commercial Taxes and Registration
Department dated 09.04.2010, G.O.(D).No. 183, Commercial Taxes and
Registration Department dated 31.05.2010 and Recruitment Notification
No. 258 dated 30.10.2010 were issued, there was no scope for appointment
of an ‘Assistant’ by way of direct recruitment in Category 12 in Rule 2 in
Section 22 – Vol.III of Tamil Nadu Service Manual viz., under The Tamil
Nadu Ministerial Service Rules.
120. G.O.Ms.No. 47, Commercial Taxes and Registration
Department dated 09.04.2010 expressly recognised there was no provision
for direct recruitment to the post of ‘Assistants’ in the Registration
Department in the Tamil Nadu Ministerial Service Rules.
121. G.O.Ms.No. 47, Commercial Taxes and Registration
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Department dated 09.04.2010 also underscored the legal position under the
aforesaid Rules, that the post of the ‘Assistants’ was the only feeder
category for further promotion to the 385 sanctioned posts of ‘Sub
Registrar, II Grade’ in the Registration Department.
122. The provisions of the Tamil Nadu Ministerial Service Rules
were also not amended in line with the recommendation of the Tamil Nadu
Public Service Commission as was stated in G.O.Ms.No. 47, Commercial
Taxes and Registration Department dated 09.04.2010.
123. As mentioned in the beginning of the Order, G.O.(D).No. 183,
Commercial Taxes and Registration Department dated 31.05.2010 also
did not amend the ‘Special Rules’ in Category 12 in Rule 2 in Section 22 –
Vol.III of Tamil Nadu Service Manual i.e., TheTamil Nadu Ministerial
Service Rules as was required and recommended by the Tamil Nadu Public
Service Commission.
130
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124. G.O.(Ms).No.123 P & AR Department dated 10.09.2009 based
on which G.O.(D). No. 183, Commercial Taxes and Registration
Department dated 31.05.2010 was issued had also not authorised the
Government or its Department to fill up the sanctioned vacancy of Assistant
contrary to the service rules, in this case the Tamil Nadu Ministerial
Service Rules in Vol III of the Tamil Nadu Service Manual or contrary to
Rule 10(a)(i)(1) in Part II of the Tamil Nadu Subordinate Service Rules.
125. For the sake of clarity, Rule 10(a)(i)(1) to Part II of the Tamil
Nadu State Subordinate Service Rules is extracted hereunder:-
“10.Temporary appointments:—
a(i) (1) where it is necessary in the public interest owing
to an emergency which has arisen to fill immediately a
vacancy in a post borne on the cadre of a service, class
or category and there would be undue delay in making
such appointment in accordance with these rules and
the Special Rules, the appointing authority may
temporarily appoint a person, who possesses the
qualifications prescribed for the post otherwise than in
accordance with the said rules.
Provided that no appointment by direct recruitment
under this clause shall be made of any person other131
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Service Commission from its regular or reserve list of
successful candidates to any of the posts within the
purview of the Tamil Nadu Public Service Commission.
Provided further that appointment by direct recruitment
under this clause (1) in respect of posts within the
purview of Tamil Nadu Public Service Commission shall
be made, only where new posts with new qualifications
are created temporarily and where the Tamil Nadu
Public Service Commission does not have a regular or
reserve list of successful candidates for sponsoring.”
126. As per the aforesaid Rule, appointments could be made only on
temporary basis where it is necessary in the public interest owing to an
emergency which had arisen to fill immediately a vacancy in a post borne on
the cadre of a service, class or category and there would be undue delay in
making such appointment in accordance with the Rules and the Special
Rules. The appointing authority thus could temporarily appoint a person
holding requisite qualification for the post.
127. As per the first proviso to sub-rule (a)(i)(1) to Rule 10 of the
Tamil Nadu State Subordinate Service Rules, even those appointments
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could be made by direct recruitment of any person other than the one
sponsored by the Tamil Nadu Public Service Commission from its regular or
reserve list of successful candidates. This was the sine qua non under the
first proviso to Sub-rule (a)(i)(1) to Rule 10 of the Tamil Nadu State
Subordinate Service Rules.
128. In deviation from the scheme under the Tamil Nadu State
Subordinate Service Rules and Section 22 of the Tamil Nadu Service
Manual – Volume III viz., Tamil Nadu Ministerial Service Rules,
appointments were made to the post of ‘Assistants’ directly based on the
above mentioned notification.
129. Only after G.O.(Ms).No.56, Commercial Taxes and
Registration Department dated 17.04.2012 was issued, the provisions of
Tamil Nadu Ministerial Service Rules were amended retrospectively with
effect from 09.04.2010 and thereafter,recruitment was made on
18.12.2012/23.12.2012.
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130. Therefore, in that sense, G.O.(D).No. 183, Commercial Taxes
and Registration Department dated 31.05.2010 granting one time
exemption for making appointment to the post of ‘Assistants’ directly in
itself was irregular and contrary to the provisions of the Tamil Nadu State
and Subordinate Services Rules and the provision of the Tamil Nadu
Ministerial Service Rules. In any event, it cannot be construed to be the
‘normal method’ of appointment for the purpose of Rule 35(aa) in 2012.
131. The recruitment procedure adopted for recruitment for Direct
Recruitees itself was irregular and was regularised only retrospectively vide
G.O.(Ms).No.56, Commercial Taxes and Registration Department dated
17.04.2012.
132. These appointments cannot be treated, as irregular, as on the date
of their recruitment on 18.12.2012/23.12.2012, defect , if any, in the method
proposed G.O.(D).No. 183, Commercial Taxes and Registration
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Department dated 31.05.2010 acted upon by virtue of Recruitment
Notification No. 258 dated 30.12.2010 stood fully cured by the above
amendments to the Rules vide G.O.(Ms).No.56, Commercial Taxes and
Registration Department dated 17.04.2012.
133. I am therefore also inclined to hold that the appointments of the
Private Respondents herein were regular as they had the requisite
qualifications as per Recruitment Notification No. 258 dated 30.12.2010.
134. I shall now explain the position in the ensuing paragraphs in the
light of the other Rules as in force during the period in dispute which
ought to have been discussed by the Writ Court.
135. The Tamil Nadu State and Subordinate Service Rules has
three parts. Part I deals with preliminary provisions, Part II deals with
General Rules and Part III deals with classification of various services
under the Tamil Nadu State and Subordinate Service Rules. Part III is
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in Volume III of the Tamil Nadu Service Manual. Part III has about
sixty different services.
136. Both the Tamil Nadu Registration Subordinate Service Rules
and the Tamil Nadu Ministerial Service Rules are the ‘Special Rules’
within the meaning of Rule 2(19) of Part I of the Tamil Nadu State and
Subordinate Service Rules in Part III of Volume III of the Tamil Nadu
Service Manual.
137. The provisions of the Tamil Nadu Ministerial Service Rules
and Tamil Nadu Registration Subordinate Service Rules have to be read
in conjunction with the provisions of the Tamil Nadu State and
Subordinate Service Rules.
138. These Rules have been now subsumed into Tamil Nadu
Government Servants (Conditions of Service) Act, 2016 (for the sake of
136
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brevity, 2016 Act).
139. The post of ‘Junior Assistant’ and ‘Assistant’ are traceable to
the Tamil Nadu Ministerial Service Rules in Section 22 of the Tamil
Nadu Service Manual – Volume III (i.e., Part III) at Page No.656.
140. The post of a ‘Junior Assistant’ also includes the post of
Inspectors in the Revenue Settlement Parties and Special Revenue
Inspectors in the Office of the Director Harijan Welfare and Comptists
in the Treasury and Accounts Department.
141. The Post of an “Assistant’ is Category 1 service in Section 22
of the Tamil Nadu Service Manual – Volume III (i.e., Part III) at Page
No.656
142. The dispute in the present case relates to inclusion of the names
of the Promotees Assistants above the names of the Direct Recruitees
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Assistant in the Seniority List for promotion to the post of Sub-Registrar,
II Grade under the Tamil Nadu Registration Subordinate Service Rules.
143. As mentioned above, post of an ‘Assistant’ was a promotional
post. There was no scope for direct recruitment of an Assistant in the
Registration Department until issuance of Notification in G.O.Ms.No. 47,
Commercial Taxes and Registration Department dated 09.04.2010.
144. As per Rule 2(d) of the Tamil Nadu Registration Subordinate
Service Rules,the Inspector General of Registration has to prepare and
publish in the Tamil Nadu Government Gazette and the Registration Gazette
every year in June, a list of candidates approved for appointment by
“Recruitment by Transfer” as Sub-Registrar- II Grade.
145. As per first proviso to the Rule 4 of Part II of the Tamil Nadu
State and Subordinate Service Rules, List of “approved candidates” for
appointment by promotion and by recruitment by transfer to all the
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categories of posts in the Tamil Nadu State and Subordinate Services
shall be prepared annually against the estimated number of vacancies
expected to arise during the course of a year.
146. Rule 4 of Part II of the Tamil Nadu State and Subordinate
Service Rules reads as under:
4. Approved candidates–
(a) All first appointments to a service or class of
category or grade thereof State or Subordinate, whether
by direct recruitment or by recruitment by transfer or by
promotion, shall be made by the appointing authority
from a list of approved candidates. Such list shall be
prepared in the prescribed manner by the appointing
authority or any other authority empowered in the
Special rules in that behalf and shall be displayed in the
Notice Board in the Office of the appointing authority.
The list shall also be communicated to all persons
concerned by Registered post whose names are found in
the list as well as to persons senior to the Junior most
person included in the list whose names have not been
included in the list. Where the candidates in such list are
arranged in their order of preference appointments to the
service shall be made in such order:
Provided that the list of approved candidates for
appointment by promotion and by recruitment by transfer
to all the categories of posts in the Tamil Nadu State and139
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WA.Nos.1027 & 2308/2022Subordinate Services shall be prepared annually against
the estimated number of vacancies expected to arise
during the course of a year. The estimate of vacancies
shall be prepared taking into account the total number of
permanent post in a category, the number of temporary
posts in existence, the anticipated sanction of new posts
in the next year; the recruitment post of leave reserves,
the anticipated vacancies due to retirement and
promotion, etc., in the course of the year and the number
of candidates already in position in that category. The list
of approved candidates, so prepared, shall be in force for
a period of one year only and shall lapse at the end of the
year. The candidates whose names were included in the
previous list, but were not appointed, shall be considered,
if eligible for inclusion in the list of next year along with
their seniors if any whose names were not included in the
previous list either because they were found not suitable
or because they were not technically qualified when the
previous list was drawn up.
Provided further that for preparing such lists to fill up
vacancies, the names of the qualified candidates in the
seniority list in a class, category or service shall be
considered in the following proportions (rounding off
fractions to the next whole number):-
Number of Vacancies Number of qualified candidates
to be considered
1-20 200% of the actual number of
estimated vacancies
21-80 175% of the actual number of
estimated vacancies subject to a
minimum of 40
81 and above 150% of the actual number of140
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to be considered
estimated vacancies, subject to a
minimum of 140.
Provided also that if the qualified candidates, after
consideration of their claims, are found not suitable for
the post, the names of the next qualified candidates, to
the extent necessary, shall be considered:
Provided also that in respect of each reserved vacancy to
be filled up by the candidate belonging to the Backward
class, Backward Class Muslims or the Most Backward
Class and Denotified Community or the Scheduled caste
or the Scheduled Tribe, the names of the first two
qualified candidates belonging to the backward Classes,
Backward Class Muslims or most Backward Classes and
Denotified Communities or the Scheduled Caste and
Scheduled Tribes, as the case may be shall be considered,
subject to their availability and if the first two qualified
candidates belonging to the backward classes, Backward
Class Muslims or Most Backward Classes and Denotified
Communities or the Scheduled Caste and Scheduled
Tribes, as the case may be are found not suitable for the
post, the claims of the next two qualified candidates
belonging to that reserved Category shall be considered.
