G.Kathiresan v. The District Collector (WP 2425/2024)

Court: High Court of Madras
Decided: 30 July 2024
Bench: G.K. Ilanthiraiyanauthor
Case no.: WP 2425/2024

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Judgment

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.07.2024 CORAM: THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN W.P.Nos.2425, 2426 & 2431 of 2024 and WMP.Nos.2636, 2640, 2639, 2641, 2646, 2649, 21865, 21863, 21870, 21864, 21860, 16557, 16555, 16553, 22350, 21869, 22355 & 22352 of 2024 WP.No.2425 of 2024 G.Kathiresan ... Petitioner Vs.

1.The District Collector, Kanchipuram District, Kanchipuram 631 501

2.The District Collector, Chengalpattu District, Chengalpattu 603 001

3.V.Udhayakumar

4.C.Balakrishnan

5.A.Periyanayagamary

6.A.Nagapriya

7.Kanimozhi

8.Vijayalakshmi (respondents 3 to 8 impleaded as per order dated 25.04.2024 in WMP.No.10914 of 2024 in WP.No.2425 of 2024)

... Respondents PRAYER: Writ Petition is filed under Article 226 of Constitution of India praying to issue Writ of Certiorarified Mandamus calling for the records from the 2nd respondent relating to the order of combined seniority list of Assistants bearing Na.Ka.No.6901/ 2023/ PA3 dated 30.11.2023 and the order of seniority of Assistants for Chengalpattu district bearing Na.Ka.No.6901/ 2023/ PA3 dated 19.01.2024 following the order of the 1st respondent bearing Na.Ka.No.976150/2023/PA3-13 dated

12.10.2023 and quash the same and consequently direct the 2nd respondent to follow the order of seniority of Assistant bearing Na.Ka.No.293/2023/PA3 dated 30.01.2023 for the Chengalpattu District for the years 2020-2023 made by him placing the petitioner who joined as Assistant by promotion on 13.02.2017 above the direct recruit Assistants who joined as Assistants on 17.02.2017. WP.No.2426 of 2024 K.Sivakumar ... Petitioner Vs.

1.The District Collector, Kanchipuram District, Kanchipuram 631 501

2.The District Collector, Chengalpattu District, Chengalpattu 603 001

3.V.Udhayakumar

4.C.Balakrishnan

5.A.Periyanayagamary

6.A.Nagapriya

7.Kanimozhi

8.Vijayalakshmi (respondents 3 to 8 impleaded as per order dated 25.04.2024 in WMP.No.10928 of 2024 in WP.No.2426 of 2024)

1.The District Collector, Kanchipuram District, Kanchipuram 631 501

2.The District Collector, Chengalpattu District, Chengalpattu 603 001

3.V.Udhayakumar

4.C.Balakrishnan

5.A.Periyanayagamary

6.A.Nagapriya

7.Kanimozhi

8.Vijayalakshmi (respondents 3 to 8 impleaded as per order dated 25.04.2024 in WMP.No.10934 of 2024 in WP.No.2431 of 2024)

... Respondents PRAYER: Writ Petition is filed under Article 226 of Constitution of India praying to issue Writ of Certiorarified Mandamus calling for the records from the 1st respondent relating to the order of combined seniority list of Assistants bearing Na.Ka.No.976150/2023/PA3-13 dated 12.10.2023 followed by the second respondent by his order bearing Na.Ka.No.6901/2023/PA3, dated 30.11.2023 & 19.01.2024 and consequently direct the respondents to prepare separate seniority lists of Assistants for the Kancheepuram and Chengalpattu Districts placing the petitioner who was promoted on 13.02.2017 as Assistant above the direct recruit Assistants who joined as Assistant on 17.02.2017.

For Petitioner : Mr.S.Vijaya Kumar, in all WP's Senior Counsel for Mr.A.Ayyathurai For Respondents in all WP's For R1 & 2 : Mr.R.Neelakandan, Additional Advocate General Assisted by Mr.G.Velu, Additional Government Pleader For R3 to 8 : Mr.C.Vigneswaran Assisted by Mr.P.Vasanthakumar COMMON ORDER These writ petitions have been filed challenging the orders passed by the first respondent dated 12.10.2023 and the second respondent dated 30.11.2023 thereby issued combined seniority list of Assistants and the order dated 19.01.2024 passed by the second respondent thereby issued order of seniority of Assistants following the order passed by the first respondent dated 12.10.2023.

