Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 400 (MAD)

S. K. M. Sivakumaran v. Government of Tamil Nadu

2014-02-19

R.SUBBIAH

body2014
Judgment : 1. This writ petition has been filed praying for issuance of a writ of Certiorarified Mandamus to call for the records relating to the proceedings of the 1st respondent bearing No.T1/56052/2006 (EO.No.360/2013) dated 07.08.2013 and to quash the same and consequently, direct the 1st and 2nd respondents to prepare a seniority list of eligible Motor Vehicle Inspector Gr-I based on the petitioner's seniority in Motor Vehicle Inspector Gr-II, by placing the petitioner above the direct recruits, respondents 4 & 5, and promote him as Deputy Transport Commissioner on that basis and till then not to make promotion to the post of Deputy Transport Commissioner. 2. Originally this writ petition was filed praying for issuance of a writ of Mandamus directing the respondents 1 & 2 to prepare a seniority list of eligible Motor Vehicle Inspector Gr-I based on the petitioner's seniority in Motor Vehicle Inspector Gr-II, by placing him above the direct recruits, respondents 4 & 5, and make promotion to Deputy Transport Commissioner on that basis and till then not to make promotion to the post of Deputy Transport Commissioner. 3. The brief facts necessary to decide the issue involved in this writ petition are as follows:- 3(1) The petitioner was appointed as Motor Vehicle Inspector Gr-II (hereinafter referred to as MVI Gr-II) by the proceedings dated 15.12.1992 of the Transport Commissioner, on compassionate ground since his father Mutharasappan died while in service. The petitioner joined duty on 28.12.1992. On 16.07.1993 Government Order in G.O.Ms.No.165 Labour & Employment, was issued waiving passing of Tamil Nadu Public Service Commission examination for persons like the petitioner, who were appointed on compassionate grounds. Hence, the petitioner was entitled to be regularised with effect from the date of his joining the service, because he was otherwise qualified. 3(2) While situation stood thus, after 16.07.1993, the 4th respondent-D.Venkatraman and 5th respondent-K.R.Krishnamurthy were appointed as MVI Gr-II, by order dated 26.07.1993 and they joined duty only during September-1993. As such, their date of appointment is subsequent to the date of appointment of the petitioner. Though there was administrative delay in issuing the order regularising the services of the petitioner in the post of MVI Gr-II, his services were regularised by order dated 25.03.1999 with retrospective effect from 16.07.1993. As such, their date of appointment is subsequent to the date of appointment of the petitioner. Though there was administrative delay in issuing the order regularising the services of the petitioner in the post of MVI Gr-II, his services were regularised by order dated 25.03.1999 with retrospective effect from 16.07.1993. Hence, it is the case of the petitioner that naturally, he is senior to the respondents 4 & 5, as they had joined duty only during September-1993 pursuant to the order of appointment dated 26.07.1993. 3(3) While so, the respondents 4 & 5 were promoted as MVI Gr-I on 12.03.1998, whereas the petitioner was promoted as MVI Gr-I only on 11.10.1999. On 03.08.2000, the petitioner's services as MVI Gr-I were regularised. In the order of regularisation dated 03.08.2000, though the respondents 4 & 5 were shown above the petitioner, it was clearly mentioned that the seniority list of MVI Gr-I would be issued separately. But, the seniority list of MVI Gr-I was not issued. It is further case of the petitioner that since he joined service earlier to the respondents 4 & 5 and his services were regularised with effect from 16.07.1993 ie., earlier to the date of appointment of the respondents 4 & 5, petitioner's name should have been shown as senior to the respondents 4 & 5. But, in the order of regularisation, the names of the respondents 4 & 5 were shown above the name of the petitioner. 3(4) On 16.11.2006, the Transport Commissioner called for particulars from the first 15 eligible candidates for promotion to the post of Regional Transport Officer (RTO). Since the seniority list was not prepared, the respondents 4 & 5 were among the first 15 to be called for. Hence, the petitioner herein filed a writ petition in W.P.No.20115/2007 before this Court seeking for a direction to the respondents 1 & 2 to prepare a seniority list of MVI Gr-I and to place him above the respondents 4 & 5. Similarly, one Muthu, who was also appointed on compassionate ground as MVI Gr-II earlier to the respondents 4 & 5, had filed a writ petition in W.P.No.18783/2007. Those two writ petitions were allowed on 03.01.2008 by the learned Single Judge of this Court by way of a common order. Similarly, one Muthu, who was also appointed on compassionate ground as MVI Gr-II earlier to the respondents 4 & 5, had filed a writ petition in W.P.No.18783/2007. Those two writ petitions were allowed on 03.01.2008 by the learned Single Judge of this Court by way of a common order. In the said common order, the learned Single Judge has directed the official respondents to prepare the seniority list taking into account the date of appointment of the petitioners therein as MVI Gr-II i.e, 16.07.1993. Virtually, the learned Single Judge directed that the petitioner and the said Muthu should be placed above the respondents 3 & 4. 