No reserved vacancy shall be left unfilled, except when
no qualified candidates in the seniority list in a Class,
Category or Service belonging to that reserved category
are available for consideration. In respect of a vacancy to
be filled up by General Turn, the names of the qualified
candidates including these belonging to the Backward
Classes, Backward Class Muslims, the Most Backward
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WA.Nos.1027 & 2308/2022castes and the Scheduled Tribes in the seniority in a
class, Category or Service shall also be considered:
Provided also that in respect of filling up vacancies in the
post of Head of Department, the number of names of
qualified candidates to be considered shall be fixed as
twice the number of vacancies plus three in the seniority
list in a Class, Category or Service.
Explanation I – The period of one year validity for the
list of approved candidates shall be reckoned from the
date of approval of the panel by the competent authority.
Explanation II- In respect of appointment to the posts,
which are under the purview of the Tamil Nadu Public
Service Commission, temporary list may be drawn and
published as aforesaid with reference to the qualification
on the date fixed for the regular lists to meet out the
exigencies of service and to avoid administrative delay.
Once a qualified candidate is included in the temporary
list with reference to the qualification on the crucial date
fixed for regular list his rights for temporary appointment
should be protected and he should not be overlooked in
preference to a person, who was not included in the
temporary list as he was not qualified on the crucial date
but subsequently qualified. The temporary list shall be
adopted for giving temporary appointments till the
regular list is approved and regular appointments are
made with reference to the regular list.
Explanation III – No temporary list shall be prepared in
respect of the posts for which the consultation of the
Tamil Nadu Public Service Commission is not required
and the list of names prepared, if any, shall be a regular
one.
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WA.Nos.1027 & 2308/2022Provided further that a list of approved candidates
(including a ‘Nil’ list) prepared even prior to the coming
into effect of the preceeding proviso shall not be invalid
for the reason that it was prepared with reference to the
estimated number of vacancies expected to arise during
the course of the year:
Provided further that wherever, advancement to Higher
temporary posts, under the scheme of “Flexible
Complementing” has been provided a panel of persons
who will be completing ten years of satisfactory service
during the period from first June of a year to 31st May of
the next year and are suitable for advancement to the
next higher post, shall be kept ready every year so that
the advancement may be sanctioned on completion of ten
years of satisfactory service. Leave other than
extraordinary leave without allowances should be taken
into account while computing the ten years period. The
period of ten years in the lower post will be reckoned
from the date of regular appointment to that post, but will
exclude the periods of reversion. The panel so prepared
shall be utilised for promotion to higher posts in the
regular line, except in respect of posts, for which
consultation with the Commission is necessary for
preparing the panel for appointment to higher posts in
the regular line.
Explanation- The scheme of “Flexible complementing
“provides for advancement to the next higher posts, on
completion of ten years of satisfactory service in the
lower post.
(b) where a candidate‘s name has been included in the
list of approved candidates for more than one service, the
appointment authority who proposes to appoint such a143
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WA.Nos.1027 & 2308/2022candidate first shall require him to elect the service to
which he wishes to be appointed. On such election, the
candidate’s name shall be removed from the list or lists of
approved candidates for the service or services to which
he does not wish to be appointed.
(c) An approved candidate for any service or for any
class or category thereof who joins the Armed Forces in
connection with the National Emergency before he is
appointed to the service, class or category for which he
has been selected or a person who while on such military
duty is selected for a Civil post and included in the list of
approved candidates for appointment to a service or
class or category thereof shall be appointed to such
service, class or category on his due turn with effect from
the date on which he would have been so appointed, but
for his absence on military duty. With effect from the date
on which he is so appointed, he shall be entitled to count
the period of his military duty towards probation on his
civil post. He shall be deemed to have entered the time
scale applicable to the civil post with effect from the same
date. The military duty shall count for increments to
which he shall be eligible in the time scale in the same
manner in which they would have been admissible, if he
had not taken up the military duty. On discharge from
military duty, he shall, within a period of six months from
the date of such discharge, take up his civil post and
thereafter undergo such portion of the period of
probation as remains after counting the period of military
duty under this sub-rule. He shall also undergo such
training and pass such tests as may have been prescribed
in the Special Rules for the said post, within a period
equal to the prescribed period of probation or such other
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discharge from military duty:
Provided that the time limit of six months referred in this
sub-rule shall not apply to a person who is wounded
while on military duty or as a result of such duty is
otherwise rendered unfit to take up his civil post within
that time. He may take up his civil post after he is
declared on medical examination to be fit for duty, within
a period of two years or such further period as may be,
granted by the appointing authority from the date of his
discharge from military duty.
(d)The inclusion of a candidate’s name in any list of
approved candidates for any service (State or
Subordinate) or any class or category in a service shall
not confer on him any claim to appointment to the
service, class or category.
(e) If an approved candidate selected by the Tamil Nadu
Public Service Commission for appointment by direct
recruitment fails to join duty ordinarily within three
months from the date of receipt of the orders directing
him to join duty or with in an earlier date, if so specified
by the appointing authority in special circumstances, he
shall forfeit his right for appointment to the post and his
name shall be removed from the approved list; Provided
that in special circumstances the appointing authority
may extend the time limit referred to in this sub-rule up to
six months for valid reasons.
Provided further that in very special circumstances and
in relaxation of the above proviso, if any candidate is
allowed to join duty beyond the time limit of six months,
his seniority in that post shall be fixed below the junior
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most candidate appointed to that post in that service on
the date of joining duty of the former.
147. Under Rule 13A of the Tamil Nadu Ministerial Service Rules,
the Inspector General of Registration has to prepare an “Annual
List”of the ‘Approved Candidate’ by the 15th of March of every year.
The list should contain the names of only those candidates who are
eligible for promotion and who possess requisite qualification.
148. As per Rule 2(d) of the Tamil Nadu Registration Subordinate
Service Rules, the Inspector General of Registration shall prepare a list of
candidates approved for appointment to the post of ‘Sub-Registrar, II
Grade’ by way of recruitment by transfer. This list has to be prepared
and published in the Tamil Nadu Government Gazette and the Registration
Gazette in June of every year.
149. The expression “Approved Candidate”is defined inRule
2(2) of Part I of the Tamil Nadu State and Subordinate Service Rules.
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150. This Annual List is used for preparing the Seniority List under
the provisions of the Tamil Nadu State Registration Subordinate Service
for promotion of an Assistant in the Registration Department to the post
of Sub-Registrar, II Grade in the same Department. While preparing the
Seniority List only names of those candidates who are fully qualified can be
included in the list.
151. Rule 13A of Tamil Nadu Ministerial Service Rules and Rule
2(d) of the Tamil Nadu Registration Subordinate Service Rules
reproduced below:-
Table:5
Rule 2(2) of Part I Rule 13A of Tamil Rule 2(d) of Tamil Nadu
of the Tamil Nadu Nadu Ministerial Registration
State and Service Rules Subordinate Service
Subordinate Service Rules
Rules
(2)Approved 13A.Preparation of (d)Appointment –
candidate- annual list of
approved
candidates-
Approved candidate The crucial date on The Inspector General of
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WA.Nos.1027 & 2308/2022Rule 2(2) of Part I Rule 13A of Tamil Rule 2(d) of Tamil Nadu
of the Tamil Nadu Nadu Ministerial Registration
State and Service Rules Subordinate Service
Subordinate Service Rules
Rules
means a candidate which the candidates Registration shall prepare
whose name appears should possess the and publish in the Tamil
in an authoritative prescribed Nadu Government
list of candidates qualifications for Gazette and the
approved for purposes of Registration Gazette
appointment to any inclusion in the every year in June, a list
service, class or annual list of of candidates approved
category. approved candidates for appointment by
for appointment to recruitment by
the posts by recruitment by transfer as
promotion and Sub-Registrar, II Grade.
recruitment by
transfer shall be the
15th March of every
year.
152. The term ‘Authoritative List’ referred to in Rule 2(2) of Part I
of the Tamil Nadu State and Subordinate Service Rules in the definition
of ‘Approved Candidates’ has to be interpreted to mean that the only the
‘Approved Candidates’ who are fit for appointment to a post. The annual
list consists of the names of only those persons who are the ‘approved
candidates’ who possess the above qualification for Promotees.
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153. On the crucial date the direct recruitees as also the promotees
should have possessed requisite qualification for the post of Sub-Registrar,
II Grade under the provision of the Tamil Nadu Registration Subordinate
Service Rules.
154. An Assistant who is serving in the Registration Department
under the Tamil Nadu Ministerial Service Rules who clamours for next
higher post of Sub-Registrar,II Grade in the Registration Department
must therefore possess requisite qualifications prescribed in Rule 4(b) of
Tamil Nadu Registration Subordinate Service Rules.
155. The Annual List of the ‘Approved Candidate’ can consists of
the names of only those persons who possess the qualification for the
next higher post.
156. Requisite qualifications has been prescribed in Rule 4(b) of
Tamil Nadu Registration Subordinate Service Rules for appointment by
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recruitment by transfer to the post of Sub-Registrar, II Grade. Rule 4(b)
of Tamil Nadu Registration Subordinate Service Rules reads as under:-
(b)Other Qualification –
No person shall be eligible for appointment to the
post specified in column (1) of the table below by the
method of recruitment specified in the corresponding entries
in column(2) thereof, unless he possesses the qualifications
specified in the corresponding entries in column(3) thereof
:-
Post Method of Qualification
(1) Recruitment (3)
(2)
Sub- Recruitment (i) Must have served as Assistant
Registrars, by transfer in the Registration
II Grade
Department, including the
Office of the Registrar
General of Births and Deaths
and Marriages, the Registrars
of Chits and the Registrars of
Firms for a period not less
than two years on duty;
(ii) Must have passed the
following Tests -
a) Registration Test;
b) Tamil Nadu Government
Office Manual Test;
c) Account test for
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Post Method of Qualification
(1) Recruitment (3)
(2)
Subordinate Officers,
Part I;
(iii)Must possess the minimum
general educational
qualification prescribed in
Schedule I to the General
Rules for the Tamil Nadu State
and Subordinate Services:
Provided that a person who was serving in connection with
the affairs of the former State of Travancore – Cochin and
allotted to the State of Tamil Nadu under Section 116 of the
State Re-organization Act, 1956 (Central Act 37 of 1956)
shall, if he possesses the minimum general educational
qualification prescribed by the former Travancore – Cochin
State, be deemed to possess the minimum general
educational qualification for purposes of recruitment by
transfer as Sub-Registrar, II Grade.
Post Method of Qualification
(1) Recruitmen (3)
t
(2)
Sub- Direct Must possess a Bachelor's Degree:
Registrars, Recruitment Provided that, others things being equal,
II Grade preference shall be given to persons who,
in addition to the qualifications specified
above, possess a B.L.Degree.
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157. The qualification that was prescribed for Direct Recruitment of
‘Assistant’ under the Tamil Nadu Ministerial Service amended by
G.O.Ms.No. 56 Personnel and Administrative Reforms (B) Department
dated 17.04.2012 includes those qualifications which the Promotees would
have been possessed while serving as a ‘Junior Assistants’ under the Tamil
Nadu Ministerial Service Rules.
158. Names of the ‘Approved Candidate’ in the ‘Authoritative List’
each contain only the names of those candidates who had requisite
qualification. While preparing a list of ‘Approved Candidates’ for
appointment by recruitment by Transfer as such Registrar II Grade, the
Inspector General of Registration has to ensure that both the streams of
‘Assistants’ viz., Promotees/Appellants and the Direct Recruitees/Private
Respondents should possess requisite qualification as is contemplated in
Rule 4(a) of the Tamil Nadu State Subordinate Service Rules, which is
similar to Section 7 of the 2016 Act. Thus, for each year such a list has to be
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prepared. If names of persons were left out, their names have to be included.