¶2The petitioners were selected to the post of Junior Assistant in the Group IV examination held in the month of August 2013 through Tamilnadu Public Service Commission. Thereafter, they were appointed on 27.06.2014 as Junior Assistant. Thereafter, they were sent to Bhavani Sagar for basic administrative training from 07.10.2015 to 19.11.2015. While pending the probationery period, they were promoted to the post of Assistant on 13.02.2017 and they had joined on 15.02.2017 in the vacancy then existed as per the vacancies in the posts of Assistant filled up by promotion and also by direct recruitment. Thereafter, the petitioners were promoted to the post of Deputy Block Development Officer on 13.06.2023. While being so, the first respondent released combined seniority list of Assistants on 01.01.2018 for the Kancheepuram and Chengalpet Districts in which the petitioners were placed above the direct recruitment Assistants i.e. respondents 3 to 8. After bifurcation of the Kancheepuram district into two districts, i.e. Kancheepuram and Chengalpet, the first respondent prepared combined seniority list of Assistants, in which also the petitioners were placed above the direct recruitees i.e. respondents 3 to 8 herein.

2.1 In the year 2023, the second respondent issued seniority list of Assistants, in which also the petitioners were placed above the direct recruitees. While being so, the first respondent once again prepared combined seniority list of Assistants on 12.10.2023 for the year 2017-2020, in which the direct recruit Assistants who had joined service after the petitioners have been placed above them. The second respondent also followed the same and passed order of combined seniority list of Assistants on 30.11.2023. Therefore, the petitioners submitted representation requesting to revoke the order of seniority dated

30.11.2023 based on the seniority list dated 12.10.2023.

¶3Mr.S.Vijaya Kumar, the learned Senior Counsel appearing for the petitioners would submit that the petitioners were directly recruited to the post of Junior Assistant and were appointed on

27.06.2014. After their Bhavanisagar Training, they were promoted to the post of Assistant on 13.02.2017. After their joining to the post of Assistant, respondents 3 to 8 were directly recruited to the post of Assistants and they had joined in the post of Assistants on 16.02.2017 i.e. one day later than the petitioners. However, by the impugned seniority list, respondents 3 to 8 were placed above the petitioners. It is contrary and violative of Rule 35 (a)(a) of the General Rules for Tamilnadu State and Subordinate Service Rules. He further submitted that Section 47(5) of the Tamilnadu Government Servants (Conditions of Service) Act, 2016 says that a person promoted under sub-section (1), (2) or (4) 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. Accordingly, the Director of Rural Development and Panchayat Raj, Chennai clarified that the seniority list to be prepared on the basis of their date of appointment as Assistant.

3.1 He further submitted that the petitioners were originally appointed as Junior Assistant and subsequently promoted to the post of Assistants. Respondents 3 to 8 were directly recruited to the post of Assistants and they had joined after the petitioners in the post of Assistant. As directed by the Hon'ble Supreme Court of India, on merit basis, seniority list to be revised. Therefore, the seniority list on merit basis to be prepared and accordingly those persons were recruited directly to the post of Assistant and seniority list to be prepared as per their merit. Therefore, the merit of respondents 3 to 8 cannot be compared with the petitioners. The petitioners were recruited to the post of Junior Assistant and as per their merit, their seniority list has been fixed in the post of Junior Assistant. Thereafter, by way of promotion to the post of Assistant, though they were promoted to the post of Assistant without completing their probationery period, it was clarified by the Director of Rural Development and Panchayat Raj as per Section 47(5) and Section 40(2) of the Tamilnadu Government Servants (Conditions of Service) Act, 2016.

