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2012 DIGILAW 257 (MAD)

The Secretary to Government of Tamil Nadu, Public (Special-A) Department v. K. Madalaimuthu

2012-01-12

ELIPE DHARMA RAO, M.VENUGOPAL

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Judgment :- ELIPE DHARMA RAO, J. 1. The first respondent herein was a Direct Recruit District Registrar, on his being selected in Grade-I Examination conducted by TNPSC and he joined the service during 1989. Contending that there were anomalies in the fixation of seniority in the cadre of District Registrar, since the State Government reckoned the seniority of promoted District Registrars from the date of their initial temporary appointment and not from the date of their regularisation in the service, the direct recruits have initiated writ proceedings before this Court, which ultimately culminated in their filing Civil Appeal Nos.2791-2793 of 2002 before the Honourable Apex Court and the Honourable Apex Court by the judgment dated 4.7.2006 (K.Madalaimuthu vs. State of Tamil Nadu, (2006) 6 SCC 558), allowed the said Civil Appeals directing the Department to re-fix the seniority of promotees from the date of their regularization, instead of initial appointment. 2. Since the orders of the Honourable Apex Court were not implemented in time, and the Government promoted one Nagasubramanian, junior to the first respondent/applicant as Additional Inspector General, the first respondent/applicant filed Contempt Petition No.208 of 2006 before the Honourable Apex Court. Pending the contempt proceedings, the Department issued orders of promotion, on 19.1.2007, promoting the first respondent/applicant as Additional Inspector General of Registration with retrospective effect from 1998, but the seniority list was not revised, consequent to the orders of the Honourable Supreme Court. The seniority list came to be revised only after filing of subsequent contempt petitions before the Honourable Apex Court, as a result, many officers who were above the first respondent/applicant till such time, became his juniors. 3. During the pendency of the above said writ proceedings and the civil appeals and the contempt proceedings, the Annual Confidential Reports of the first respondent/applicant, between 1998 and 2008 came to be recorded by the officers, who ultimately became his juniors in the revised seniority list of April, 2008. 4. In the meantime, five vacancies arose in the year 2007 for promotion to the IAS, but the name of the first respondent/applicant was not considered, since the seniority list was not revised at that point of time. 4. In the meantime, five vacancies arose in the year 2007 for promotion to the IAS, but the name of the first respondent/applicant was not considered, since the seniority list was not revised at that point of time. Thereafter, the State Government proposed to fill up two vacancies in the year 2009 by selection from among the non-State Civil Service Officers and the Select Committee, which met on 22.9.2009, short listed ten officers from among 43 officers to be sponsored for interview by the UPSC in terms of the relevant regulations, but the name of the first respondent/applicant was not in the list of the said 43 candidates, on the ground of poor gradings. Aggrieved, the first respondent/applicant had again filed Contempt Application Nos.381-383 of 2009 before the Honourable Supreme Court. Though the Honourable Apex Court had initially granted stay of selection of the IAS, subsequently, the said contempt applications were disposed of on 18.1.2010, by recording the undertaking given by the learned Attorney General to the effect that the name of the first respondent/applicant would be considered for selection for IAS without taking into consideration the ACRs for the period from 22.5.2006 to 31.3.2008. In spite of such an undertaking given on behalf of the Department by the learned Attorney General, the name of the first respondent/applicant was not considered for the two vacancies of the year 2009 on the ground of poor gradings. Hence, the first respondent/applicant filed O.A.No.954 of 2010 before the Tribunal, praying to direct the respondents therein to consider his name for appointment to IAS, by selection in terms of the IAS (Appointment by Selection) Regulations 1997 against the two vacancies notified for the year 2009. 5. Since the Tribunal has allowed the said Original Application, the respondents therein/the authorities have filed W.P.No.29573 of 2010 before this Court and a Division Bench of this Court, headed by and speaking through one of us (Elipe Dharma Rao, J.), by the order dated 22.2.2011 has disposed of the said writ petition with the following observations and findings: "In support of their contention that the first respondent/applicant got less gradings when compared to Tmt.Sudha Malliah, which resulted in non-consideration of the name of the applicant for the two vacancies arose in the year 2009, the writ petitioners have submitted before us the original files, which has substantiated the above contentions of the writ petitioners. Therefore, we are unable to upheld the direction issued by the Tribunal to consider the name of the first respondent/applicant for the two vacancies arose in the year 2009. (8.) On a complete analysis of the entire materials placed on record, we have no hesitation to hold that the delay caused on the part of the writ petitioners in implementing the directions of the Honourable Apex Court, in revising the seniority list, has caused much prejudice to the first respondent/applicant. The Honourable Apex Court has allowed the Civil Appeal Nos.2791-2793 of 2002 on 4.7.2006, but the first respondent/applicant was given promotion as Additional Inspector General of Registration, with retrospective effect from 1998 only on 19.1.2007, that too after filing of contempt applications by the applicant. But, still, the seniority list was kept unrevised till 2008, which obstructed the first respondent/applicant from claiming his name to be considered for the five vacancies that arose in the year 2007 and paved way for the names of some of the juniors of the first respondent/applicant to get included and thus the juniors of the first respondent/applicant got fortuitous opportunity of being called for selection to the IAS, like Mr.R.Shanmugam, who was placed junior to the first respondent/applicant in the re-fixed seniority list and was holding only a junior rank of Deputy Inspector General of Registration. (9.) We have no hesitation to hold that the snail pace attitude exhibited on the part of the writ petitioners in implementing the orders of the highest Court of the land has caused much prejudice to the case of the first respondent/applicant. Had everything been done in time, in our considered view, the first respondent/applicant would have got a chance to get his name included in the relatively large list of 2007 with five vacancies. However, since there is no prayer of the first respondent/applicant to consider his name for the five vacancies of the year 2007, we are unable to go further deep into this aspect of the matter. (10.) Therefore, while setting aside the direction of the Tribunal to conduct DPC for the two vacancies of the year 2009, and further directing the first respondent/applicant to file a comprehensive Original Application before the Tribunal for inclusion of his name for the five vacancies of the year 2007, if he is so advised, we dispose of this writ petition." 