159. The Inspector General of Registration has to thus prepare and
publish the annual list of ‘approved candidates’ for preparing the
Seniority List for appointment of Approved Assistants to the post of ‘Sub-
Registrar, II Grade’ by way of Recruitment by Transfer in the Official
Gazette and in the Registration Gazette every year in the month of June in
terms. This is evident from reading Rule 2(d) of the Tamil Nadu
Registration Subordinate Service Rules.
160. G.O.(Ms) No.123, P & AR Department, dated 10.09.2009, was
issued only meeting out appointments that are made on a “contingent basis”
i.e., on temporary basis under Rule 10(a)(i)(1) of Tamil Nadu State
Subordinate Service Rules.
161. G.O.(Ms) No.123, P & AR Department, dated 10.09.2009
merely stated that prior approval of the concerned Department will have to
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be obtained to making such an appointment as it will have revenue
implications on the State exchequer by way of disbursal of salary and other
service benefits to the persons who are recruited against substantive
vacancies. Thus, appointment of the direct recruitees could have been
made only against existing vacancies on a contingent basis or on temporary
basis and not on permanent basis.
162. However, in deviation of the Rules, Notification in G.O.Ms.No.
47, Commercial Taxes and Registration Department dated 09.04.2010
was issued which culminated in the issuance of G.O.(D).No. 183,
Commercial Taxes and Registration Department dated 31.05.2010
followed by Recruitment Notification No. 258 dated 30.12.2010 and
amendment Notification vide G.O.Ms.No. 56, Commercial Taxes and
Registration Department dated 17.04.2012, whereby the provisions of the
Tamil Nadu Ministerial Service was amended.
163. Further, all the Promotes had acquired requite qualification to
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be promoted as ‘Assistants’ between 2010-2011 for including their names
both in the Annual List under Rule 13-A of the Tamil Nadu Ministerial
Service Rules and in the “Seniority List” under Rule 2(d) of the Tamil
Nadu State Registration Service Rules. However, since their services
were not regularized, they were deprived of promotion to the post of
Assistants which has been remedied.
164. Distortion in the treatment of the service of the Promotees
were remedied by conferring promotion with retrospective effect in the
year in which they would have been eligible to be promoted as Assistants.
Once promotion was conferred with retrospective effect, the seniority
also to be conferred on them.
165. Further, the Promotees possessed requite qualifications to be
promoted as Assistants at least 13 months prior to the appointment of the
‘Direct Recruitees’ on 18.12.2012/23.12.2012. This vital aspect was missed
out by the Writ Court while passing the Impugned Order.
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166. That apart, both the appointments and promotion to the post of
“Assistants” are through different method under the Rules. This aspect also
has not been considered by the Writ Court before passing the impugned
Order.
167. The seniority conferred on rest of 31 of 127 ‘Promotees’ who
were promoted to the post of ‘Assistants’ during the years 2013-2014,2015-
2016 and 2016-2017at best ought have been considered and discussed by
the Writ Court while passing impugned order in the Writ Petition filed by
Private Respondents 1 to 10/‘Direct Recruitees’. Seniority conferred to them
also ought not to have been disturbed by the Writ Court.
168. In Paragraph Nos. 63 and 64 of the Impugned Order, the Writ
Court has merely stated that the ‘Promotees’ were promoted to the post of
‘Assistant’ against the vacancy in the Panel Years 2012-2013 and 2013-
2014.
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169. Similarly, few others were promoted during 2012, 2013, 2015
and 2016 belatedly although they had requisite qualification much prior to
date of recruitment of the Direct Recruitees. Mr.V.A.Raja, the 6th
Appellant/21st Respondent in W.A.No.1207 of 2022 was appointed on
compassionate ground as a ‘Junior Assistant’ on 15.03.2007.
170. His service as a “Junior Assistant”was regularised with effect
from the date of appointment i.e., 15.03.2007 vide G.O.Ms.(2D). 141 dated
20.07.2012 with retrospective effect from the date of the appointment on
15.03.2007 in line with the definition of the expression ‘Appointed to a
service’ in Rule 2(1) of Part I of the Tamil Nadu State and Subordinate
Services Rules read with Rule 23(1) of Part II of the aforesaid Rules [Post
amendment, Section 28 of the 2016 Act].
171. Later, Mr.V.A.Raja was promoted as an ‘Assistant’ on
06.01.2014belatedly by the 12th Respondent against the vacancy meant for
promotion from the post of ‘Junior Assistant’.
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172. Thus, the Mr.V.A.Raja was also entitled for promotion like 96
others who were appointed in 2007 on Compassionate Grounds who were
promoted as Assistants on 24.11.2012.
173. Proceedings dated 06.01.2014 of the 12th Respondent bearing
Reference No. 16714/K1/2013 refers to Order of the 12th Respondent dated
24.12.2013.
174. However, a copy of the said Order dated 24.12.2013 of the 12th
Respondent has not been kept for our perusal. The aforesaid Order dated
24.12.2012 of the 12th Respondent appears to be a list prepared for
promotion during the Panel Year 2013-2014.
175. Mistake if any, that was committed in Order dated 06.01.2014
was that it stated appointment/promotion of Promotees as ‘Assistants’ will
be against the vacancy in the Panel Year 2013-2014. This mistake cannot
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deny notional promotion, if such promotion was due earlier.
176. This mistake in the Proceedings dated 06.01.2014 shows that
the Promotees mentioned therein were to be promoted against the vacancy
in the Panel Year 2013-2014.This mistake in any event cannot be to the
disadvantage of the Promotees like Mr.V.A.Raja, as he and they possessed
requisite qualification for being promoted earlier.
177. Thus, it is evident that the service of Mr.V.A.Raja as a Junior
Assistant was regularized belatedly only in 2012 and was therefore
entitled for accelerated promotion as an “Assistant” as there was delay in
regularizing his service as a ‘Junior Assistant’ for no fault on his part.
178. The Direct Recruitees in any event would not have acquired
necessary qualification for being considered seniors to Promotees who were
either promoted prior to 18.12.2012/23.12.2012 or who acquired the
qualification for being promoted as Assistant prior to
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18.12.2012/23.12.2012. Therefore, seniority which was conferred to him
like others cannot be questioned.
179. The Writ Court ought to have considered the fact that by
communication dated 02.11.2012 bearing Reference No. A3/6350/2012, the
President of the Bhavani Sagar Training Institute informed that about 25
Junior Assistants were to be sent for training in Batch No. 185 between
14.12.2012 to 11.02.2013. This is also reflected in proceeding dated
12.11.2012 bearing Reference No. 56226/K2of the 12th Respondent.
180. Since the Direct Recruitees like the Private Respondents in these
Writ Appeals were appointed only during the Panel Year 2012-2013 on
18.12.2012/23.1.2012, the seniority conferred on the Promotees ought not
to have been touched.
181. The seniority of 96 of 127 ‘Promotees’ promoted in the year
2012-2013 on 25.11.2012 etc could not have been touched as these
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promotions given to these ‘Promotees’ were itself belated as they were not
sent for mandatory training by the Official Respondents although they
became eligible to be sent for such training long before.
182. Since 96 of 127 Promotees were promoted as ‘Assistants’
on24.11.2012, seniority conferred on them notionally from the year 2010
to 2012ought not have been disturbed. Their seniority in the Seniority List
cannot impact the seniority of Direct Recruitees recruited on 18.12.2012.
183. 16 of those ‘Promotees’ who were promoted as ‘Assistants’ in
the year 2013 have been given retrospective seniority notionally from the
years 2011, 2012 etc and rest of the 15 ‘Promotees’ who were promoted as
‘Assistants’ during the year 2015-2016 have also been given notional
seniority on various dates during November, 2012 etc.
184. These dates of notional promotion are before and prior to the
actual date of appointment i.e., on 18.12.2012/23.12.2012 of the Private
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Respondents/‘Direct Recrutiees’ to the post of ‘Assistants’. If these
“promotees” were indeed entitled to be promoted prior to the appointment
of the Private Respondents/‘Direct Recrutiees’ on 18.12.2012/23.12.2012,
their right seniority ought not to have been disturbed.
185. Therefore, it cannot be held that Promotees who were either
promoted prior to appointment of Direct Recruitees on
18.12.2012/23.12.2012 or who were entitled to be promoted before the
appointment of the Private Respondents/‘Direct Recrutiees’ on
18.12.2012/23.12.2012 infringed their rights or their rights were trampled.
On the contrary, it is the rights of the Promotees which was trampled upon
was rectified by the impugned proceedings of the 12th respondent.
186. Similarly, it also cannot be held that those Promotees who
acquired qualification prior to 18.12.2012/23.12.2012for being promoted as
‘Assistants’ were juniors to Direct Recruitees as they were not responsible
for delay in their promotion to the post of ‘Assistants’. If promotion is to be
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conferred notionally, seniority also will have to be conferred on them.
187. The delay in regularising their probation and promotion while
serving as Junior Assistant cannot be to the disadvantage of these 127
Promotees.
188. If their services were regularized as when they became eligible
for declaration of probation as ‘Junior Assistant’ they would have been
promoted as ‘Assistants’ against the sanctioned vacancies long before the
recruitment of Private Respondents/Direct Recruitees as ‘Assistants’ on
18.12.2012/23.12.2012.
189. Further, at the time when direct appointments were made on
18.12.2012/23.12.2012 to the post of ‘Assistants’, the Direct Recruitees
could not have possessed all other requisite qualification i.e., clearing of the
Departmental Tests for including their names either in the Annual List or in
the Seniority List in the respective Service Rules.
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190. In any event, the names of the Direct Recruitees could not have
been included in the ‘Annual List’ contemplated under Rule 13A of Tamil
Nadu Ministerial Service Rules, as they would not have possessed
requisite qualification for promoting to the next higher post of ‘Sub-
Registrar, II Grade’ under the Tamil Nadu Registration Subordinate
Service Rules in the year of their appointment.
191. Neither there is any discussion in the Impugned Order nor an
attempt made to elicit as to when the Direct Recruitees came to possess the
requisite additional qualifications viz.,Registration Test, Account Test for
Subordinate Officers, Part I and District Office Manual Test which
qualifications were obtained by the Promotees in the year 2010.
192. Thus, the Writ Court has thus wrongly entertained the Writ
Petition and has interfered with the internal mechanism for correction of the
seniority in the seniority list and has bypassed the internal method under the
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Rule prescribed for correcting the Seniority List.
193. Injustices caused to 127 Promotees were rectified which has
been disturbed in the impugned Order by the Writ Court without eliciting
the details and ignoring the admission in Paragraph No. 5 of the affidavit
filed in support of the Writ Petition, the seniority of all the Promotees has
been disturbed by the Writ Court. A reading of Paragraph No. 5 of the
Affidavit filed along with the Writ Petition and the Table below it would
indicate that only 16 of the 126 Promotees were appointed vide Proceedings
bearing C.No.16714/K1/2013 dated 06.01.2014. 96 had already been
promoted on 24.11.2012. That apart, the Seniority List has been disturbed
ignoring the Relevant Rules.
194. Until the amendment Tamil Nadu Ministerial Service Rules
vide G.O.Ms.No.56, Commercial Taxes and Registration Department
dated 17.04.2012 with retrospective effect from 09.04.2010, the Post of an
‘Assistant’ was only a Promotional Post under Tamil Nadu Ministerial
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Service Rules in the Registration Department.
195. The following table summarizes the Method of Appointment,
Qualification and Appointing Authority under the Tamil Nadu
Ministerial Service Rules for the following post of:-
1. Junior Assistant
2. Junior Assistant employed as Tour Clerk
3. Assistant
4. Assistant employed as Tour Clerk
Table:6
166
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Appointment Authority
Junior Assistant (i)Direct In addition to an
Recruitment adequate knowledge of
Tamil, the candidate
1 concerned, if so required
by the appointing
Junior Assistant authority, must possess
employed as an adequate knowledge
Tour clerk of one of the languages
(ii)Recruitmen specified below, namely:
t by transfer Telugu, Malayalam,
Kannada, Urudu and
Hindi.