¶4The

second

respondent

filed

counter

and Mr.R.Neelakandan, the learned Additional Advocate General appearing for respondents 1 & 2 submitted that the petitioners did not complete their probationery period as on the date of their promotion to the post of Assistant i.e. 13.02.2017. However, due to vacancy, they were promoted to the post of Assistant on temporary basis. They had completed their probation only in the month of July i.e. after appointment of respondents 3 to 8 by direct recruitment as Assistants. He also relied upon the provisions under Section 47(5) of the Tamilnadu Government Servants (Conditions of Service) Act, 2016 which says that a person promoted temporarily shall not be regarded as probationer in the higher category and shall be liable to be terminated by the appointing authority at any time without notice and without any reason being assigned. He further relied upon the provisions under Section 47(6)(i) of Tamilnadu Government Servants (Conditions of Service) Act, 2016 which says that a person promoted temporarily shall commence his probation in such category either from the date of his temporary promotion or from such subsequent date as the appointing authority may determine, provided that on the date so determined, the person possesses all the qualifications prescribed for promotion. Therefore, the promotion of the petitioners to the post of Assistant was not regularised in the regular panel.

4.1 He further submitted that the cut off date for the panel of every year is March 15th. As far as the petitioners are concerned, they had completed their respective probationery period only in the month of July 2016. They were not eligible to be empanelled for the year 2016-2017. After completion of their probation, they were eligible to be empanelled of the year 2017-2018. However, they were promoted temporarily on 13.02.2017 in order to meet the exigencies. Therefore, the temporary promotion does not confer any right to the petitioners to fix their seniority in the cadre of Assistant from the date of their joining as Assistant. In the meantime, respondents 3 to 8 were recruited directly to the post of Assistant on 16.02.2017 and they had joined on 16.02.2017. Therefore, they were eligible to be empanelled of the year 2016-2017 to the post of Assistants.

4.2 He further submitted that the revision of seniority on merit basis in the cadre of Assistant was done by the second respondent by proceedings dated 19.01.2024. It is not affecting the petitioners as on June 2024 by way of reversion from the cadre of Deputy Block Development Officer to the cadre of Assistant in the bifurcated District of Chengalpet. He further submitted that after the seniority list, the petitioners made objections by way of appeal on 13.12.2023 and the same was rejected by an order dated 03.02.2024 by the second respondent. In support of his contention, he relied upon the judgment of the Madurai Bench of this Court rendered WP(MD).Nos.13910 & 11875 of 2014 dated 02.09.2016, in which this Court held that a person who is appointed temporarily to discharge the functions in a particular post without recourse to the recruitemnt rules, cannot be said to be in service till such time his appointment is regularised; or in other words, it is only from the date on which his services are regularised such appointee can count his seniority in the cadre. Therefore, the temporary promotee would not be entitled to count their temporary service for the purpose of seniority.

¶5Mr.C.Vigneswaran, the learned counsel appearing for respondents 3 to 8 submitted that though the petitioners were promoted to the post of Assistants and they joined on 15.02.2017, respondents 3 to 8 were selected even prior to their promotion and they joined on

16.02.2017. Though the petitioners were promoted to the post of Assistant on 13.02.2017, they had completed their probationery period only in the month of July 2016. Whereas the cut off date for empanelling them to be included in the panel of every year is 15th March. Therefore, without even completion of their probation, they were included in the panel of the year 2016-2017 and promoted to the post of Assistant on

13.02.2017. Therefore, considering the above, the second respondent rightly revised the seniority list and placed respondents 3 to 8 above the petitioners.

¶6Heard the learned counsel appearing on either side and perused all the materials placed before this Court.

¶7In the light of the submissions of the learned counsel appearing on either side and their pleadings, the following points arose for consideration:

(i) Whether the petitioners' promotion to the post of Assistants even before completion of their probationery period in the post of Junior Assistant is valid?

(ii) Whether the petitioners can be compared with respondents 3 to 8 on merit basis for revision of seniority list as directed by the Hon'ble Supreme Court of India?