3(5) As against the said common order of the learned Single Judge in W.P.Nos.20115 & 18783 of 2007, the respondents 4 & 5 herein had preferred writ appeals in W.A.Nos.258 & 380 of 2008. In the writ appeals, the Division Bench of this Court set aside the order of the learned Single Judge and directed the official respondents to publish the seniority list of MVI Gr-I within three months. But, the seniority list was not prepared even thereafter. Hence, the petitioner made a representation on 18.05.2012 to the official respondents in this regard. 3(6) In the meanwhile, the petitioner was promoted as RTO on 01.12.2010. Unless the seniority list of MVI Gr-I in terms of G.O.156 Labour & Employment, date 16.07.1993 is prepared, the petitioner's further promotion to the post of Deputy Transport Commissioner (in short 'DTC') would be affected. Hence, after sending legal notice to the official respondents, the petitioner has filed the present writ petition to direct the respondents 1 to 3 to prepare the seniority list of MVI Gr-I based on the petitioner's seniority in Motor Vehicle Inspector Gr-II, by placing him above the respondents 4 & 5, and to make promotion to Deputy Transport Commissioner on that basis and till then not to make promotion to the post of Deputy Transport Commissioner. 4. When the writ petition is pending, on 07.08.2013 the 1st respondent vide proceedings in No.T1/56052/2006 (EO.No.360/20013) has drawn the inter-se seniority lists for the posts of MVI Gr-II and MVI Gr-I, in which the petitioner was placed at Sl.No.69 in MVI Gr-II, and Sl.No.63 in MVI Gr-I, ie., below the direct recruits. 4. When the writ petition is pending, on 07.08.2013 the 1st respondent vide proceedings in No.T1/56052/2006 (EO.No.360/20013) has drawn the inter-se seniority lists for the posts of MVI Gr-II and MVI Gr-I, in which the petitioner was placed at Sl.No.69 in MVI Gr-II, and Sl.No.63 in MVI Gr-I, ie., below the direct recruits. Hence, the petitioner filed M.P.No.1 of 2014 to amend the prayer in the present writ petition, for issuance of a writ of Certiorarified Mandamus to call for the records relating to the proceedings of the 1st respondent bearing No.T1/56052/2006 (EO.No.360/2013) dated 07.08.2013 and to quash the same and consequently, to direct the 1st and 2nd respondents to prepare a seniority list of eligible Motor Vehicle Inspector Gr-I based on the petitioner's seniority in MVI Gr-II, by placing the petitioner above the direct recruits, respondents 4 & 5, and promote him as Deputy Transport Commissioner on that basis and till then not to make promotion to the post of Deputy Transport Commissioner. The said M.P.1 of 2014 was allowed by this Court vide order dated 03.02.2014 and subsequently, the prayer was amended. 5. Originally the present writ petition was filed as against the official respondents 1 to 3 and the respondents 4 & 5. The respondents 6 to 10 filed M.P.No.2 of 2013 seeking to implead them as party respondents, stating that they were appointed as MVI Gr-II by direct recruitment; that after due promotion as MVI Gr-I and subsequent promotion as RTO, they are now working at various places as RTO; that the present writ petition has direct nexus with their seniority and if the writ petition is allowed without hearing them, their seniority will be seriously jeopardized and they would be denied further promotion. The said M.P.No.2 of 2013 was allowed by this Court vide order dated 18.07.2013. Pursuant to the same, they were impleaded as Respondents 6 to 10. 6. The 11th respondent, who was also a compassionate appointee and similarly placed like the writ petitioner herein, was also impleaded as party respondent to the writ petition vide order of this Court dated 20.11.2013 made in M.P.No.3 of 2013. 7. Pursuant to the same, they were impleaded as Respondents 6 to 10. 6. The 11th respondent, who was also a compassionate appointee and similarly placed like the writ petitioner herein, was also impleaded as party respondent to the writ petition vide order of this Court dated 20.11.2013 made in M.P.No.3 of 2013. 7. The respondents 1 & 2 have filed a joint counter affidavit contending as follows:- 7(1) The petitioner was appointed as MVI Gr-II on compassionate ground on 28.12.1992, subject to the condition that he should appear before the TNPSC in the normal course and get himself regularly selected to the post of MVI Gr-II. The services of the petitioner was regularised with effect from 16.07.1993 ie., from the date of issuance of Government Order viz., G.O.(2D).No.63, Home (Tr-II) Department, dated 25.03.1999. In the meanwhile, 39 new candidates were selected by the 3rd respondent for the post of MVI Gr-II vide letter No.8227/Q1/87, dated 19.11.1992 and posting orders were issued to the selected candidates in the Transport Commissioner Office letter No.51041/T1/1988, dated 26.07.1993. Certain clarifications were sought for by the Transport Commissioner with regard to fixation of seniority of Motor Vehicle Inspectors, among the compassionate appointees and direct recruits. 