Inspector
General of
By way of Registration Test, Registration
Promotion Account Test for
Assistant Subordinate Officers,
Part I and District
Office Manual Test.
2
Direct Any Degree* +
Recruitment Registration Test,
Account Test for
Subordinate Officers,
Part I and District
Office Manual Test
Assistant Recruitment Must have passed by
employed as by Transfer. the Higher Grade the
Tour Clerk Government Technical
Examinations in
Shorthand and
Typewriting.
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S.No Mode of Qualification Appointing
Appointment Authority
Junior Assistant - III
Annexure III II
Assistant - IV
[* by G.O.Ms.No.56, Commercial Taxes and Registration Department dated
17.04.2012 with effect from 09.04.2010]
196. It has to be also remembered that G.O.(D).No. 183, Commercial
Taxes and Registration Department dated 31.05.2010 which was issued
pursuant to G.O.Ms. 47, Commercial Taxes and Registration
Department dated 09.04.2010 was by way of an exception to the procedure
prescribed for appointment under the Tamil Nadu Ministerial Service
Rules for filling up the post of ‘Assistant’ by direct recruitment.
197. There was delay in promoting the Promotees as Assistant earlier
even though they possessed requisite qualification to be appointed as
Assistants much prior to the appointment of the Direct Recruitees on
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18.12.2012/23.12.2012.
198. Therefore, the placement of the names of the Promotees in the
Seniority List for the above Direct Recruitees ought not to have been
tampered with or meddled with, if they were eligible for promotion before
the appointment of Direct Recruitees on 18.12.2012/23.12.2012.
199. That apart, mere inclusion of a name in the ‘Authoritative list’
did not confer any right upon such a person for appointment to a post by
recruitment by transfer. As such a person cannot claim appointment to a post
immediately on release of such a list of approved candidates as a matter of
right by virtue of inclusion in that ‘Authoritative List’.
200. Such inclusion cannot result in automatic inclusion in the
‘Seniority List’ for promotion. The appointing authority can appoint or
promote only vacancy and subject to such a person possessing the requisite
qualification during the particular Panel Year.
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PROBATION PERIOD:
201. As per Rule 32(a)(i) of Tamil Nadu Ministerial Service Rules,
every person appointed to a category by way of Direct Recruitment, shall be
on probation for a time period of two years on duty within a continuous
period of three years. Rule 32(a)(i) of Tamil Nadu Ministerial Service
Rules is extracted below:-
32. Probation:-
(a)(i)Every person appointed to a category by direct
recruitment, shall be on probation for a total period
of two years on duty within a continuous period of
three years:
202. On declaration of probation of service, the Appellants
(Promotees) and similarly placed persons also became a full member within
the meaning of the definition of ‘Full Member’ in Rule 2(8) of Part I of
Tamil Nadu State Subordinate Service Rules [presently, 2(k) of the 2016
Act]. The expression ‘Full Member’ reads as under:-
“(8) “Full member”means a member whose service has
been confirmed in the service in which he has been first170
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203. There is also no discussion in the Impugned Order of the Writ
Court as to whether the Private Respondents (Writ Petitioners/Direct
Recruitees) were eligible to be promoted to the post of ‘Sub-Registrar, II
Grade’ and had qualified for the said post before their probation was
declared ‘Assistants’ on 18.03.2016 and whether they have cleared the
requisite qualifications for promotion.
204. Thus, the Direct Recruitees were to be in probation only for two
years within a continuous period of three years. Thus, their probation should
have been declared only in 2014. Pursuant to the appointments made in line
with the recommendation inG.O.Ms.No. 47, Commercial Taxes and
Registration Department dated 09.04.2010when indeed there was no
scope for appointment of ‘Assistants’ by way of ‘Direct Recruitment’.
Under the Rules.
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205. These Promotees, who were recruited in 2007, were sent for
training to Bhavani Sagar Training Institute in the year 2012, 2013 and
2014belatedly. Thereafter, their probation as ‘Junior Assistants’ were
declared and thereafter they were promoted as ‘Assistants’ on the various
dates as mentioned in Paragraph No.5 of the Affidavit filed in support of the
Writ Petition.
206. The dates of promotion as in Paragraph No. 5 of the Affidavit
filed in support of the Writ Petition, which have been captured earlier,
would reveal that 96 of the Promotees of 127 were promoted on 24.11.2012,
16 were promoted on 19.11.2013 and 15 were promoted on
07.06.2016.These dates were before the dates on which the Direct
Recruitment would have acquired requisite qualification.
207. As per Rule 23(a)(i) of the Tamil Nadu State and Subordinate
Service Rules, which is similar to Section 28 of the 2016 Act, persons
appointed on temporary basis either under Rule 10(a) or 10(d) to fill such a
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vacancy in any service, class or category, otherwise than in accordance with
the rules governing the appointments to fill such a vacancy when, such
vacancy is being a vacancy that may be filled by direct recruitment and a
person is subsequently appointed to the service, class or category in
accordance with the Rules, probation commences either from the date of
first temporary appointment or from such subsequent date, as the appointing
authority may determine.
208. Thus, the date of commencement of probation is to be either
from the date of temporary appointment or from such subsequent date as
may be determined by the appointing authority. As per the proviso to the
aforesaid Rule/Section, the date of the commencement of probation shall
not be earlier from the date of commencement of probation of the junior
most person already in service.
209. The argument that the declaration of probation of the Promotees
were made from an earlier date than the date of commencement of probation
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of the Private Respondents (Direct Recruitees) already in service from
18.12.2012 cannot be countenanced as already 96 of 127 Promotees were
appointed on 24.11.2012 only 31 were promoted after
18.12.2012/23.12.2012. Thus, there is no comparison between the two
categories i.e., Promotees and Direct Recruitees for the purpose of the
aforesaid Rule/Section, even if the 1stproviso to the aforesaid Rule/Section
is applied.
210. What is contemplated in the proviso to the aforesaid Rule is that
the determination of commencement of probation of those who are recruited
on temporary basis under Rule 10(a) and 10(b) of Tamil Nadu State and
Subordinate Service Rules, [formerly, Sub-clause (1) and (2) of Section 17
of 2016 Act] and the inter se seniority with the junior most person already in
service cannot be tampered with.
211. Therefore, there cannot be any discrimination is so far as
commencement and declaration of probation between these two categories
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of ‘Assistants’, namely, Promotees appointed on compassionate grounds and
Direct Recruitees appointed on 18.12.2012 directly as ‘Assistants’.
212. The commencement of probation of the 9 Appellants/Promotees
in these Writ Appeals, as also the rest of 118 Promotees has to date back
necessarily either to the date of their actual appointment to the post of
‘Junior Assistants’ or any date as may be determined by the appointing
authority subject to the proviso to the aforesaid Rule/Section.
213. Although, the appointment of the Appellants/Private
Respondents, (‘the Promotees’) and other similarly placed persons were on
compassionate grounds, their appointments even if not strictly in
accordance with the provisions of the Tamil Nadu State Subordinate
Service Rules, initially their appointmentshave to be treated as regular
under Rule 10(a)(i)(1) of the Tamil Nadu State Subordinate Service
Rules and later under the provisions of the Tamil Nadu Ministerial
Service Rules.
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214. Their appointment as ‘Junior Assistants’ ought to have been
regularised earlier in view of the prevailing Government Orders and in view
of the decisions of the Hon’ble Supreme Court in various cases where
appointments were made on compassionate grounds.
215. The probation of the Appellant/Promotees ought to have been
declared earlier in terms of Rules 32(a)(i) of the Tamil Nadu Ministerial
Service.
216. There is also no dispute that these Promotees had equipped
themselves by writing necessary Departmental Tests which would have
entailed them promotion to the next promotional post of ‘Assistants’ in
accordance with Section 22 of Vol III – Tamil Nadu Service Manual viz.,
Tamil Nadu Ministerial Service Rules as it stood then.
217. The Private Respondents, who are the Direct Recruitees cannot
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have any grievance regarding the commencement of probation of the
Promotees whose services were unfortunately not regularised till 2012 to
2016 in spite of they having cleared the Departmental Tests in the year
2010.
218. Since the Private Respondents/Direct Recruitees were appointed
after the amendment to the Tamil Nadu Ministerial Service Rules, their
probation in the post of ‘Assistants’ was declared on time within a period of
two years on 18.03.2016.
219. In fact, the recruitment of Private Respondents/Direct Recruitees
was not even contemplated in 2010 till the issuance of G.O.Ms.No. 47,
Commercial Taxes and Registration Department when the Promotees
became eligible for promotion to the post of ‘Assistants’.
220. Somewhat similar circumstance was discussed by the Hon’ble
Supreme Court in the S.B.Parwardancase (cited supra) which decision
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was affirmed by the Singla case (cited supra) and which was followed by
the Court in Rudra Kumar Sain case (cited supra).
221. At the outset, I would like to draw attention to a decision of a
Division Bench of the Madurai Bench of this Court in W.A.(MD).Nos. 597
to 599 of 2022 in The Director, Animal Husbandry and Medicine & Ors
Vs. V.Ilango, wherein one of us was a party to the decision (Hon’ble
Justice Mr.S.S.Sundar). There, the Division Bench observed as under:-
“12. The issue of “acquiring of service qualification” is dealt
with in several writ petitions and the Courts have consistently
held that the prescription of service qualification and the
delay in acquiring the said service qualification cannot be
attributed on the individuals, since the individuals are sent for
training by the employer based on the available vacancy. The
trainings like Bhavani Sagar training, Revenue Assistant
training, Junior Assistant training and other several
trainings are considered as service qualification and the
Courts have held that delay in sending for service
qualification cannot be attributed on the employees. Hence
the Learned Single Judge had rightly held that the claim of
the appellants cannot be accepted, since it is settled
proposition that the service qualification cannot be held
against the employees.”178
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222. The Hon’ble Supreme Court has time and over held that
seniority in service jurisprudence is not a vested right and that it should be
in consonance with rules and regulations governing the service which the
State can modify even retrospectively in accordance to the circumstance and
if deemed necessary in the public interest.
223. In S.B.Patwardhan Vs. State of Maharashtra (1977) 3 SCC
399, the issue before the Hon’ble Court was that whether the Promotees and
Direct Recruitees belong to the same class and whether they can be treated
equally and/or whether they belong to different classes and categories and
can be justifiably treated unequally.
224. The Hon’ble Supreme Court while deciding on the issue in the
aforesaid case held that it should be borne in mind the basic principle that
when a cadre consists of both permanent and temporary employees, the
accident of confirmation by the Government cannot be an intelligible
criterion for determining the seniority between the Promotees and Direct
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Recruitees. It was held that all other factors being equal, continuous
officiation ought to receive recognition in determining the seniority as
between persons recruited from different sources so long as they belong to
the same cadre, discharge similar functions and bear similar responsibilities.
225. The Full Bench of the Hon’ble Supreme Court in O.P. Singla
&Anr Vs. Union of India & Others., 1984 AIR 1595 affirmed its views in
S.B.Patwardhan Vs. State of Maharashtra (1977) 3 SCC 399 and
provided a framework for determining inter se seniority between direct
recruits and Promotees, emphasizing the importance of continuous length of
service in the cadre for Promotees.
226. The decision of the Hon’ble Supreme Court centers around
fairness and equity thereby ensuring that promotees who have served for a
longer period of time are not unfairly placed junior to direct recruits who
have been appointed later into the service. It further stated that promotion
and seniority should be non-discriminatory and should pass the test of
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constitutionality under Articles 14 and 16.
227. There appointments were made on a ‘temporary basis’ both
under Rule 16 and 17 of the Delhi Higher Judicial Services Rules which I
shall be referring to in due course in the discussion. Suffice to state for the
present that, in the aforesaid case, appointments were against substantive
vacancies and by creation of ‘temporary posts’ in the Delhi Higher Judicial
Service.
