JUDGMENT 1. The petitioner in W.P.No.9084 of 2009 and the petitioner in W.P.No.9108 of 2009 joined service as Part time Clerk in the office of Panchayat Union, Sendurai in Ariyalur District on 15.12.1983. 2. G.O.Ms.No.349, P&AR Department dated 12.4.1984 was issued for filling up of 10% vacancies by direct recruitment to the post of Junior Assistants/Rural Welfare Officers Grade II and Cashiers in each unit of Panchayat Development Department, if they have put in regular service for a period of not less than 5 years and also possessed the minimum general educational qualification. 3. The Government issued G.O.Ms.No.208, Rural Development Department dated 20.3.1986 that part time/full time Clerks shall appear for a separate examination to be conducted by the Tamil Nadu Public Service Commission for the purpose of filling up of the vacancies reserved for them in the posts of Junior Assistants/Rural Welfare Officers Grade II and Cashiers. 4. Pursuant to the representation made by various associations of the employees, the Government passed G.O.Ms.No.964, Rural Development Department dated 28.11.1990 that part time/full time Clerks of Village Panchayat who are eligible for the post of Junior Assistants under 10% reservation may be appointed as Junior Assistants/Rural welfare Officers Grade II and Cashiers on the basis of their qualification and seniority without appearing for the said examination to be conducted by the Tamil Nadu Public Service Commission in this regard. 5. Their appointment by transfer to the post of Junior Assistant is depending on the possession of minimum general educational qualification and 5 years regular service in the post held by them. A direction was issued to fill up the vacancies upto 1.4.1990 from the categories of part time/full time Clerks of Village Panchayat as stated above. 6. The said G.O.Ms.No.964 has stated that for filling up the vacancies that arise after 1.4.1990, a Committee should be constituted in each District for preparing a panel recommending the case for selection falling under the 10% reserved categories for the post of Junior Assistant for approval by the Tamil Nadu Public Service Commission (hereinafter called as 'TNPSC'). The District Collector is the Chairman of the Committee and the Personal Assistant to the Collector (Panchayat Development) and Personal Assistant to Collector (Town Panchayat) are the members of the Committee that could prepare the panel. The District Collector is the Chairman of the Committee and the Personal Assistant to the Collector (Panchayat Development) and Personal Assistant to Collector (Town Panchayat) are the members of the Committee that could prepare the panel. The Committee shall send panel every year to the TNPSC before 31st December of every year and the Commission will give its approval before 28th February of the succeeding year. 7. The Committee while recommending the panel for approval to the TNPSC shall take into account the following qualifications of the candidates:- (a) Minimum General Educational qualification or should have passed the General Educational Test conducted by the TNPSC. (b) Minimum five years continuous service. (c) Should have been in the first instances, recruited through Employment Exchange. (d) Suitability for promotion, taking into account the previous conduct, previous punishments, pendency of charges etc., should be considered. (e) Other things being equal, the seniority of the candidates with reference to their date of joining in the feeder category should be strictly observed. 8. The TNPSC approved the panel of the years 1993-94, 1994-95 and 1995-1996 by an order dated 17.12.1998 relating to 10% reservation for the post of Junior Assistant. Pursuant to the aforesaid approval of the panel by the TNPSC, the petitioner in W.P.No.9084 and the petitioner in W.P.No.9108 of 2009 were appointed as Junior Assistant by transfer on 21.1.1999 in Ariyalur District and they joined the service on the next day, i.e., on 22.1.1999. They were thereafter temporarily promoted as Assistant on 29.8.2002 under Rule 39 of the Tamil Nadu State and Subordinate Service Rules. 9. While so, the seniority list of Assistants was published by the third respondent by an order dated 12.3.2009. In the said seniority list, the names of respondent Nos.4 to 12 were shown above the petitioners' names. 10. The petitioners in the first two Writ Petitions have filed the Writ Petitions to quash the impugned seniority list dated 12.3.2009 and has sought for a direction to prepare a fresh seniority list in the cadre of Assistants by placing them in the top of the seniority list based on the length of service rendered by them in the post of Assistants. 11. According to the petitioners, they were temporarily promoted on 29.8.2002 while respondent Nos. 4 to 12 were subsequently promoted on various dates as mentioned in the impugned order. 12. 11. According to the petitioners, they were temporarily promoted on 29.8.2002 while respondent Nos. 4 to 12 were subsequently promoted on various dates as mentioned in the impugned order. 