¶8Admittedly the petitioners were recruited to the post of Junior Assistant and they were appointed as Junior Assistant on

27.06.2014. Thereafter, they were promoted to the post of Assistant on

13.02.2017 under Rule 39(a)(i) of Tamilnadu State and Subordinate Services Rules, which is now Section 47 of Tamilnadu Government Servants (Conditions of Service) Act, 2016. It is relevant to extract the provisions under Section 47 (1), (2), (3), (4) & (5) of Tamilnadu Government Servants (Conditions of Service) Act, 2016 hereunder: 47 – Temporary Promotion

(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 higher category in a service or class by promotion from lower category and there would be undue delay in making such promotion in accordance with the provisions of the Act, the appointing authority may temporarily promote a person, who possesses the qualifications prescribed for the post, otherwise than in accordance with the provisions of this Act.

(2) Where it is necessary to fill a short vacancy in a post borne on the cadre of a higher category in service or class by promotion from lower category and the appointment of the person who is entitled to such promotion under the provisions of the Act would involve excessive expenditure on travelling allowance or exceptional administrative inconvenience, the appointing authority may promote any other person who possesses the qualification, if any, prescribed for the higher category.

(3) A person temporarily promoted under sub-section

(1) shall be replaced as soon as possible by the member of the service, who is entitled to promotion under the Act.

(4) Where it is necessary to promote an officer against whom an enquiry into allegations of corruption or misconduct is pending, but no charge sheet has been filed in the criminal case or where no charge under sub-rule (b) of rule 17 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules have been framed or no proceedings before the Tribunal for Disciplinary Proceedings is pending, the appointing authority may promote him temporarily pending enquiry into the allegations against him.

(5) A person promoted under sub-section (1), (2) or (4) 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-section (1), (2) or (4) shall be liable to be terminated by the appointing authority at any time without notice and without any reason being assigned.

¶9Accordingly, the petitioners had joined in the post of Assistant on 15.02.2017. However, their probationery period to be completed in the month of July 2016. Therefore, they were empanelled in the panel of Junior Assistant of the year 2016-2017 for promotion to the post of Assistant even before completion of their probationery period. For empanelling for promotion, the cut off date is 15th of March of every year. After completion of their probation, they should be empanelled for promotion only in the year 2017-2018. In the meanwhile, respondents 3 to 8 were recruited directly to the post of Assistants and they had joined on 16.02.2017 i.e. one day later than the petitioners. However, the Director of Rural Development and Panchayat Raj by its communication dated 30.04.2018 issued clarification with regards to seniority of a person who is promoted to the post of Assistant temporarily as follows: 2/ ghh;itapy; fhzg;gLk; fojj;jpy;. jkpH;ehL muRg; gzpahsh; (gzp epge;jidfs;) rl;lk; 2016. gphpt[ 47(5)d;go jw;fhypf gjtp cah;t[ tH';fg;gLk; neh;t[fspy;. jw;fhypf gjtp cah;t[ bgw;w cjtpahsh;fspd; KJepiyia Kiwg;gLj;jg;gl;l njh;e;njhh; gl;oaypy; nrh;f;fg;gl;L mjdog;gilapy; Kjepiy eph;zak; bra;ag;gl ntz;Lk; vdt[k;. jkpH;ehL muRg; gzpahsh; (gzp epge;jidfs;) W.P.Nos.2425,o2426o&o2431oofo2024 rll; k; 2016. gphpt[ 40(2)?dg; o neuo epakdk; kw;Wk; gjtp caht; pd; K:yk; gzpakh;jj; gg; ll; cjtpahshf; s; ,ilna Kjepiy eph;zak; braa; . Cjtpahshf; shf gzpapy; epakdk; ehspid (Date o of o Appointment) bfhz;L KJepiy braa; gg; l ntz;Lk vdtk[ ; bjhptpj;Jss; J/ mjdogg; ilapy; Cuf tshr; ;rp kw;Wk; Cuhl;rp ,af;FeUfF; 22/12/2017 ehspll; muRf; fojjj; pd; K:yk; mspjj; bjspt[iuapd; mogg; ilapy; gzpapy; epakd ehs; (DateeofeAppointment) vdg; J jkpHe; hL muRg; gzpahsh; njht; hizak; K:yk; xJff; PL glo; ay; (Allotment e List) btspaplgg; Lk; ehspid bfhz;lh my;yJ xJff; PL glo; aiy mogg; ilahff; bfhz;l rk;kej; gg; ll; khtll; jj; pd; gzp epakd mYtyuhy; (Appointment e Authority) btspaplgg; Lk; gzp epakd ehspid bfhz;lh vdg; J Fwpj;J bjspt[iu tH'F; khW murplk; nfhugg; ll; J/ 3/ jkpH;ehL muRg; gzpahsh; njht; hizajj; pd; Ky: k; btspaplgg; Lk; xJff; Pl;L glo; aypy; Fwpgg; pl;Ls;s KJepiyia khw;whky; jdpahf; s; gzpapy; nrUk; ehis mogg; ilahff; bfhz;L jdpahf; SfF; KJepiy eph;zapff; gg; l ntz;Lk; vdj; bjhptpj;Jf; bfhs;sg;ggzpf;fl;Ls;nsd;/