6. This order of the Division Bench of this Court has become final, since no appeal has been preferred by any of the parties. Thereupon, the first respondent herein has filed O.A.No.565 of 2011 before the 5th respondent Tribunal, praying to direct the respondents therein to consider and appoint him to the IAS by selection in terms of the IAS (Appointment by Selection) Regulation 1997 against the 5 vacancies notified for the year 2007 in the light of the judgment of this Court in W.P.No.29573 of 2010, dated 22.2.2011 with all consequential and attendant benefits of seniority, pay fixation, arrears etc. 7. The Tribunal, considering the order passed by this Court in W.P.No.29573 of 2010, dated 22.2.2011, has disposed of the said Original Application by the order dated 31.5.2011, with the following directions: "a. There will be a direction to the respondents to consider and appoint the applicant to the IAS by Selection in terms of the IAS (Appointment by Selection) Regulation 1997 against the vacancies notified for the year 2007 in the light of the judgment of the High Court in W.P.29573/2010, dt.22.2.2011 with all consequential and attendant benefits of seniority, pay fixation etc. b. While appointing the applicant in respect of the vacancy of the year 2007, the said appointment should be adjusted in the future vacancy as per the sanctioned strength. c. In the event of selection and appointment of the applicant, the selection of the persons for the year 2007 should not be disturbed except fixation of their seniority with the applicant. d. The above exercise shall be completed within a period of four weeks from the date of receipt of a copy of this order. e. However, there will be no order as to costs." 8. Aggrieved, the respondents 4 to 7 before the Tribunal have come forward to file this writ petition. 9. Heard Mr.Navaneetha Krishnan, learned Advocate General for the writ petitioners an Mr.Vijay Shankar for first respondent/applicant. 10. The main ground of attack to the order passed by the Tribunal by the writ petitioners is that the vacancies for the year 2007 have already been filled up. It is within the knowledge of this Court, when an order has been passed in the earlier round of litigation in W.P.No.29573 of 2010 on 22.2.2011, that the vacancies of the year 2007 would not have been kept pending all these years. It is within the knowledge of this Court, when an order has been passed in the earlier round of litigation in W.P.No.29573 of 2010 on 22.2.2011, that the vacancies of the year 2007 would not have been kept pending all these years. When there is ample material on record to the effect that an illegality has been perpetrated on the first respondent/applicant, presumably for the reason that he is knocking the doors of the legal fora against the illegality or inaction of the concerned authorities, considering the totality of circumstances alone, we have directed the first respondent/applicant to file a comprehensive application before the Tribunal for the vacancies of the year 2007, if he is so advised. The order passed by this Court in W.P.No.29573 of 2010, dated 22.2.2011 has attained finality and now by way of this writ petition, the petitioners, are trying to challenge the said order, as if this Court is ignorant of the procedure contemplated under law for selection of IAS and that it is also ignorant of the fact that the vacancies of the year 2007 have already been filled up. 11. Every time, the applicant/first respondent is being driven from pillar to post by the writ petitioners, presumably since he knocked the doors of judicial fora for relief. We are forced to comment so, since in spite of the order by the Honourable Apex Court, the writ petitioners have exhibited slackness and purposely slowed down the implementation of the order of the Honourable Apex Court, leading to filing of contempt petitions by the first respondent. As has already been observed by us in the order dated 22.2.2011, had everything been done in time, in our considered view, the first respondent/applicant would have got a chance to get his name included in the relatively large list of 2007 with five vacancies. Having already deprived the first respondent of his due, the petitioners have again come forward to file this writ petition, as if the order passed by the Tribunal is illegal, ignoring the fact, it is nothing but an order passed towards implementation of the order already passed by this Court in W.P.No.29573 of 2010, dated 22.2.2011, which was allowed to attain finality by the petitioners. Having allowed the said order of this Court to attain finality, the petitioners are not justified in filing this writ petition, since it would amount to seeking this Court to sit as an appellate authority over and above the order dated 22.2.2011, which is quite impermissible. The Tribunal, while allowing the prayer of the applicant/first respondent, was so cautious in protecting the interest of the persons, who were selected against the 2007 vacancies. Therefore, no prejudice whatsoever would also be caused to such selected candidates. 12. Therefore, holding this writ petition as a vexatious litigation filed by the writ petitioners, to further purchase and prolong the time, in order to deprive the first respondent of his due, particularly when the order of this Court in W.P.No.29573 of 2010, dated 22.2.2011 has attained finality and the writ petitioners are so casual and callous to the orders passed by the Honourable Apex Court in the earlier round of litigation, we confirm the order passed by the Tribunal, dismissing this writ petition. The writ petitioners are directed to comply with the directions of the Tribunal within two weeks from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petition is also dismissed.