228. The Delhi Higher Judicial Service had issued a Recruitment
Notification on 31.01.1981 and invited applications for filling up three
permanent posts in the cadre of Delhi Higher Judicial Service.
229. The Petitioners therein were promotees who had joined services
long back and thus the disputed the recruitment by way of Direct
Recruitment for the aforesaid permanent posts.
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230. The case thus reached the shores of the Hon’ble Supreme Court
directly to settle the inter se seniority between the persons who were serving
against temporary vacancies created and those against temporary posts and
those recruited directly pursuant to the aforesaid Recruitment Notification
dated 31.01.1981.
231. The Hon’ble Supreme Court in Singla case (cited supra) held
that a person inducted into cadre through different sources under Rules are
entitled to equal treatment in fixation of their inter se seniority. Based on the
facts, the Court therein held that temporary promotees cannot be
discriminated against and placed junior to direct recruits in the seniority list
merely because their authorities failed to convert their posts into permanent
posts despite their long and continuous officiation in the promotional posts.
This is quite similar to the factual situation with which this Court is
concerned with in the present case.
232. There the Hon’ble Supreme Court was concerned with
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appointments made under Rule 16 and 17 of the Delhi Higher Judicial
Service Rules. The schedule to the Rules shows that the initial authorised
permanent strength of the Delhi Higher Judicial Service was 16, out of
which one was to be District and Sessions Judge and 12 were to be
Additional District and Sessions Judges. Remaining were appointed in
Leave-deputation reserve vacancies. Out of these 16 posts, one was a super
time scale post, three were selection grade posts and twelve were time scale
posts.
233. The contention of the Petitioners therein is that seniority
between promotees and direct recruitees must be determined in accordance
with their respective dates of their continuous officiation as Additional
District and Sessions Judges and that, Direct Recruits who were appointed
as Additional District and Sessions Judges after the promotees are so
appointed, cannot be ranked higher in seniority over the promotees.
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234. It was urged that the promotees discharge identical functions
and bear same responsibilities as the direct recruits and upon their
appointments they constitute one common class.
235. The Hon’ble Supreme Court referred to Rule 7, 8 and 9 of the
Delhi Higher Judicial Service Rules which deal with regular recruitment
and inter se seniority among the members of the Delhi Judicial Service.
References to these rules are in Paragraph Nos. 8 to 9 of the said decision.
In Paragraph No. 10, the Court has also referred to the initial recruitments to
the service and has referred to Rule 12, 13 and 15 of the aforesaid Rules.
236. In Paragraph No.11 of the said decision, the Court referred to
Rule 16 and 17 in Part V of the Delhi Higher Judicial Service Rules which
dealt with ‘temporary appointments’. For the sake of clarity, relevant
portion of the decision referring to those rules are reproduced below:-
“11. Rules 16 and 17, which occur in Part V of the
Rules called ‘Temporary Appointments’, are also
important for our purpose though they fall in a184
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WA.Nos.1027 & 2308/2022category distinct and separate from the one in which
Rules 7 and 8 fall. They read thus:
Rule 16 –
(1) The Administrator may create temporary posts in
the Service.
(2) Such posts shall be filled, in consultation with the
High Court, from amongst the members of the Delhi
Judicial Services.
Rule 17 —
Notwithstanding anything contained in these Rules, the
Administrator may, in consultation with the High Court,
fill substantive vacancies in the Service by making
temporary appointments thereto from amongst members
of the Delhi Judicial Services.”
237. Para 10 of the decision of the Hon’ble Supreme Court in Singla
case (cited supra) reads as under:-
“The initial recruitment to the Service was made by the
Administrator in consultation with the High Court in
accordance with Rule, 6 from amongst the District
Judges and Additional District Judges who were
functioning in the Union Territory of Delhi on
deputation from other States and those whose names
were recommended by the respective States for such
appointment. Those persons who were appointed to the
Service as part of the initial recruitment stood
confirmed with effect from the very date of their185
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WA.Nos.1027 & 2308/2022appointment. That is provided by Rule 12(1). Sub-rule
(2) of Rule 12 provides that all other candidates who
are appointed to the Service shall be on probation for a
period of two years. Rule 13 requires that all persons
appointed to the Service shall be confirmed at the end
of the said period of two years, provided that the
Administrator may, on the recommendation of the High
Court, extend the period of probation but not so as to
exceed three years on the whole. After the successful
completion of probation, the officer is confirmed in the
Service by the Administrator in consultation with High
Court as provided in Rule 15.”
238. There, the qualifications for appointment as Additional Judges
made under Rule 16 and 17 Delhi Higher Judicial Service Rules were one
and the same. However, the method of appointment was different. The first
method was appointment as Additional Judges against ‘Temporary Posts’
and the second method was appointment as Additional Judges against
substantive posts.
239. Whereas, in the present case there is a marked difference in the
qualification of ‘Promotees’ and that of the ‘Direct Recruitees’.
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240. The majority view was authored by the Hon’ble Mr.Chief
Justice, Y.V.Chandrachud, as he was then for himself and Hon’ble
Mr.Justice Pathak. They concluded as under:-
“30. This order shows that, firstly, by a notification
dated March 13, 1972, the Administrator created
temporary posts in the Service under Rule 16(1);
secondly, four promotees were appointed to those posts
in the Delhi Higher Judicial Service; and thirdly, that
they were appointed ‘till further orders’. The
appointments were neither ad hoc , nor fortuitous, nor
in the nature of a stopgap arrangement. Indeed, no
further orders have ever been passed recalling the four
promotees and, other similarly situated, to their
original posts in the subordinate Delhi judicial Service.
Promotees who were appointed under Rule 16 have
been officiating continuously, without a break, as
Additional District and Sessions judges for a long
number of years. It is both unrealistic and unjust to
treat them as aliens to the Service merely because the
authorities did not wake up to the necessity of
converting the temporary posts into permanent ones,
even after some of the promotees had worked in those
posts from five to twelve years. Considering the history
of Delhi Higher Judicial Service, it is clear that the
phrase ‘till further orders’ is only a familiar official
device to create and perpetuate temporary posts in the
Service when the creation of permanent posts is a
crying necessity. The fact that temporary posts created187
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WA.Nos.1027 & 2308/2022in the Service under Rule 16(1) had to be continued for
years on end shows that the work assigned to the
holders of those posts was, at least at some later stage,
no longer of a temporary nature. And yet, instead of
converting the temporary posts into permanent ones, the
authorities slurred over the matter and imperilled,
though unwittingly, the reasonable expectations of the
promotees. ‘Unwittingly’ because, no one appears to be
have been interested in belittling the contribution of
promotees who held temporary posts in the Service or in
consciously jeopardising their prospects. The tragedy is
that no one was interested in anything at all. Or else,
why was direct recruitment not made from time to time,
at regular intervals? If that were done, the undesirable
situation which confronts us today could have been
easily avoided. The proviso to Rule 7 prescribes a
system of quota and rota. Why was that Rule put in cold
storage by creating temporary posts in the Service when
permanent posts were clearly called for? Permanent
posts could have been allocated to direct recruits and
promotees in the ratio of one to two. In these
circumstances, it will be wholly unjust to penalise the
promotees for the dilatory and unmindful attitude of the
authorities. It is not fair to tell the promotees that they
will rank as juniors to direct recruits who were
appointed five to tend years after they have officiates
continuously in the posts created in the Service and held
by them, though such posts may be temporary. This
Court, at least must fail them not.
31. From an earlier part of this Judgement it would
appear how, though the proviso to Rule 7 prescribes a
quota of one-third for direct recruits and provides for
rotation of vacancies between them and the promotees188
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WA.Nos.1027 & 2308/2022who are appointed to the Service, that Rule must
inevitably break down when appointments of promotees
are made to the Service under Rule 16 and 17.
Appointments of promotees under these two Rules have
to be made from amongst the promotees only. Whenever
appointments are made to the Service under either of
these Rules, neither the quota reserved for direct
recruits nor the rule of rotation of vacancies between
them and the promotees can have any application. The
question then is, in situations resulting in the
suspension of the rule of ‘quota and rota’, which is the
equitable rule for determining seniority between direct
recruits on the one hand and promotees who are
appointed under Rule 16 and 17 on the other? It is
difficult to evolve a rule which will cause no hardship of
any kind to any member of the Service. Therefore, the
attempt has to be to minimise, as far as possible, the
inequities and disparities which are inherent in a system
which provides for recruitment to the Service from more
than one source. While doing this, the one guiding
principle which must be kept in mind is that
classification in a gloss on the right to equality. It is but
a step in the process of working out the equities between
persons who are entitled to equal treatment. It is
therefore necessary to ensure that classification is made
on a broad, though rational, basis so as not to produce
the self-defeating result of denying equality to those,
who in substance, are entitled similarly.
32. That is why, it would be hyper-technical to make a
sub-classification between promotees appointed under
Rule 16 and those appointed under Rule 17, with the
object of denying to the latter the equality of status and
opportunity with the former and with direct recruits. It
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is true that under Rule 16, promotees are appointed to
temporary posts in the Service while, under Rule 17
they are appointed in a temporary capacity to
substantive vacancies in the Service. But this kind of
service jargon clouds the real issue as to weather
persons appointed under different rules necessarily
belong to different classes and tends to produce
inequalities by an artful resort, dictated by budgetary
expediency, to the familiar device of fixing dissimilar
lables on posts which carry the same duties and
responsibilities and are subject to similar pre
appointment tests. It may even be that in the process of
consultation, the High Court exercises greater
vigilance in regard to appointments proposed under
Rule 16 than in regard to appointments which are
proposed under Rule 17. But. the fact that the High
Court chooses to adopt, of its own volition, any
particular approach in the matter of appointments
made under different rules necessarily belong to
different classes. The requirement for appointments
under both the rules is, equally, that they must be
made in consultation with the High Court. The High
Court is, therefore, expected to apply the same
standard and adopt the same approach whether
appointments are proposed to be made under Rule 16
or Rule 17 will result in the creation of a distinction
where no difference exists, The object of classification
is to find a remedy to such situations, not to create or
perpetuate them.”
241. The above majority view of the Hon’ble Supreme Court in
Singla case (cited supra) is not different from the minority view of Hon’ble
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Mr. Justice Sabyasachi Mukharji, as he was then.
242. The view of Hon’ble Mr. Justice Sabyasachi Mukharji
encapsulated the majority in para 61 with the following observation:-
“61.In this task in the instant case there is one advantage that
though there are numerous decisions, dealing with rights and
privileges of promotees vis-a-vis direct* recruits, there is no
case, at least none to which attention was drawn in this case,
where the Rule dealing with position between district recruits
and promotess in a service composed of two different types of
recruits, is worded in the manner as provided in the Rules in
the instant case. It is well settled that bereft of anything
where a service consists of recruitments made from two
different sources and the rules and regulations provide for
their recruitment and their rights inter se, primarily and
essentially those rights have to be adjusted within the
scheme of the rules though it might in some cases lead to
certain amount of imbalances or injustices because a
service is built on various consideration and various factors
induce the legislature or the rule-making authority to
induce different and diverse knowledge, diverse aptitudes
and requirements needed for running of the service. The
legislature or the rule making authorities have better
knowledge and better capacities to adjust those factors.It is
common knowledge that administration of justice in this vast
land of ours, where there are growing expectations with the
explosion of ideas with new problems, call for fusion of
different calibres, talents and aptitudes. Administration of
justice calls for independence of mind, freshness of outlook,
uninhibited by normal service life and routine. It also calls191
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WA.Nos.1027 & 2308/2022for experience in writing judgements and knowledge
gathered in conducting cases from lower rank and gaining
experience thereby and any ideal system would be where
there is complete fusion between these two sources and
streams of knowledge to enrich the machinery of the
administration of justice. But the machinery of the
administration of justice fused in that manner must work
with a sense of justice within itself but if, as very often is
the case in this country, where there are recruitments from
different sources instead of creating harmony and that
harmony utilised with dedication for the purpose of the
institution, creates disharmony and discontent amongst the
various segments of that institution generating amongst
many a brooding sense of injustice, real or imaginary.