7(2) Only in this situation, the petitioner had filed earlier writ petition in W.P.No.20115/2007 seeking to issue a writ of Certiorarified Mandamus to call for the entire records culminating in the issuance of letter No.64169/T2/2006, dated 16.11.2006, of Transport Commissioner's Office and to quash the same so far as it is against the petitioner. Similarly, one Muthu who was appointed as MVI Gr-II on compassionate ground had also filed a writ petition in W.P.No.18783/2007 on similar grounds. The said two writ petitions were allowed by the learned Single Judge of this Court vide common order dated 03.01.2008. The respondents 4 & 5 herein, who were affected by the said common order passed by the learned Single Judge, had filed writ appeals in W.A.Nos.258 & 380 of 2008. In the writ appeals, the common order passed by the learned Single Judge was set aside by the Division Bench and the Transport Commissioner/2nd respondent therein was directed to publish the seniority list of MVI Gr-I within a period of three months. In the writ appeals, the common order passed by the learned Single Judge was set aside by the Division Bench and the Transport Commissioner/2nd respondent therein was directed to publish the seniority list of MVI Gr-I within a period of three months. 7(3) In order to comply with the said order of the Court, for fixing the inter-se seniority among the compassionate appointees and direct recruits, the Transport Commissioner has addressed the Government with a request to clarify certain points relating to fixation of inter-se seniority between compassionate appointees and direct recruits. The Government has requested the TNPSC to send its views regarding the above matter. The TNPSC has sent its views on fixation of seniority and the same was communicated to the Transport Commissioner vide Government letter No.49985/Home (Tr-IIA) Department/2013-1 dated 18.07.2013 to take further action. 7(4) The 2nd respondent has furnished the list of candidates by fixing inter-se seniority among the MVI Gr-II vide proceedings No.T1/56052/2006 dated 07.08.2013. It has been further stated in the counter affidavit filed by the respondents 1 & 2 that even though the seniority of the petitioner is fixed with concurrence of TNPSC, the petitioner has not fulfilled the following conditions prescribed for the post of Deputy Transport Commissioner for appointment by promotion from the cadre of Regional Transport Officer, as per Rule 3 of the Tamil Nadu Transport Service Rules_ a) must have served for a total period of not less than 5 years as RTO; b) out of which one year of service as Assistant Secretary, State Transport Authority/Secretary, State Transport Appellate Tribunal/Departmental representative, State Transport Appellate Tribunal. A candidate must possess the requisite qualification and experience in the feeder post to be eligible for promotion to the higher post. The petitioner is not eligible for the higher post ie., Deputy Transport Commissioner since he has not fulfilled the above conditions. Thus, they prayed for dismissal of the writ petition. 7. The respondents 6 to 10 have also filed a joint counter denying the claim of the petitioner. 8. It is the submission of the learned senior counsel appearing for the petitioner that the petitioner was appointed as MVI Gr-II by proceedings dated 15.12.1992 and he joined duty on 28.12.1992. Thus, they prayed for dismissal of the writ petition. 7. The respondents 6 to 10 have also filed a joint counter denying the claim of the petitioner. 8. It is the submission of the learned senior counsel appearing for the petitioner that the petitioner was appointed as MVI Gr-II by proceedings dated 15.12.1992 and he joined duty on 28.12.1992. The Government has issued orders in G.O.Ms.No.156 Labour & Employment Dept dated 16.07.1993, ordering that in the cases of compassionate appointees, those who are technically and professionally qualified and already appointed subject to the condition that they would have to get themselves selected by the TNPSC in the normal course, their services may be regularised with effect from the date of issuance of the orders i.e, 16.07.1993, after obtaining the concurrence of TNPSC. Accordingly, the petitioner's services in the cadre of MVI Gr-II were regularised with effect from 16.07.1993 vide G.O.(2D)/63/Home (Transport-II) Dept, dated 25.03.1993. 9. While situation stood thus, 39 new candidates were selected by the TNPSC for the post of MVI Gr-II vide letter No.8227/Q1/87, dated 19.11.1992 and posting orders were issued to the selected candidates in the Transport Commissioner's Office letter No.51041/T1/1988, dated 26.07.1993. The appointment of these directly recruited candidates is subsequent to the appointment of the petitioner herein and the 11th respondent, who was also appointed on compassionate ground on 17.06.1992. The respondents 4 & 5 are also direct recruits, who were appointed on 26.07.1993. The next avenue for promotion from MVI Gr-II is MVI Gr-I. Though the petitioner herein and 11th respondent were appointed earlier to the respondents 4 & 5, there was administrative delay in issuing the order of regularisation to the petitioner and 11th respondent. The services of the petitioner were regularised by the proceedings dated 25.3.1999 with retrospective effect from 16.07.1993. Similarly, the services of the 11th respondent was regularised by the proceedings dated 12.12.2006, with retrospective effect from 16.07.1993, ie., from the date of issuance of G.O.Ms.156 Labour & Employment Dept. 10. After regularisation of services in the cadre of MVI Gr-II, the petitioner was promoted to the post of MVI Gr-I on 11.10.1999 and his service in the cadre of MVI Gr-I were regularised on 