12. As far as the petitioner in W.P.No.9144 of 2009 is concerned, he was directly recruited as Junior Assistant under Rule 10(a)(i) of the Tamil Nadu State and Subordinate Service Rules on 1.4.1996 in Pudukottai District and he was appointed on compassionate grounds. His service was regularised as Junior Assistant on 9.3.2001. By an order dated 26.8.2002, he was declared to have completed the probation period as on 31.12.1999 and his service was regularised from the date of his initial appointment. 13. He was promoted as an Assistant on 11.10.2002. Thereafter, on request transfer, he came to Ariyalur District and joined service as Assistant on 13.2.2004. His grievance is that respondent Nos.4 to 12 were shown above him in the seniority list dated 12.3.2009. In Writ Petition No.9144 of 2009, he has also sought to quash the seniority list and for a consequential direction to the respondents to prepare a fresh list of seniority in the cadre of Assistants by taking into account the service rendered by him and the private respondents in the post of Assistant. 14. According to all the petitioners, the private respondents were appointed directly as Junior Assistant from the post of part time/full time Clerks of Village Panchayat in Ariyalur District under Rule 10(a)(i) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. It is also admitted that the private respondents were appointed much prior to the appointment of the petitioners. 15. But, the crux of the case of the petitioners is that the private respondents were not appointed as per the procedure contemplated in G.O.Ms.No.964 referred to above, i.e., a Committee headed by the District Collector did not send any panel for approval of appointment to the post of Junior Assistant to the TNPSC in the case of private respondents and on the other hand they were directly appointed as Junior Assistant from the post of part time/full time Clerks in the Panchayat under 10% reservation quota made for Junior Assistant from the categories of part time/full time Clerks. Since, their appointment was not regular, it is not correct in placing those respondents above the petitioners. 16. Since, their appointment was not regular, it is not correct in placing those respondents above the petitioners. 16. According to the petitioner in W.P.No.9144 of 2009, though he came to Ariyalur District in 2004 by way of transfer, the private respondents were actually promoted as Assistant subsequent to 2004 and therefore they should be treated as juniors. 17. However, it is admitted by all the petitioners that TNPSC granted approval for appointment of respondents 4 to 12 by the order No.3108/C.T.P2/2003 dated 22.7.2005 retrospectively for the years 1990-91 to 1992-1993. Since the TNPSC granted approval by the order dated 22.7.2005 after the petitioners were promoted as Assistant, it is the case of the petitioners that they should be treated as seniors to the private respondents. 18. The private respondents have not entered appearance. Respondent Nos.1 to 3 have filed common counter affidavit refuting the allegations. 19. The crux of the counter affidavit is that the petitioners were promoted temporarily as Assistant and that due to administrative reasons, the private respondents were not included in the panel of the year to which they belong. It is stated that the petitioner in W.P.No.9084 of 2009 and the petitioner in W.P.No.9108 of 2009 as well as the private respondents did join the service initially as part time/full time Clerks and the private respondents were appointed as Junior Assistant much prior to the date of appointment of the petitioners as Junior Assistant. The appointment of the private respondents were not approved by the TNPSC and the same was approved subsequently. Thereafter, they were included in the panel to which they belong retrospectively. Based on their inclusion in those panels, they are rightly fixed above the petitioners in the seniority list of Assistants. 20. The petitioners have filed reply affidavit refuting the allegations in the counter affidavit. The petitioners have heavily relied upon the proceedings dated 22.7.2005 approving the appointment of the private respondents. Since, according to the petitioners, the appointment of the private respondents as Junior Assistant was approved only in 2005. They cannot claim seniority over the petitioners. 21. Heard both sides. 22. The learned counsel for the petitioners has reiterated the averments made in the affidavit filed in support of the Writ Petition as well as the reply affidavit. Since, according to the petitioners, the appointment of the private respondents as Junior Assistant was approved only in 2005. They cannot claim seniority over the petitioners. 21. Heard both sides. 