Justice should be the end of all law. But then what is
justice? Is it merely creating situations for the realisation
of ones just expectations or is it adjustment of the rights
and expectations of amny in the administration with sense
of justice within the machinery administering justice in
accordance with the rules designed to attract talents?
Independence, experience and knowledge must be the
courts are not fettered or bound by precedents, to ensure
that justice flows, such justice is essential for society to
survive.It is important because it enables the individuals in
the administration of justice to service justice and to identify
themselves with the process. But by rules, I cannot make
justice certain in this uncertain age but all I can ensure is,
attempt to prevent injustice. Most of the problems as are
apparent in working out these types of schemes and rules
have been due to the failure to see the reality and the desire
to proceed on ad-hocism.”
(* to be read as direct)192
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243. The Hon’ble Supreme Court in Singla case (cited supra) made it
clear that where a service consists of recruitments made from two different
sources and the rules and regulations provide for their recruitment and their
rights, primarily those rights have to be adjusted within the scheme of the
rules though it might in some cases lead to certain amount of imbalances or
injustices.
244. Thus, it cannot be straight away inferred that seniority is to be
reckoned from the date of appointment especially when there are two
different method of appointments.
245. Relying on the aforesaid judgement in Singla case (cited supra),
the Hon’ble Supreme Court in Rudra Kumar Sain (cited supra), held that
appointment of employee possessing statutory qualifications to the
promotional post after due consultation with or approval of the competent
authority, and continue for a fairly long period, held, is not ad hoc,
fortuitous or stopgap and therefore such service cannot be ignored in
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computing the length of service for inter-se seniority between such
Promotees and Direct Recruits. This is quite similar to the facts of the
present case.
246. In Paragraph Nos. 20 and 21 of Rudra Kumar Sain (cited
supra), the Hon’ble Supreme Court has succinctly captured the service law
jurisprudence with more clarity. Paragraph Nos. 20 and 21 of the aforesaid
decision are reproduced below:-
“20. In service jurisprudence, a person who possesses
the requisite qualification for being appointed to a
particular post and then he is appointed with the
approval and consultation of the appropriate authority
and continues in the post for a fairly long period, then
such an appointment cannot be held to be “stopgap or
fortuitous or purely ad hoc”. In this view of the matter,
the reasoning and basis on which the appointment of the
promotees in the Delhi Higher Judicial Service in the
case in hand was held by the High Court to be
“fortuitous/ad hoc/stopgap” are wholly erroneous and,
therefore, exclusion of those appointees to have their
continuous length of service for seniority is erroneous.
21. In view of our conclusions, as aforesaid, we quash
the seniority list, both provisional and final, so far as, it
relates to the appointees either by direct recruitment or
by promotion in the Delhi Higher Judicial Service, prior194
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WA.Nos.1027 & 2308/2022to the amendment of the Recruitment Rules in the year
1987, and their inter se seniority must be redetermined
on the basis of continuous length of service in the cadre,
as indicated in Singla case’ and explained by us in this
judgment. Since the future of these officers to a great
extent depends upon seniority and many of these officers
may be on the verge of superannuation, the High Court
would do well in finalising the seniority within a period
of six weeks from the date of receipt of this judgment.”
247. The discussion of the Hon’ble Supreme Court in the aforesaid
case leading to the above decision in Paragraph Nos. 20 and 21 are captured
below:-
“14. So far as the contention of Mr Gopal Subramanium,
the learned Senior Counsel appearing for the direct
recruits is concerned, in praying for reconsideration of
the judgment of this Court in Singla case the same also
cannot be sustained inasmuch as the Court in Singla case
did consider the c earlier decision of this Court in
Chandramouleshwar case and recorded a finding that in
that case, it was only a matter of adjustment of seniority
between the promotees inter se and not between the
promotees and direct recruits and, therefore, the ratio
therein is of no application. Further, Justice Mukharji, in
his concurring judgment did consider Joginder Nath
case3 and held that the principle evolved therein cannot195
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WA.Nos.1027 & 2308/2022be applied to the case in hand, where inter se seniority
between the promotees and direct recruits are going to be
decided on equitable consideration. We are also unable to
accept the contention of Mr Subramanium that until the
principle of “quota” provided in Rule 8 is made applicable
to appointments under Rules 16 and 17, such appointees,
under Rules 16 and 17 cannot claim continuous length of
service for their seniority. Such a contention appears to
have been considered and negative in Singla case’. The
judgment of this Court in Singla casel is obviously
intended to evolve some equitable principle for
determination of inter se seniority of a group of officers,
when the Rule of seniority contained in Rule 8(2) has
been held to be not operative because of breaking down
of “quota and rota Rule. To meet the peculiar situation,
the Court evolved the principle that continuous length of
service should be the criteria for inter se seniority
between the direct recruits and the promotees, provided,
the promotees did possess the required qualification as
per Rule 7 and the appointments had been made under
Rules 16 and 17, after due consultation and/or approval
of the High Court, which in our view also is the most
appropriate basis, evolved in the fact-situation. This
being the position, we see no justification for
reconsidering the decision of this Court in Singla case.
That apart, the Recruitment Rules have been amended in
the year 1987 and the aforesaid principle, which had been
evolved in Singla case would apply for determining the
inter se seniority between the promotees and direct
recruits, all of whom had been appointed to the Higher
Judicial Service, prior to the amendment of the Rules in
question, which was made in the year 1987. We have also
considered the arguments advanced by Mr P.P. Rao, the
learned Senior Counsel, appearing for the Delhi High196
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WA.Nos.1027 & 2308/2022Court and I am unable to persuade ourselves to accept the
same inasmuch as it is not a mere question of levelling, as
urged by Mr Rao, but, it is a question which was directly
considered by this Court in Singla case and after
examining the a representative order the Court positively
recorded a conclusion that the appointments made under
Rule 16 or 17 cannot be held to be alien to the cadre. In
fact the Court was persuaded to come to the aforesaid
conclusion, as it was found that the persons appointed
under Rules 16 and 17 having all the necessary
qualifications and having been appointed after due
consultation with the High Court, though they had served
for more than five to seven years, but yet have been shown
junior to the direct recruits, who had come to the service
much later than them. It is, therefore, not possible for us
to accept Mr Rao’s contention and permit any further
scrutiny into such appointments made either under Rule
16 or under Rule 17 of the Recruitment Rules. It is in fact,
interesting to notice that the Schedule to the Recruitment
Rules, which came into existence in 1971 was amended for
the first time only in the year 1991, 20 years after and if a
strict construction to the different provisions of the Rules
would be given, then all the temporary appointees under
Rule 16, who might have rendered 5 to 10 years of service
would be denied of their right for the purpose of seniority.
It is this impasse created on account of inaction of the
authorities and on account of non-adherence to the
provisions of the Rules strictly, which persuaded the
Court in Singla casel to evolve the principles for working
out equities and that principle has to be followed by the
High Court in drawing up the seniority list. It is not
necessary to deal with the contention, raised by Mr
Rakesh Kumar, appearing for the direct recruits and Shri
J.P. Singh, appearing in person, who is a direct recruit
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also, as well as Mr R.C. Chopra, appearing in person,
who is a promotee, as essentially, they adopted the
arguments of either Mr Dipankar Gupta or Mr Gopal
Subramanium and Mr Kapil Sibal.
….
16.The three terms “ad hoc”, “stopgap” and “fortuitous”
are in frequent use in service_ jurisprudence. In the
absence of definition of these terms in the Rules in
question we have to look to the dictionary meaning of the
words and the meaning commonly assigned to them in
service matters. The meaning given to the expression
“fortuitous’ in Stroud’s Judicial Dictionary is “accident or
fortuitous casualty’, This should obviously connote that if
an appointment is made accidentally, because of a
particular emergent situation and such appointment
obviously would not continue for a fairly long period But
an appointment made either under Rule 16 or 17 of the
Recruitment b Rules, after due consultation with the High
Court and the appointee possesses the prescribed
qualification for such appointment provided in Rule 7 and
continues as such for a fairly long period, then the same
cannot be held to be “fortuitous. In Black’s Law
Dictionary, the expression “fortuitous” means “occurring
by chance”, “a fortuitous event may be highly
unfortunate”. It thus, indicates that it occurs only by
chance or accident, c which could not have been
reasonably foreseen. The expression “ad hoc” in Black’s
Law Dictionary, means “something which is formed for a
particular purpose”. The expression stopgap as per
Oxford Dictionary, means “a temporary way of dealing
with a problem or satisfying a need”.
….
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19. The meaning to be assigned to these terms while
interpreting provisions of a service rule will depend on the
provisions of that rule and the context in and the purpose
for which the expressions are used. The meaning of any of
these terms in the context of computation of inter se
seniority of officers holding cadre post will depend on the
facts and circumstances in which the appointment came to
be made. For that purpose it will be necessary to look into
the purpose for which the post was created and the nature
of the appointment of the officer as stated in the
appointment order, If the appointment order itself
indicates that the post is created to meet a particular
temporary contingency and for a period specified in the
order, then the appointment to such a post can be aptly
described as “ad hoc” or “stopgap”. If a post is created to
meet a situation which has suddenly arisen on account of
happening of some event of a temporary nature then the
appointment of such a post can aptly be described as
“fortuitous in nature. If appointment is made to meet the
contingency arising on account of an delay in completing
the process of regular recruitment to the post due to any h
reason and it is not possible to leave the post vacant till
then, and to meet this contingency an appointment is made
then it can appropriately be called as a “stopgap
arrangement and appointment in the post as “ad hoc”
appointment. It is not possible to lay down any strait-
jacket formula nor give an exhaustive list of circumstances
and situations in which such an appointment (ad hoc,
fortuitous or stopgap) can be made. As such, this
discussion is not intended to enumerate the circumstances
or situations in which appointments of officers can be said
to come within the scope of any of these terms. It is only to
indicate how the matter should be approached while199
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WA.Nos.1027 & 2308/2022dealing with the questions of inter se seniority of officers
in the cadre.
248. In S.S.Bola & Ors Vs. B.D.Sardana& Ors, (1991) 8 SCC 522,
the Hon’ble Supreme Court held that seniority of a government servant is
not a vested right and that an Act of State Legislature or a Rule under
Article 309 of the Constitution of India can retrospectively affect the
seniority of a government servant. However, a person recruited to a service
earlier cannot always claim seniority over a person who was promoted to
the post subsequently, if there were reasons to infer the promotion was
denied earlier for no fault of the latter. There Article 14 of the Constitution
will interplay in favour of the latter.
249. Para 153 from the said decision is extracted hereunder:-
“153 A distinction between the right to be considered for
promotion and an interest to be considered for promotion
has always been maintained. Seniority is a facet of
interest. The rules prescribe the method of
recruitment/selection. Seniority is governed by the rules200
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WA.Nos.1027 & 2308/2022existing as on the date of consideration for promotion.
Seniority is required to be worked out according to the
existing rules. No one has a vested right to promotion or
seniority. But an officer has an interest in seniority
acquired by working out the rules. The seniority should be
taken away only by operation of valid law. Right to be
considered for promotion is a rule prescribed by
conditions of service. A rule which affects chances of
promotion of a person relates to conditions of service. The
rule/provision in an Act merely affecting the chances of
promotion would not be regarded as varying the
conditions of service. The chances of promotion are not
conditions of service. A rule which merely affects the
chances of promotion does not amount to change in the
conditions of service. However, once a declaration of law,
on the basis of existing rules, is made by a constitutional
court and a mandamus is issued or direction given for its
enforcement by preparing the seniority list, operation of
the declaration of law and the mandamus and directions
issued by the Court is the result of the declaration of law
but not the operation of the rules per se.