03.08.2000. Though the petitioner and 11th respondent joined earlier to the respondents 4 & 5, the names of the respondents 4 & 5 were shown above the names of the petitioner and 11th respondent. Though the petitioner and 11th respondent joined earlier to the respondents 4 & 5, the names of the respondents 4 & 5 were shown above the names of the petitioner and 11th respondent. In fact, in the regularisation order dated 03.08.2000, though the respondents 4 & 5 were shown above the petitioner, it was clearly mentioned that the seniority list of MVI Gr-I would be issued separately. But, seniority list was not issued even thereafter. While so, on 16.11.2006, the Transport Commissioner called for the particulars from the first 15 eligible candidates for promotion to the post of RTO. Due to non-preparation of the seniority list, the respondents 4 & 5 were among the first 15 to be called for. 11. Though the petitioner joined duty earlier to the respondents 4 & 5, their names were shown above the petitioner's name. Hence, the petitioner had filed earlier writ petition in W.P.No.20115 of 2007. Similarly, one Muthu, who was appointed on compassionate ground prior to the respondents 4 & 5, had also filed a writ petition in W.P.No.18783/2007. Those two writ petitions were disposed of by the common order dated 03.01.2008, whereby the learned Single Judge allowed the writ petitions and directed the official respondents to complete the process of preparing the panel for the year 2006-2007 for filling up of the posts of Regional Transport Officers by fixing the inter-se seniority among the candidates in the cadre of MVI Gr-I within two months. The learned Single Judge had further directed the official respondents to fix the seniority of the petitioners therein by reckoning their services on and from 16.07.1993 in the cadre of MVI Gr-II and place them at the appropriate place in the inter-se seniority list among the candidates of MVI Gr-I and also include their names in the panel for the year 2006-2007 for the post of RTO after getting the concurrence of the TNPSC in this regard. 12. The said order of the learned single judge was challenged before the Division Bench by the respondents 4 & 5 by way of filing writ appeals in W.A.Nos.258 & 380 of 2008. 12. The said order of the learned single judge was challenged before the Division Bench by the respondents 4 & 5 by way of filing writ appeals in W.A.Nos.258 & 380 of 2008. In the writ appeals, the Division Bench has set aside the order of the learned Single Judge, observing that there was no need to decide the disputed issues in the absence of proper parties as it would have the effect of giving an indication to the authority as to how the seniority list has to be prepared. The Division Bench has directed the official respondents to publish the seniority list of MVI Gr-I within a period of three months. Though the order was passed by the Division Bench on 08.09.2010 giving direction to the official respondents to prepare the seniority list, the seniority list of MVI Gr-I was not prepared. 13. In the meanwhile, after the order was passed in earlier writ petitions by the learned Single Judge, the respondents 4 & 5 were promoted as RTO in the year 2008. The petitioner herein was also promoted as RTO in the year 2010. Now, the next avenue of promotion from the post of RTO is Deputy Transport Commissioner (DTC). Since the seniority list was not prepared in spite of direction from this Court, the petitioner has filed the present writ petition originally with a prayer to issue a direction directing the respondents 1 & 2 to prepare a seniority list of eligible MVI Gr-I based on the petitioner's seniority in MVI Gr-II, by placing him above the direct recruits, respondents 4 & 5, and make promotion to Deputy Transport Commissioner on that basis and till then not to make promotion to the post of Deputy Transport Commissioner. 14. Pending the present writ petition, the 1st respondent has drawn the inter-se seniority list of MVI Gr-II and MVI Gr-I vide proceeding inT1/56052/2006 (EO.No.360.2013), dated 07.08.2013, wherein the petitioner's name found place at Sl.No.69 in MVI Gr-II and at Sl.No.63 in MVI Gr-I. 15. Hence, the petitioner filed M.P.No.1 of 2014 to amend the prayer and accordingly, vide order dated 03.02.2014, the prayer in the writ petition has been amended. 16. Hence, the petitioner filed M.P.No.1 of 2014 to amend the prayer and accordingly, vide order dated 03.02.2014, the prayer in the writ petition has been amended. 16. Now, the grievance of the petitioner is that since his appointment is earlier to the appointment of the respondents 4 & 5 and his service were regularised with effect from 16.07.1993, he should be placed above the respondents 4 & 5, whereas in the impugned proceedings of the 1st respondent dated 07.08.2013 the name of the petitioner was placed at Sl.No.69 in MVI Gr-II, and at Sl.No.63 in MVI Gr-I, ie., below the direct recruits. 