¶10It was further clarified by the Director of Rural Development and Panchayat Raj by its communication dated 01.06.2018 in respect of the person who is promoted temporarily to the post of Assistant with regards to fixation of seniority as follows: ghh;it 2?y; fhQqk; muR fojj;jpy; jkpH;ehL muRg; gzpahsh; (gzp epge;jidfs;) rl;lk; 2016. gphpt[ 47(5)?d;go jw;fhypf gjtp cah;t[ tH';fg;gLk; neh;t[fspy;. jw;fhypf gjtp cah;t[ bgw;w cjtpahsh;fspd;

Kjepiyia

Kiwg;gLj;jg;gl;l njh;e;njhh; gl;oaypy; nrh;f;fg;gl;L. mjdog;gilapy;. KJepiy eph;zak; bra;ag;gl ntz;Lk; vdt[k;. jkpH;ehL muRg; gzpahsh;fs; (gzp epge;jidfs;) rl;lk; 2016. gphpt[ 40(2)d;go neuo epakdk; kw;Wk; gjtp cah;tpd; K:yk; gzpakh;j;jg;gl;l cjtpahsh;fs; ,ilna Kjepiy eph;zak; bra;a cjtpahsh;fshf gzpapy; epakdk; ehspid (Date of Appointment) bfhz;L KJepiy eph;zak; bra;ag;gl ntz;Lk; vd bjhptpf;fg;gl;lJ/ ghh;it 3?y; fhQqk; ,t;tpaf;ff fojj;jpy; gzpapy; epakd ehs; (Date of Appointment) vd;gJ jkpH;ehL muRg; gzpahsh; njh;thizak; K:yk; xJf;fPL gl;oay; (Allotment List) btspaplg;gLk; ehspid bfhz;lh my;yJ xJf;fPL gl;oaiy mog;gilahff; bfhz;L rk;ke;jg;gl;l khtl;lj;jpd; gzp epakd mYtyuhy; (Appointment Authority) btspaplg;gLk; gzp epakd ehspid bfhz;lh vd;gJ Fwpj;J bjspt[iu tH';FkhW murplk; nfhug;gl;lJ/ jw;nghJ ghh;it 4?y; fhQqk; muR fojj;jpy; jkpH;ehL muRg; gzpahsh; njh;thizaj;jpd; K:yk; btspaplg;gLk; xJf;fPl;L gl;oaypy; Fwpg;gplg;gl;Ls;s KJepiyia khw;whky; jdpah;fs; gzpapy; nrUk; ehis mog;gilahff; bfhz;L jdpah;fSf;F KJepiy eph;zapf;fg;gl ntz;Lk; vd bjhptpf;fg;gl;lJ/

¶11Accordingly, the first respondent issued combined seniority list of Assistants on 01.01.2018 and the petitioners were placed above the respondents 3 to 8 herein by fixing seniority. In fact, after completion of their six years of service as Assistant, the petitioners were promoted to the post of Deputy Block Development Officer. Therefore, the seniority to be determined with reference to the date on which the petitioners were appointed in the post of Assistant. Admittedly, the petitioners joined as Assistant on 15.02.2017 and the respondents 3 to 8 joined in the post of Assistant on 16.02.2017. The respondents did not even challenge the seniority list dated 01.01.2018. Further the date of appointment and the date of joining as Assistant to be considered for fixing seniority in the post of Assistant. It is relevant to extract the provisions under Section 40(2) of the Tamilnadu Government Servants (Conditions of Service) Act, 2016 hereunder: 40 – Fixation of Seniority