250. In State of Bihar & Ors Vs. Akhousri Sachindra Nath &Ors.,
1991 Supp (1) SCC 334, the Hon’ble Supreme Court held that no person
can be promoted with retrospective effect from the date when he was not
borne in the cadre so as to adversely affect others. The Court further held
that inter se seniority will be considered from the date of the length of the
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reckoned from the date of their initial entry into the service.
251. There the Hon’ble Supreme Court further held that Promotees
cannot be made seniors over the direct recruits as the former entered into
service by promotion after the latter was directly recruited to the said post.
Relevant portion from the said Judgement is extracted below:-
“12. In the instant case, the promotee respondents 6 to 23
were not born in the cadre of Assistant Engineer in the
Bihar Engineering Service, Class II at the time when
respondents 1 to 5 were directly recruited to the post of
Assistant Engineer and as such they cannot be given
seniority in the service of Assistant Engineers over
respondents 1 to 5. It is well settled 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. It is well settled by several decisions of this
Court that among members of the same grade seniority
is reckoned from the date of their initial entry into the
service. In other words, seniority inter se among the
Assistant Engineers in Bihar Engineering Service,
Class II will be considered from the date of the length
of service rendered as ‘Assistant Engineers as amongst
members of the same grade seniority is reckoned from
the date of their initial entry into the service. The
promotees cannot be made senior to respondents 1 to 5
by the impugned government orders as they entered202
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to 5 were directly recruited in the quota of direct
recruits.”
252. In P.Sudhakar Rao & Ors Vs. U.Govinda Rao & Ors AIR
2013 SC 2533, the Hon’ble Supreme Court however, held that retro activity
must still meet the test of Article 14 and Article 16 of Constitution of India
and that it must not adversely trench upon the entitlement of seniority of
others. It further held that mere existence of a vacancy was not enough to
enable an employee to claim seniority and that seniority given from the date
when they were not even eligible for appointment to the said post is
impermissible.
253. Therefore, the Court held that in order to pass the scrutiny of
Article 14, seniority should be reckoned only from the date on which the
employees satisfied all real and objective procedural requirements.
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DECISIONS RELIED ON BY THE WRIT COURT IN THE
IMPUGNED ORDER:-
254. The judgments of the Hon’ble Supreme Court relied on by the
Writ Court in the Impugned Order, namely, V.Sreenivasa Reddy & Ors.
Vs. Government of Andhra Pradesh (cited supra),
K.Madalaimuthu&Anr. Vs. State of Tamil Nadu (cited supra),
M.P.Palanisamy& Ors. Vs. A.Krishnan & Ors. (cited supra) and Direct
Recruits Class II Engineering Officers-Association Vs. State of
Maharashtra and Ors. (cited supra) which were relied by the learned
Senior Counsel for the Direct Recruitees (Respondents/Writ Petitioners)
during hearing are not applicable to the facts and circumstances of the case
in hand as they dealt with a situation where appointment itself was made on
a temporary basis to a temporary post or in the post allotted to be filled by
way of ‘Appointment by Transfer/Promotion’.
255. They further dealt with situations where the period of service
before regularising the temporary appointments of delinquents in
accordance with law was ignored while considering the seniority.
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256. The fact also remains that all the ‘Promotees’ who were
appointed to the post of ‘Junior Assistants’ in the year 2007 and were
promoted as ‘Assistants’ only after their probation as ‘Junior Assistants’ was
declared later. Such belated promotion to the promotees as “Assistants”
cannot to be to their disadvantage.
257. Section 40(1) of the Tamil Nadu Government Servants
(Conditions of Service) Act, 2016 is parimateria with Rule 35(a) of the
aforesaid Rules. As per Sub-section (2) to Section 1 of the aforesaid Act,
Section 40(1) of the Tamil Nadu Government Servants (Conditions of
Service) Act, 2016 is deemed to have come into force with effect from
01.01.1995.
258. As per Section 40(i) of the Tamil Nadu Government Servants
(Conditions of Service) Act, 2016, the date of commencement of his
probation shall be the date on which he joins duty irrespective of his
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seniority and the seniority of a person in a service, class or category or
grade shall unless he has been reduced to a lower rank as a punishment be
determined by the rank obtained by him in the list of approved candidates
drawn up by the Tamil Nadu Public Service Commission or other
Appointing Authority, subject to the rule of reservation where it applies, as
the case may be.
259. As per Section 40(2) of the Tamil Nadu Government Servants
(Conditions of Service Act), 2016, 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.
260. The appointment of Direct Recruitees pursuant to G.O.Ms.No.
47, Commercial Taxes and Registration Department dated 09.04.2010,
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G.O.(D).No. 183, Commercial Taxes and Registration Department dated
31.05.2010 and Recruitment Notification No. 258 dated 30.10.2010 was
strictly not the ‘normal method’ of recruitment to the post of ‘Assistant’ but
for the statutory intervention vide G.O. Ms. No. 56, Personnel and
Administrative Reforms (B) Department dated 17.04.2012.
261. The facts on record is that the Recruitment Notification No.
258 dated 30.12.2010 by virtue of which the Private Respondents/‘Direct
Recruitees’ were appointed pursuant to the above mentioned Government
orders viz., G.O.(D).No. 183, Commercial Taxes and Registration
Department dated 31.05.2010 was issued without actually amending the
Tamil Nadu Ministerial Service Rules, although G.O.Ms.No. 47,
Commercial Taxes and Registration Department dated 09.04.2010. It
was clearly indicated that the Tamil Nadu Public Service Commission
(TNPSC) had recommended an amendment to the Tamil Nadu Ministerial
Service Rules.
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262. However, as mentioned aboveit is highly improbable that the
Direct Recruitees would have had the requisite qualification as per the
amended Rules when they were appointed on 18.12.2012/23.12.2012 as
‘Assistants’ in view of the amendment to Tamil Nadu Ministerial Service
Rules as amended by G.O.(Ms).No.56, Commercial Taxes and
Registration Department dated 17.04.2012.
263. On the other hand, the appointment of the Promotees on
compassionate grounds purportedly under Rule 10(a)(i)(1) of the Tamil
Nadu State and Subordinate Service Rules though contrary to the express
requirement of the aforesaid provision has been now recognised as a valid
method of appointment/recruitment both in terms of various Government
Orders issued in this regard and as per the decisions of the Courts.
264. Thus, both categories of appointments viz., appointment of
Promotees and recruitment/appointment of ‘Direct Recruitees’ at least
to begin with were contrary to the express provisions of the Tamil Nadu
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Ministerial Service Rules.
265. As far as the Promotees are concerned, their appointment on
compassionate grounds stands sanctioned in view of the Government Orders
issued for such recruitments on compassionate grounds.
266. As far as the appointments of Direct Recruitees are concerned,
their recruitment stands regularised in view of the amendment notification
vide G.O.(Ms).No.56, Commercial Taxes and Registration Department
dated 17.04.2012.
267. The delay in sending some of the ‘Promotees’ among 126 other
promotees to the Bhavani Sagar Training Institute has resulted in delayed
declaration of the probation of 96 of 127 ‘Promotees’ in 2012, 16 Promotees
in 2013 and 15 Promotees in 2014. Such delay cannot deny the ‘Promotees’
their right to seniority to the next higher posts on time.
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268. The fact remains that the delay in sending the ‘Promotees’ for
probation after they were recruited temporarily on compassionate grounds
to the post of ‘Junior Assistant’ was only on account of the delay by Official
Respondents, i.e., the 11th and 12th Respondents and not on account of any
delay attributable to Appellants/Private Respondents or rest of the
‘Promotees’.The delay on the part of the Official Respondents in declaring
their probation as Junior Assistant cannot be to their disadvantage.
269. Their interest cannot be subservient to the interest of the Direct
Recruitees who were recruited directly on 18.12.2012/23.12.2012. The Writ
Court also has not been informed that the delay in promoting the promotees
was not on account of any fault on the part of the Appellants/Private
Respondents and other ‘Promotees’ when their probation was declared.
270. The probation of these Promotees were declared in accordance
with Rule 23 of the Tamil Nadu State and Subordinate Service Rules
which prescribes ‘Date of commencement of probation of persons first
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appointed temporarily’. The initial date of appointment to the post of
‘Junior Assistant’ would be relevant as far as all other service benefits as per
the provision of Tamil Nadu State Subordinate Service Rules are concerned.
271. Therefore, once the service of the ‘Promotees’ and similarly
placed persons who were initially appointed to the post of ‘Junior
Assistants’ on compassionate grounds were regularised after declaration of
their probation period, they were entitled to be promoted and conferred
seniority over the directly recruited Private Respondents (Direct Recruitees)
who joined service only on 18.12.2012/23.12.2012 pursuant to artificial
intervention vide G.O.Ms.No. 47, Commercial Taxes and Registration
Department dated 09.04.2010 and G.O.(D).No. 183, Commercial Taxes
and Registration Department dated 31.05.2010 and Recruitment
Notification No. 258 dated 30.12.2010.
272. The services of the ‘Promotees’ are to be reckonedfrom the date
of their initial appointment to the post of ‘Junior Assistants’ in terms of
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Section 37 of Tamil Nadu Government Servants (Conditions of Service)
Act, 2016.
273. The delay on the part of the Official Respondents in sending the
Promotees for training although they had cleared their Departmental Exam
in the year 2010 before the Recruitment Notification No.258 dated
30.12.2010was issued pursuant to the G.O.Ms.No.47, Commercial Taxes
and Registration Department dated 09.04.2010 and G.O.(D).No.183,
Commercial Taxes and Registration Department dated 31.05.2010 was
issued by the Government and cannot be to their rights to claim seniority.
274. Merely because the Direct Recruitees were directly appointed on
18.12.2012/23.12.2012 after amendment to Category 12 in Rule 2 of the
Tamil Nadu Ministerial Service Rules on 30.12.2012 in Section 22 of the
Tamil Nadu Service Manual – Volume III vide G.O.(Ms).No.56,
Commercial Taxes and Registration Department dated 17.04.2012
cannot claim seniority over all Promotees included who had either cleared
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the necessary departmental examination earlier and were eligible to be
promoted earlier or who were promoted earlier to the Direct Recruitment of
the Private Respondents on 30.12.2012.
275. The Writ Court in Paragraph No. 4(iv) of the Impugned Order
has also erroneously referred to the years as 2012, 2013 and 2014 ignoring
the fact that 96 Promotees of 127 had already been promoted on 24.12.2012.
Only for 31 Promotees (some of the Appellants included) who were
promoted on 19.11.2013 and 07.06.2016, the seniority was notionally fixed
above the Direct Recruitees in the post of ‘Assistant’ as the actual date of
promotion of these 31 Promotees to the post of ‘Assistant’ was delayed,
though they qualified for promotion even prior to the appointment of Direct
Recruitees on 18.12.2012. Therefore, such delay cannot be to their
disadvantage. It would be unfair and arbitrary and contrary to Article 14 of
the Constitution.
276. Preparation of ‘Annual List’ in Rule 13A of Tamil Nadu
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Ministerial Service Rules is only intended for high lighting the names of
the persons who are eligible for promotion in the respective panel year with
15th of March of every year as the crucial date.
277. Unless, requisite additional qualifications were obtained by these
320 Direct Recruitees as mentioned in G.O.Ms.No.56, Personnel and
Administrative Reforms (B) Department dated 17.04.2012 and under the
provisions of the Tamil Nadu Ministerial Service Rules before the rest of
31 Promotees out of 127 Promotees, who were promoted in the year 2013-
2014 and 2015-2016 [16 in 2013-2014 + 15 in 2015-2016], the Direct
Recruitees cannot claim any seniority over these Promotees also.