17. In this regard, the learned counsel for the petitioner relied upon the unreported judgment of a Division Bench of this Court delivered in W.A.Nos.1826 of 2011 & etc., dated 22.01.2013, (M.Kendra Devi Vs. Government of Tamil Nadu & others), wherein it has been held that the appointments made by the Government pursuant to the Government Order in G.O.Ms.No.156, Labour and Employment Department, dated 16.07.1993, cannot be quashed at the instance of subsequent appointees. It was further held that the seniority of the compassionate appointees cannot be revised at the instance of those, who were appointed at a later point of time. Thus, the learned Senior Counsel appearing for the petitioner submitted that the petitioner herein was appointed on compassionate ground and his appointment is earlier to the appointment of Respondents 4 to 10. Moreover, the services of the petitioner were regularised by proceeding dated 25.03.1999 with retrospective effect from 16.07.1993. Therefore, the petitioner ought to have been placed above the direct recruits, who were appointed later to the appointment of the petitioner herein. 19. For the same proposition, the learned senior counsel appearing for the petitioner has also relied upon an unreported judgment of the Kerala High Court delivered in W.P.(C).No.25121 of 2006, dated 02.07.2012 (M.Krishnan Unni and others Vs. Kerala State Road Transport Corporation) and submitted that the seniority of the person appointed under Dying in Harness Scheme has to be counted only from the date of his initial appointment and not from the date of regularisation of his service. 20. The learned senior counsel appearing for the petitioner has also relied upon the judgment of this Court reported in (2011) 7 MLJ 83 (M.Sivashnmugam & others Vs. 20. The learned senior counsel appearing for the petitioner has also relied upon the judgment of this Court reported in (2011) 7 MLJ 83 (M.Sivashnmugam & others Vs. Government of TamilNadu) in support of his contention that the compassionate appointment is not illegal and it is only a regular appointment. Thus, he prayed for quashing the impugned proceedings of the first respondent. 21. The learned counsel appearing for the 11th respondent submitted that the compassionate appointment is a normal method of recruitment to the service. Further, when the appointments of the 11st respondent and the petitioner are earlier to the appointment of the direct recruits, the names of the 11st respondent and the petitioner ought to have been placed above the names of the direct recruits, who were appointed at later point of time. Further, unless the individual has been reduced to the lower rank, his seniority cannot be disturbed. In this regard, the learned counsel appearing for the 11th respondent invited the attention of this Court to Rule 35(a) of Tamil Nadu Subordinate Services Rules. 22. The learned Additional Advocate General appearing for the respondents 1 & 2 submitted that though the petitioner was appointed on 28.12.1992 on compassionate ground, the said appointment of the petitioner was subject to the condition that he should appear before the TNPSC in the normal course and get himself regularly selected. Only by the order dated 25.03.1999, the petitioner's services were regularised with retrospective effect from 16.07.1993, ie., subsequent to the appointment of the direct recruits on 26.07.1993. Since the petitioner's services were regularised subsequent to the appointment of the direct recruits, he cannot be placed in the seniority list above the direct recruits. In support of his contention, the learned Additional Advocate General has also relied upon the judgment reported in (2006)6 SCC 558 (K.Madalaimuthu Vs. State of Tamil Nadu) wherein it has held as follows:- “..... It stands to reason that a person who is appointed temporarily to discharge the functions in a particular post without recourse to the recruitment rules, cannot be said to be in service till such time as his appointment is regularised. State of Tamil Nadu) wherein it has held as follows:- “..... It stands to reason that a person who is appointed temporarily to discharge the functions in a particular post without recourse to the recruitment rules, cannot be said to be in service till such time as his appointment is regularised. It, therefore, follows that it is only from the date on which his services are regularised that such appointee can count his seniority in the cadre.” For the same proposition, the learned Additional Advocate General has also relied upon the judgment reported in (2009) 6 SCC 428 [M.P.Palanisamy Vs. A.Krishnan].The relevant portions in the said judgment reads as follows:- “40. Speaking on the interpretation of G.O.Ms. No. 1813, the Learned Senior Counsel appearing on behalf of the appellants, led a great stress on the language of second condition, more particularly, on the last 3 words, they being “for the year”. For the convenience sake, we will quote that condition:- “They will be placed below the candidates selected by the Tamil Nadu Public Service Commission while ranking their seniority, i.e., those candidates selected by the TNPSC for the year.” Relying on this, the Learned Senior Counsel contended that, therefore, the appellants were quite justified in interpreting that the seniority rule will apply only and only if the candidates appointed under Rule 10(a)(i)(1) and the TNPSC selected candidates were appointed in the same year. 41. Mr.Selvaraju took the argument further and submitted that since the appointment of the TNPSC selected candidates came only in the year 1986, only those candidates under Rule 10(a)(i)(1) would be rendered junior who were appointed after 1986, but those, who were appointed earlier, would have to be held to be senior to the TNPSC selected candidates. 