(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 services, class, category or grade: Provided that where the junior appointed by a particular method of recruitment happens to be appointed to a service, class, category or grade, earlier than the senior appointed by the same method of recruitment, the senior shall be deemed to have been appointed to the service, class, category or grade on the same day on which the junior was so appointed: Provided further that the benefit of the above proviso shall be available to the senior only for the purpose of fixing inter-se-seniority: Provided also that where persons appointed by more than one method of recruitment are appointed or deemed to have been appointed to the service, class, category or grade on the same day, their inter-se-seniority shall be decided with reference to their age.

¶12Accordingly, the first point is answered. Further, the petitioners were recruited directly to the post of Junior Assistant in the year 2014. Whereas respondents 3 to 8 were recruited to the post of Assistant directly in the year 2017. As directed by the Hon'ble Supreme Court of India, the seniority of a person to be revised on the basis of merit at the time of the recruitment. But in the case on hand, the petitioners were recruited to the post of Junior Assistant and the respondents 3 to 8 were recrutied to the post of Assistant. The petitioners were promoted to the post of Assistants and they had joined in the said post on 15.02.2017, whereas respondents 3 to 8 had joined in the post of Assistant only on

16.02.2017.

¶13As directed by the Hon'ble Supreme Court of India only on merit basis, seniority to be revised. It means that for every recruitment to the respective post, the seniority of the recruited persons to be fixed on the basis of their merit in the particular recruitment. The persons who were promoted to the said post cannot be compared with the persons who were directly recruited to the said post. The post of Assistant can be filled by promotion and direct recruitment. The petitioners were promoted to the post of Assistant even before joining of respondents 3 to 8 who were directly recruited to the post of Assistant. Therefore, the seniority of the petitioners cannot be compared with respondents 3 to 8 on merit basis. Further, Mr.R.Neelakandan, the learned Additional Advocate General submitted that after the seniority list which is impugned in this writ petition, the petitioners submitted objections for the seniority list and the same was also rejected by the order dated 03.02.2024 on the ground that the petitioners had completed their probationery period only in the month of July 2016 and as such they are entitled to be empanelled only of the year 2017-2018 and not for the year 2016-2017. Though they were promoted to the post of Assistant, it was only temporary in nature. Accordingly, their seniority was fixed and rejected the objections raised by the petitioners. Therefore, in view of the first point answered by this Court, the rejection order dated 03.02.2014 also cannot be sustained for any purpose.

¶14In view of the above discussion, the orders impunged cannot be sustained and the same are liable to be quashed. Accordingly, the impugned orders passed by the first respondent dated 12.10.2023 and the second respondent dated 30.11.2023 thereby issued combined seniority list of Assistants and the order dated 19.01.2024 passed by the second respondent thereby issued order of seniority of Assistants following the order passed by the first respondent dated 12.10.2023 are quashed. The second respondent is directed to follow the order of seniority of Assistant bearing Na.Ka.No.293/2023/PA3 dated 30.01.2023 of the year 2022-2023 for Chengalpet District and place the petitioners above respondents 3 to 8 within a period of four weeks from the date of receipt of copy of this order.

¶15In the result, all the writ petitions stand allowed. Consequently, connected miscellaneous petitions are closed. There shall be no order as to costs.

30.07.2024 Index: Yes/No Speaking/Non-speaking order lok To

1.The District Collector, Kanchipuram District, Kanchipuram 631 501

2.The District Collector, Chengalpattu District, Chengalpattu 603 001

G.K.ILANTHIRAIYAN, J. lok

30.07.2024

Source: High Court of Madras, through the eCourts High Court services, via the Indian High Court Judgments open dataset by Dattam Labs (CC BY 4.0). Text was extracted from the official PDF and may contain conversion errors. Check the official PDF before relying on it.