278. There can be no doubt as far as Appellant (Promotees) possessed
the requisite qualifications in the 1st Table to Rule 4(a) of the Tamil Nadu
State Subordinate Service Rules as otherwise, they would not have been
promoted as ‘Assistants’ between Panel Years 2012-2016.
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279. It is also unlikely that the Private Respondents (Writ
Petitioners/Direct Recruits) would have been cleared (i)Registration Tests;
(ii)Account Test for Subordinate Officers, Part-I; (iii)Tamil Nadu
Government Office Manual Testprior to the declaration of their probation
on 18.03.2016 to have their name included in the Annual List and the
‘Seniority List’ that was prepared earlier on 01.04.2016 and was published
issued vide Letter/Proceeding dated 07.06.2016.
280. Similarly, in the impugned order, the Writ Court has also not
discussed in detail as to whether Private Respondents 1 to 10 and other
Private Respondents who were subsequently impleaded in one of the Writ
Appeal had requisite qualification as per the rules as it stood at the time of
issuance of Recruitment Notification No. 258 dated 30.12.2010 barring the
one stipulated in G.O.Ms.No. 47, Commercial Taxes and Registration
Department dated 09.04.2010 or the above additional qualification
prescribed vide Notification No. 258 dated 30.12.2010.
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281. The appointment of the Direct Recruitees on 18.12.2012 cannot
be confused with claim for their seniority in the cadre for promotion to the
next higher post of ‘Sub-Registrar, II Grade’ under the Tamil Nadu
Registration Subordinate Service Rules in proportion to the allocation of
320 vacancies that was proposed in G.O.Ms.No. 47, Commercial Taxes
and Registration Department dated 09.04.2010 for Direct Recruitment
and acted upon with the issuance of G.O.(D).No. 183, Commercial Taxes
and Registration Department dated 31.05.2010 and Recruitment
Notification No. 258 dated 30.10.2010.
282. When the 127 Promotees (9 of whom are the Appellants here)
and others who were recruited as ‘Junior Assistants’ under Rule 10(a)(i)(1)
of the Tamil Nadu State Subordinate Service Rules in the Tamil Nadu
Ministerial Service were subsequently promoted to the post of ‘Assistants’
after their probation was declared as ‘Junior Assistants’ belatedly both
before and after the appointment of the Direct Recruitees were appointed to
the post of ‘Assistants’ directly on 18.12.2012/23.12.2012, the inter se
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seniority between the ‘Promotees’ and ‘Direct Recruits’ at best could have
been reconciled for the purpose of promotion to the post of ‘Sub-Registrar,
II Grade’ by the Registration Department under Section 27 of Vol III – Tamil
Nadu Service Manual viz., in terms of the Tamil Nadu Registration
Subordinate Service and in terms of Section 40 of the Tamil Nadu
Government Servants (Conditions of Service) Act, 2016, [formerly, Rule
35(aa) of the Tamil Nadu State Subordinate Service Rules].
283. Further, as per Annexure IX-C read with Rule 38 of the Tamil
Nadu Ministerial Service Rules inter se seniority between the inter-se-
seniority between the directly recruited Assistants and the Assistants
appointed by promotion shall be as per the provisions laid down in Rule
35(aa) of the General Rules for the Tamil Nadu State and Subordinate
Services where the recruitments were by normal method of recruitment.
284. It cannot be said these Appellants/‘Promotees’ were to compete
only against the balance 320 vacancies in the post of ‘Assistant’ that were
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meant to be filled by way of promotion. It cannot be said that they cannot
claim seniority over the Private Respondents/‘Direct Recruitees’, as they are
separate and different class and belong to a different category as their
method of recruitment was different from that of the ‘Direct Recruitees’.
285. This distortion has to be reconciled in terms of the decision of
the Full Bench of the Hon’ble Supreme Court in Singla case (cited supra)
which affirmed the view in Patwardhan case (cited supra) and was later
followed in Rudra Kumar Sain case. I have also not seen any contra view
of the Hon’ble Supreme Court.
286. Even if the Direct Recruitees were to be held senior and their
names were to be included in the Additional List for the purpose of Rule
13A of the Tamil Nadu Ministerial Service Rules and in terms of Rule
35(aa) of the Tamil Nadu State and Subordinate Service Rules/Section 40 of
the 2016 Act, they cannot be promoted unless they had acquired the
necessary qualification viz., (i) Registration Tests; (ii)Account Test for
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Subordinate Officers, Part-I; (iii)Tamil Nadu Government Office
Manual Test before the Promotees. Till they acquire the aforesaid
qualification, their name cannot be included in the aforesaid List.
287. These aspects ought to have been considered by the Writ Court
while passing the Impugned Order. Instead, the Writ Court has merely
recorded few submissions on behalf of the ‘Promotees’, ‘Direct Recruitees’
and the Official Respondents and few decisions of the Hon’ble Supreme
Court to arrive at a totally erroneous conclusion.
288. That apart, the appointing authority under the aforesaid Rules as
far as the Registration Department is concerned is the Inspector General of
Registration for both ‘Assistants’ and ‘Junior Assistants’ for preparing the
‘Seniority List’ for the purpose of promotion.
289. It would also include preparation of a Seniority List under Rule
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13A of the Tamil Nadu Ministerial Service Rules for promotion of
‘Assistants’ to the post of ‘Sub-Registrar, II Grade’ in the Tamil Nadu
Registration Subordinate Service Rules who had requisite qualification
prescribed by the amendment to the Tamil Nadu Ministerial Rules made
vide G.O. Ms. No. 56, Personnel and Administrative Reforms (B)
Department dated 17.04.2012 with retrospective effect from 09.04.2010.
290. The above qualifications of Departmental Tests could have been
acquired by Direct Recruitees only after joining the services. The
amendment to the aforesaid Rules by the G.O. Ms. No. 56, Personnel and
Administrative Reforms (B) Department dated 17.04.2012 clearly states
the Direct Recruitees should have cleared the Departmental Tests by before
their probation period.
291. The ‘Promotees’ who were promoted to the post of ‘Assistants’
in the years between 2013 and 2016 under the provisions of the Tamil Nadu
Ministerial Service Rules have to be considered senior both on facts and on
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law to the Private Respondents (Writ Petitioners/Direct Recruits) in
accordance to the Hon’ble Supreme Court in the Parwardan case(cited
supra), the Singla case(cited supra) and Rudra Kumar Sain case (cited
supra).
SUMMARY OF THE DECISION:-
292. In view of the above discussion, the seniority of the ‘Promotees’
who were appointed to the post of ‘Assistants’ by way of
Transfer/Promotion in the year 2012 on 24.11.2012 cannot be disturbed.
293. Similarly, the seniority of the Promotees who were appointed to
the post of ‘Assistants’ by way of Transfer/Promotion in the years 2013,
2014, 2015 and 2016 cannot be disturbed. They are also entitled to be
treated as seniors to the Private Respondents (Writ Petitioners/Direct
Recruitees).
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294. The delay in declaring the probation of Promotees as ‘Junior
Assistants’ was not on the account of their fault. Therefore, it cannot be to
their disadvantage.
295. The ‘Promotees’ who are here in these Writ Appeals in
representative capacity and were appointed to the post of ‘Assistants’ by
way of Promotion on 24.11.2012 both on facts and on a strict application of
Section 40(2) of the Tamil Nadu Government Servants (Conditions of
Service) Act, 2016 [formerly 35(aa) Tamil Nadu State Subordinate Service
Rules] seniors to the Private Respondents (Writ Petitioners/Direct Recruits).
296. Though, Private Respondents (Direct Recruitees) were appointed
to the post of ‘Assistants’ directly on 18.12.2012 and 23.12.2012 pursuant to
the aforesaid G.O.Ms.No. 47, Commercial Taxes and Registration
Department dated 09.04.2010, G.O.(D).No. 183, Commercial Taxes and
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Registration Department dated 31.05.2010 and Recruitment Notification
No. 258 dated 30.10.2010. They can claim for seniority in promotion only
from the date when they cleared their Department Tests and possessed at
best, the requisite qualification for being promoted as ‘Sub-Registrar, II
Grade’.
297. Though, the date of seniority of Direct Recruitees for promotion
to the post of ‘Sub-Registrar, II Grade’ from the post of ‘Assistants’ can be
reckoned from the date they were borne into the cadre, they are eligible for
promotion only after acquiring the requisite qualification for the post of
‘Assistants’. The Promotees who had acquired the requisite qualification for
the post of ‘Assistants’ well ahead of the Direct Recruitees cannot be
deprived of promotion by edging them out of the Seniority List. Rule 35(aa)
of the Tamil Nadu State and Subordinate Service Rules has to be read
harmoniously with Rule 13A of the Tamil Nadu Ministerial Service Rules.
298. Since I have concluded that the recruitment of the Private
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Respondents (Writ Petitioners/Direct Recruits) by way of Direct
Recruitment in terms of G.O.Ms.No. 47, Commercial Taxes and
Registration Department dated 09.04.2010, G.O.(D).No. 183,
Commercial Taxes and Registration Department dated 31.05.2010 and
Recruitment Notification No. 258 dated 30.10.2010 is ‘normal method’ of
recruitment (only because of the intervention of G.O.MS.No.56, Personnel
and Administrative Reforms (B) Deparmtnet dated 17.04.2012) as per
the above stated provisions, the inter-se seniority has to be determined with
reference to Section 40(2) of the aforesaid Act [formerly, 35(aa) of the
aforesaid Rules], provided they had the requisite qualification.
299. Having traced out the entire history with regard to the
appointment of the ‘Promotees’ and ‘Direct Recruitees’ to the post of
‘Assistants’ in the Respondent Department and the factual background of
the case and having considered the service jurisprudence and decision of the
Writ Court in the above Writ Petition and particularly the decision of the
Hon’ble Supreme Court referred hereto, I am of the view that the Impugned
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Order dated 03.03.2022 of the Writ Court suffers from several infirmities
making it susceptible to a valid challenge in these Writ Appeals.
300. Therefore, the Impugned Order of the Writ Court in our view is
unsustainable and liable to be interfered with. Further, the
Appellants/Private Respondents, as also the other ‘Promotees’ would have
cleared the examinations as is contemplated in Rule 4 of the Tamil Nadu
Registration Subordinate Service Rules while serving as ‘Junior Assistants’.
While, the Private Respondents (Writ Petitioners/Direct Recruits) should
have completed / qualified themselves in these tests before their names
could have been included in the ‘Seniority List’ for the purpose of Section
2(c) read with Section 7 of the Tamil Nadu Government Servants
(Conditions of Service) Act, 2016, formerly, Rule 4 of Part II of the Tamil
Nadu State Subordinate Service Rules.
301. In the result, the Impugned Order of the Writ Court is set aside
and the Writ Appeals are allowed.
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[C.S.N.,
J.]
29.4.2025
jas
Neutral Citation : Yes / No
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To:
1.The Secretary,
The Commercial Taxes and
Registration Department,
Fort St.George, Chennai – 600 009.
2.The Inspector General of Registration,
O/o. The Inspector General of Registration,
No.100 Santhome High Road,
Chennai – 600 028.
S.S.SUNDAR, J.
and
C.SARAVANAN, J.
jas
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W.A.Nos.2308 & 1027 of 2022
29.4.2025
W.A.Nos.2308 and 1027 of 2022
S.S. SUNDAR, J.
and
C. SARAVANAN, J.
[Order of the Court was made by S.S. SUNDAR, J.]
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In view of the dissenting judgments, the matter is directed to be
placed before the Hon’ble Chief Justice for appropriate orders.
(S.S.S.R., J.) (C.S.N., J.)
29.04.2025
mkn
S.S. SUNDAR, J.
and
C. SARAVANAN, J.
mkn
229
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/06/2025 08:36:11 pm )
WA.Nos.1027 & 2308/2022
W.A.Nos.2308 and 1027 of 2022
29.04.2025
230
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/06/2025 08:36:11 pm )