42. We are not impressed by this, as we have already pointed out that under Rule 23(a) (i) of the Tamil Nadu State and Subordinate Services Rules, the persons who were in service, could not be rendered junior by the regularization of the ad-hoc candidates at later stage. This G.O.Ms. No. 1813, therefore, has to be interpreted in the light of Rule 23(a)(i), which was a General Rule and applicable to all the appointments. After all, when a clear reference was made to Rule 10(a)(i)(1), which was from the General Rules, there was no reason to make any exception and not to read Rule 23(a)(i) of the General Rules. No. 1813, therefore, has to be interpreted in the light of Rule 23(a)(i), which was a General Rule and applicable to all the appointments. After all, when a clear reference was made to Rule 10(a)(i)(1), which was from the General Rules, there was no reason to make any exception and not to read Rule 23(a)(i) of the General Rules. For this reason, the argument must fail.” Thus, by relying upon the above said judgments, the leaned Additional Advocate General submitted that though the petitioner was appointed earlier to the direct recruits, his services were regularised only by the order dated 25.03.1999, with retrospective effect from 16.07.1993. Hence, his seniority can be counted only from the date of regularisation order dated 25.03.1999. 23. It is yet another submission of the learned Additional Advocate General that as per the Rule 3 of Tamil Nadu Transport Service Rules, the petitioner must have served for total period of not less than five years as RTO and out of which, one year of service as Assistant Secretary, State Transport Authority/ Secretary, State Transport Appellate Tribunal/ Department representative, State Transport Appellate Tribunal. Since petitioner has not completed five years of service in RTO, he is not eligible for the promotion to the post of DTC. 24. The learned counsel for the respondents 6 to 10 by relying upon the judgment of this Court reported in (2007)4 MLJ 160 [P.Perumal Vs. A.V.Sureshbabu and others] submitted that seniority of a direct recruit has to be counted from the date on which he starts discharging the duty of post prone on the cadre, whereas the seniority of a temporary appointee appointed de hors the rules or to a fortuitous vacancy should be counted from the date of regular appointment. In the instant case, the petitioner's services were regularised only by the order dated 25.03.1999 with retrospective effect from 16.07.1993, therefore, the seniority of the petitioner has to be counted only from that date only ie., 25.03.1999. It is further submitted by the learned counsel appearing for the respondents 6 to 10 that though in the regularisation order dated 25.03.1999 it has been stated that the services of the petitioner was regularised with retrospective effect from 16.07.1993, his services prior to the date of regularisation has to be counted only for the purpose of increment and probation and not for seniority. Thus, the learned counsel for the respondents 6 to 10 prayed for dismissal of the writ petition. 25. Heard the submission made on either side and perused the materials available on record. 26. The petitioner was appointed to the post of MVI Gr-II by proceedings of the Transport Commissioner dated 15.12.1992 on compassionate ground and he joined duty on 28.12.1992. While so, on 16.07.1993 the Government issued orders in G.O.Ms.No.156, Labour & Employment Department, waiving the passing of TNPSC examination for the persons like the petitioner, who were appointed on compassionate grounds. The respondents 4 & 5 were appointed as MVI Gr-II, as direct recruits, by the order dated 26.07.1993 ie., subsequent to the appointment of the petitioner. But, they were promoted as MVI Gr-I in the year 1998. Though the petitioner was appointed earlier to the respondents 4 & 5, since his services were not regularised, he was promoted as MVI Gr-I only on 11.10.1999, ie., subsequent to the regularisation of his service in the cadre of MVI Gr-II by order dated 25.03.1999. On 03.08.2000, the petitioner's services in the cadre of MVI Gr-I were also regularised and in the order of regularisation dated 03.08.2000, it was clearly mentioned that seniority of MVI Gr-I would be issued separately. But, the seniority list was not issued. But, without issuing the seniority list, on 16.11.2006 the Transport Commissioner called for particulars of first 15 eligible candidates for promotion to the post of RTO. Since the Transport Commissioner called for the first 15 candidates for promotion to the post of RTO, without preparing the seniority list, the petitioner had filed a writ petition before this Court in W.P.No.20115/2007 seeking to direct the official respondents to prepare seniority list of MVI Gr-I and to place the petitioner above the respondents 4 & 5. Similarly, one Muthu who was also appointed on compassionate ground as MVI Gr-II, filed a writ petition in W.P.No.18783/2007 before this Court. The said two writ petitions were allowed by the learned Single Judge of this Court by order dated 03.01.2008. Similarly, one Muthu who was also appointed on compassionate ground as MVI Gr-II, filed a writ petition in W.P.No.18783/2007 before this Court. The said two writ petitions were allowed by the learned Single Judge of this Court by order dated 03.01.2008. But, subsequently, the order of the learned Single Judge