22. The learned counsel for the petitioners has reiterated the averments made in the affidavit filed in support of the Writ Petition as well as the reply affidavit. He has also relied on two decisions, viz., judgment of the Supreme Court in K.Madalaimuthu and another vs. State of Tamil Nadu and others reported in 2007 (1) SLJ 98 and Division Bench judgment of this Court in P.Perumal vs. A.V.Sureshbabu and others reportedin (2007) 4 MLJ 160 . 23. The learned Additional Government Pleader has submitted that the petitioner in W.P.No.9084 of 2009 and the petitioner in W.P.No.9108 of 2009 were only temporarily promoted as Assistant in 2002 under rule 39 of the Tamil Nadu State and Subordinate Service Rules. Since the service of the private respondents in the post of Junior Assistant was not regularised due to want of approval by the TNPSC, they were not promoted. Later, the same was approved, as admitted by the petitioners, in the proceedings dated 22.7.2005 by the TNPSC, approving the appointment of the private respondents retrospectively for the period from 1990-91 to 1992-93. Hence, the private respondents were included in the panel for promotion to the post of Assistant retrospectively to the period for which they belong. He has taken me through the counter affidavit that was filed in detail in this regard. As the private respondents are seniors, the petitioners cannot have grievance over the same. 24. I have considered the submissions made by the learned counsel on either side. 25. It is not in dispute that the petitioner in W.P.No.9084 of 2009 and the petitioner in W.P.No.9108 of 2009 as well as the private respondents initially joined service as part time/full time Clerks in the Panchayat in Ariyalur District. It is also not in dispute that the private respondents were appointed as Junior Assistant much prior to the appointment of the petitioner in W.P.No.9084 of 2009 and the petitioner in W.P.No.9108 of 2009 as Junior Assistant. 26. The details showing the date of appointment of the petitioners as well as the private respondents as Junior Assistant are given below. 27. 26. The details showing the date of appointment of the petitioners as well as the private respondents as Junior Assistant are given below. 27. It is true that the petitioner in W.P.No.9084 of 2009 and the petitioner in W.P.No.9108 of 2009 were appointed pursuant to approval given by the TNPSC based on the recommendation of the Committee constituted as per G.O.Ms.No.964, Rural Development Department dated 28.11.1990. After the TNPSC approved the appointment of the petitioners for the vacancy relating to the year 1994, by an order 17.12.1998, these petitioners were appointed as Junior Assistant by transfer on 21.1.1999. 28. But, the private respondents were appointed much prior to the appointment of these two petitioners as per the details provided in the aforesaid tabular column. 29.The private respondents were also appointed against 10% reservation meant for the part time/full time Clerks to the post of Junior Assistant, as provided in G.O.Ms.No.349, Rural Development Department dated 12.4.1984. But the official respondents failed to follow G.O.Ms.No.964, Rural Development Department dated 28.11.1990 by sending the panel to TNPSC for approval of their appointment and appointing them thereafter. It is the mistake committed by the official respondents. On the other hand, they were directly appointed as Junior Assistant under 10% reservation quota by the official respondents. The private respondents cannot be penalized for the mistake committed by the official respondents. It is not the case of the petitioners that the private respondents did not have the educational qualification or that the private respondents did not serve the minimum 5 years service. It is also not the case of the petitioners that the private respondents were not recruited through Employment Exchange for the post of part time/full time Clerks in the Panchayat. 30. The following are the qualifications required for empanelment of the part time/full time Clerks for the post of Junior Assistant by transfer:- (a) Minimum General Educational qualification or should have passed the General Educational Test conducted by the TNPSC. (b) Minimum five years continuous service. (c) Should have been in the first instances, recruited through Employment Exchange. (d) Suitability for promotion, taking into account the previous conduct, previous punishments, pendency of charges etc., should be considered. (e) Other things being equal, the seniority of the candidates with reference to their date of joining in the feeder category should be strictly observed. 31. The aforesaid qualifications are prescribed in G.O.Ms.No.964. (d) Suitability for promotion, taking into account the previous conduct, previous punishments, pendency of charges etc., should be considered. (e) Other things being equal, the seniority of the candidates with reference to their date of joining in the feeder category should be strictly observed. 