was set aside by the Division Bench in Writ Appeal Nos.258 & 380 of 2008 by order dated 08.09.2010, with observation that the learned Single Judge should have avoided issuing a positive direction to place the petitioner above the respondents 4 & 5 in seniority, in the absence of necessary parties in the writ petition. Further, the Division Bench has given a direction to publish the seniority list of MVI Gr-I within a period of three months. Meanwhile, the petitioner was also promoted as RTO on 01.12.2010. Even thereafter, seniority list was not prepared by the official respondents. Hence, the petitioner has filed the present writ petition, originally with a prayer to direct the respondents 1 & 2 to prepare a seniority list of eligible Motor Vehicle Inspector Gr-I based on the petitioner's seniority in Motor Vehicle Inspector Gr-II, by placing him above the direct recruits, respondents 4 & 5, and make promotion to Deputy Transport Commissioner on that basis. 27. Pending the writ petition, the seniority list was published by the 1st respondent. Hence, the petitioner filed a petition in M.P.No.1 of 2014 to amend the prayer to quash the seniority list since his name was placed below the direct recruits viz., respondents 4 & 5. Now, it is the submission of the learned Additional Advocate General that since the petitioner's services in the cadre of MVI Gr-II were regularised only subsequent to the appointment of the respondents 4 & 5, the petitioner's seniority has to be counted only from the date of order of regularisation ie., 25.03.1999. Whereas, according to the learned senior counsel for the petitioner, the petitioner's services were regularised with effect from 16.07.1993 ie., prior to the appointment of the direct recruits and hence, he has to be placed above the direct recruits in the seniority list. 28. In view of the above submission made on either side, I am of the opinion, it would be appropriate to extract the relevant portion from the regularisation order issued vide G.O.(2D).No.63 Home (Transport-II) Department, dated 25.03.1999, which reads as follows:- “2. 28. In view of the above submission made on either side, I am of the opinion, it would be appropriate to extract the relevant portion from the regularisation order issued vide G.O.(2D).No.63 Home (Transport-II) Department, dated 25.03.1999, which reads as follows:- “2. The Tamil Nadu Public Service Commission was consulted for concurrence for the regular appointment of Thiru.S.K.M.Sivakumaran. Now, the Commission has accorded its concurrence under the later part of Regularisation 16(b) of Tamil Nadu Public Service Commission Regularisations, 1954 for the regular appointment of Thiru.S.K.M.Sivakumaran, son of late Thiru.K.Muthurasappan, as Motor Vehicle Inspector Grade-II with effect from 16.07.1993 subject to the condition that he should be physically fit for the post.” A reading of the above Government Order would show that with the concurrence of the TNPSC, the petitioner's services were regularised with effect from 16.07.1993. In the regularisation order, no condition was imposed for fixation of seniority of the petitioner. The only condition in the said order is that he should be physically fit for the post. Under such circumstances, I am of the opinion that the petitioner's seniority has to be counted only from the date of his appointment, since his appointment is earlier to the appointment of direct recruits, to a regular vacancy on compassionate ground. 29. Though plethora of cases were relied upon by the learned counsel for the respondents 4 to 10 as well as by the Additional Advocate General, I find that all those cases are dealing with the temporary appointment and appointment on ad hoc basis. Temporary appointment is not a regular appointment. But, the compassionate appointment is one of the methods of appointment to a regular vacancy in accordance with the Rules and it is legally valid appointment. In this regard, a reference could be placed in the judgment of this Court reported in (2011)7 MLJ 83 [M.Sivashnmugam & others Vs. Government of Tamil Nadu], wherein it has been held as follows:- “15. Further, Rule-48 of the General Rules for the Tamil Nadu State and Subordinate Services empower the State Government to make compassionate appointments. The post of Assistant Engineers in the Highways Department is governed by the Highway Engineering Service Rules and, for appointment to the same, there are two modes prescribed viz., (a) Direct Recruitment and (b) Recruitment by Transfer. Further, Rule-48 of the General Rules for the Tamil Nadu State and Subordinate Services empower the State Government to make compassionate appointments. The post of Assistant Engineers in the Highways Department is governed by the Highway Engineering Service Rules and, for appointment to the same, there are two modes prescribed viz., (a) Direct Recruitment and (b) Recruitment by Transfer. Undoubtedly, the said post falls within the purview of the Tamil Nadu Public Service Commission for the purpose of selection to the post by Direct Recruitment. The appointing authority being the Chief Engineer would furnish the estimate of vacancies to the Commission in the post of Assistant Engineer for every year to make direct recruitments to the said posts, whereupon, the Commission would complete the selection process and communicate the list of selected candidates to the appointing authority within a reasonable period of time. While so, in the case of respondents/compassionate appointees who came to be appointed as Assistant Engineers during 1988, 1992, 1994 and 1996, after their appointments, when the appointing authority submitted their names for regularisation, the Government by exercising Rule 48 of the General Rules of the Tamil Nadu State and Subordinate Services issued orders, regularising their services with effect from 16.7.1993. Also, on seeking concurrence of the TNPSC by the State Government as required under Regulation 16 (b) of the Tamil Nadu Public Service Commission Regulations, 1954, for making their appointments, the Commission, after verifying all the relevant records pertaining to the compassionate appointees, found that all of them are educationally qualified to hold the post of Assistant Engineer and that they had also satisfied the other requirements like indigent circumstances of the family, and so finding, ultimately, the TNPSC, in terms of Regulation 16 (b) of the Tamil Nadu Public Service Commission Regulations, 1954, accorded its concurrence. Therefore, applying the scheme of compassionate appointment in this particular set of cases in terms of the professional qualification of the candidates and the indigent circumstances of the family of the deceased Government Servant, based on G.O. Ms. Nos.155 and 156, stemming from G.O. Ms. No.1119, dated 20.5.1981, can never be found fault with or criticised by the petitioners under the pretext that the said G.Os interfere with their rights guaranteed under Article 16 (1) and (2) of the Constitution of India. Nos.155 and 156, stemming from G.O. Ms. No.1119, dated 20.5.1981, can never be found fault with or criticised by the petitioners under the pretext that the said G.Os interfere with their rights guaranteed under Article 16 (1) and (2) of the Constitution of India. Further, even 11 years prior to the appointment of the petitioners through Direct Recruitment, the respondents/compassionate appointees joined the services of the Highways Department, therefore, at this point of time, the prayer made to deprive them of their legal right for promotion is legally not sustainable and also, the petitions containing such prayer are clearly barred by limitation. 16. Therefore, the consequential relief sought for by the petitioners that the compassionate appointees, who were serving in the Department even before their recruitment, should be sidelined allowing the petitioners to take march over them, in the peculiar set of facts of the instant case, cannot be granted. It follows that the argument advanced by the learned counsel for the petitioners that the impugned G.Os. were issued contrary to the scheme of Article 309 of the Constitution does not merit consideration.” Since the appointment of the petitioner on compassionate ground is one of the methods of appointment to a regular vacancy in accordance with the Rules and when the order of regularisation says that it takes effect from the date of issuance of the Government Order viz., 16.07.1993 without stipulating any condition with regard to the fixation of seniority of the petitioner, I am of the opinion that seniority of the petitioner has to be fixed from the date of his regularisation viz., 16.07.1993. Further, on the date of the regularisation of the service of the petitioner, seniority list was not prepared by the 1st respondent. The seniority list came to be prepared only on 07.08.2013. Whereas the service of the petitioner was regularised as early as on 25.03.1999 with effect from 16.07.1993 ie., much earlier to the preparation of seniority list. Under such circumstances, I am of the opinion that there cannot be any impediment to place the name of the petitioner above the respondents 4 & 5, who have been appointed on 26.07.1993, subsequent to the appointment of petitioner. 30. Under such circumstances, I am of the opinion that there cannot be any impediment to place the name of the petitioner above the respondents 4 & 5, who have been appointed on 26.07.1993, subsequent to the appointment of petitioner. 30. It is yet another submission of the learned Additional Advocate General that for the promotion to the post of Deputy Transport Officer (DTO), the petitioner must have completed not less than five years of service as Regional Transport Officer (RTO), whereas the petitioner was promoted as RTO only in the year 2010 and he has not completed five years in the post of RTO. But, I am of the opinion, had the petitioner's seniority been fixed properly, he would have been promoted to the post of RTO in the year 2008 itself. But for no fault of him, his seniority was not fixed and he was promoted only in the year 2010. Therefore, considering this fact, I am of the opinion, the petitioner's claim cannot be rejected on the ground that he has not completed 5 years of service as RTO. 31. For the foregoing reasons, I am of the opinion that the writ petition is liable to be allowed and accordingly, the writ petition is allowed and the impugned order is quashed. The respondents 1 & 2 are directed to prepare a seniority list of eligible Motor Vehicle Inspector Gr-I & II, by placing the petitioner above the direct recruits viz., respondents 4 & 5, and promote him as Deputy Transport Commissioner on that basis. Consequently, connected Miscellaneous Petition is closed. No costs.