31. The aforesaid qualifications are prescribed in G.O.Ms.No.964. The clause (e) in Paragraph 4 of the G.O.Ms.No.964 states that when other things being equal, the seniority of the candidates with reference to this date of joining in the feeder category should be strictly observed. It is admitted that the private respondents joined the post of part time/full time Clerks in Panchayat much prior to the date of appointment of the petitioners in service. Hence, the petitioners cannot have a grievance over the appointment of the private respondents as Junior Assistant at an earlier point of time. 32. Later, when it was realized that the appointment was not made in terms of G.O.Ms.No.964, as the approval of appointment by the TNPSC was not obtained, the official respondents sought for approval of appointment of the private respondents. Ultimately, the TNPSC approved the appointment of the private respondents by the proceedings in No.3108/CD/P2/2003 dated 22.7.2005. 33. The names of the persons, whose appointment was approved as Junior Assistant retrospectively from the years 1990-91 to 1992-93 as per the letter dated 22.7.2005 passed by the TNPSC, are as follows:- 1. S.R. Datchinamoorthy 2. A. Anbazhagan 3. P. Nallamuthu 4. M. Periyasamy 5. R. Chandrarsekaran 6. A. Periasamy 7. P. Ramachandiran 8. D. Nagarajan 9. V. Poovaragavan 10. S. Thangarajan 11. S.P. Kambarayan 12. G. Sivagurunathan 13. D. Selvaraj 14. S. Nagarathinam 15. S. Ramesh 34. After the aforesaid order, they were promoted as Assistants on various dates as disclosed in the impugned order itself. The names of the private respondents were included in the panel to which they originally belong. Even as per the impugned order, the private respondents were included in the panel for promotion to the post of Assistant during the years 1999-2000, 2000-2001, and 2001-2002. But, the names of the petitioners were included in the panel of the year 2002-2003. The details of the same are extracted hereunder. 35. Since, admittedly, the private respondents belong to the panel years 1998-99 to 2001-02, they were rightly placed above the petitioners, since the first two petitioners belong to the panel of the years 2002-03. 36. But, the names of the petitioners were included in the panel of the year 2002-2003. The details of the same are extracted hereunder. 35. Since, admittedly, the private respondents belong to the panel years 1998-99 to 2001-02, they were rightly placed above the petitioners, since the first two petitioners belong to the panel of the years 2002-03. 36. As far as the petitioner in W.P.No.9144 of 2009 is concerned, he came to Ariyalur District on request transfer in the year 2004 and therefore, he should be treated as junior most in the cadre of Assistant. It is surprising to note that he also claims seniority over and above the private respondents on the sole ground that the approval for the appointment to the post of Junior Assistant was given by TNPSC in 2005 vide letter dated 22.7.2005. As stated above, the TNPSC granted approval retrospectively from the years 1990-1991 and 1992-93. 37. Moreover, the approval granted retrospectively by the TNPSC vide letter dated 22.7.2005 was not questioned by the petitioners and the same has become final. 38. The judgments relied on by the learned counsel for the petitioners also do not help the case of the petitioners. In the judgment of this Court reported in (2007) 4 MLJ 160 (cited supra), while the candidates appointed under Rule 10(a)(i) of Tamil Nadu State and Subordinate Service Rules claimed seniority over the regular direct recruits, the Division Bench held that the regular direct recruits shall be considered as senior over the candidates appointed under Rule 10(a)(i). But, in the present cases, the first two petitioners belong to the same category of part time/full time Clerks in Panchayat and both the petitioners and the private respondents were appointed under 10% reservation meant for part time/full time Clerks to the post of Junior Assistant. Hence, the said decision is of no use. 39. In the other judgment cited by the learned counsel for the petitioner, namely, the judgment of the Apex Court reported in (2007) 1 SLJ 98, the issue was relating to fixation of seniority between the direct recruits and the promotees. Therefore, that judgment would not be of any use to the case of the petitioners. 40. Further more, factually the private respondents are senior to the petitioners. Therefore, that judgment would not be of any use to the case of the petitioners. 40. Further more, factually the private respondents are senior to the petitioners. It is also stated that all the petitioners as well as the respondents were further promoted as Deputy Block Development Officer based on the impugned seniority list during the pendency of the Writ Petitions. Thereafter, it is stated that the seniority list of Deputy Block Development Officers was issued and the private respondents were shown as seniors to the petitioners. 41. For all these reasons, the Writ Petitions fail and the same are dismissed. No costs. The connected Miscellaneous Petitions are closed.