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2014 DIGILAW 503 (MAD)

S. Arulmani v. Secretary to Government

2014-02-26

M.VENUGOPAL

body2014
Judgment : 1. The petitioners have preferred the present Writ of Mandamus praying for passing of an order by this Court in directing the Respondents to implement the revised seniority list, made in furtherance to the orders of the Hon'ble Supreme Court of India in Civil Appeal Nos. 2791 to 2793 of 2002, under the proceedings of the second Respondent, dated 14.10.2011 under reference No. 32551/A3/2011 in full, effect necessary revision in seniority in the cadres of District Registrar and Assistant Inspector General of Registration in so far as they are concerned and consequently, to consider their case for promotion as Deputy Inspector Generals of Registration. 2. According to the petitioners, they were directly recruited as Sub-Registrars through the third Respondent / TNPSC, Chennai -2, during the year 1986 and they joined duty during August 1986. They served as Sub-Registrars and after promotions, presently they are serving in the cadre of Assistant Inspector Generals of Registration. The next promotion is to the post of Deputy Inspector General of Registration. 3. The stand of the petitioners is that the service in the Registration Department are governed by the Tamil Nadu State and Subordinate Services Rules 1955 (hereinafter referred to as the General Rules) and by the Tamil Nadu Registration Services Rules 1969 (hereinafter referred to as the Sub-Rules). During the year 1969, the Sub Rules provided for two class of Officers. Class-I comprise of Inspector General (Registration) and the Class – II provided for two categories, viz., the Inspector of Registration Officers and District Registrars. Through a subsequent modification, District Registrars were placed in the third category. 4. Also the plea of the petitioners is that the recruitment of District Registrars is either by direct recruitment or by transfer from Tamil Nadu Registration Subordinate Services. The posts of District Registrars were to be filled by direct recruitment and by recruitment by transfer from the Madras Registration Subordinate Services in the proportion of 1:5 provided the number of substantive vacancies filled or reserved to be filled by direct recruitment was not to exceed three at a given time. This position was later modified during the year 1972. In the years 1981, 1982 and 1984, the Government prepared a temporary list of officers who were fit for appointment by transfer to the post of District Registrar pending finalisation of the regular list in consultation with the third Respondent. 5. This position was later modified during the year 1972. In the years 1981, 1982 and 1984, the Government prepared a temporary list of officers who were fit for appointment by transfer to the post of District Registrar pending finalisation of the regular list in consultation with the third Respondent. 5. The State Government after considering the proposal of the second Respondent and the observations of the third Respondent passed numerous orders regularising the services of the candidates from the Tamil Nadu Registration Subordinate Services, who had been temporarily appointed to function as District Registrars under Rule 10(a)(i)(1) of the General Rules. By virtue of the orders of the State Government, the services of the said officers, who were recruited by transfer to the post of District Registrars for the years 1986-87, 1987-88 and 1988-89 were regularised. 6. It comes to be known that having regard to the Sub Rules regarding recruitment to the post of substantive vacancies of District Registrars in the proportion of 1:5 which stood modified in the year 1972 so that at any given time there would be at least three directly recruited District Registrars, certain direct recruits claimed that their seniority ought to be counted from the year 1986 when the first set of transferee officers were sought to be regularised. The said claim was turned down by the Government on the basis that in terms of Rule 2(1) of the General Rules, a person is said to be appointed to a service only when he discharges for the first time the duties of a post borne on the cadre of such service and commenced probation or training prescribed for members thereof. Also it was indicated that inter-se seniority in the post of District Registrars where there were more than one method of recruitment would have to be fixed under Rule 35(aa) of the General Rules read with Rule 2(1). As such, an inference was drawn that the seniority of the direct recruits could not be fixed during the year 1986 as they had not entered service at that point of time. Resultantly, the names of the direct recruits were included in the seniority list but placed below the persons who were promotee District Registrars. 7. The said seniority list was challenged by the direct recruit District Registrars, who filed O.A.No. 779 of 1995 and batch and the said applications were dismissed by the Administrative Tribunal. Resultantly, the names of the direct recruits were included in the seniority list but placed below the persons who were promotee District Registrars. 7. The said seniority list was challenged by the direct recruit District Registrars, who filed O.A.No. 779 of 1995 and batch and the said applications were dismissed by the Administrative Tribunal. It is the case of the petitioners that the Tribunal accepted the case of the promotees who had been appointed temporarily under Rule 10(a)(i)(1) on different dates and taking note of the fact that the probation of the said promotees was declared in respect of the regular panel of District Registrars for the year 1985-86 to 1987-88 and in as much as the direct recruit District Registrars who had challenged the seniority list were appointed only during the year 1989, held against the said 'Direct Recruits'. 8. The Direct Recruits preferred W.P.Nos.16806 of 1998, 1548 and 1549 of 1999 by challenging the said order of Tribunal in O.A.No. 779 of 1995 etc., batch. This Court discussed the Sub Rules and also the Government order, Dated 26.04.1972 in and by which the ratio for recruitment at 1:5 was amended in such a manner that there would be at least three directly recruited District Registrars in position at any given time and observed that the said amendment fraudulently took away the quota available for direct recruits and had merely made a provision for three directly recruited District Registrars to be in position and found that Rule 23(a) of the General Rules was relevant for filling up vacancies by direct recruitment. This Court found that when the appointing Authority had not determined the subsequent date for the commencement of probation by promotee District Registrars which would mean that they would be deemed to have been allowed to commence their probation from the date of their first temporary appointment negated the submissions of the direct recruit District Registrars that since the initial temporary appointment of the promotees had not been made according to Rules, their seniority could not be reckoned from the date of their initial appointment under Rule 10(a)(i) (1) of the General Rules. Further, placing reliance on Rule 4(a) of the said Rules, this Hon'ble Court held that the appointment of the promotees was made in accordance with Rules, more particularly, explanation II to Rule 4 and further held that the appointment of promotees through temporary on ad-hoc were not by way of any stop gap arrangement and consequently, had not interfered with the order of the Tribunal and dismissed the Writ Petitions. 9. It transpires that the direct recruit District Registrars being aggrieved against the orders passed in W.P.Nos. 16806 of 1998 and 1548 of 1999, filed Civil Appeal Nos. 2791 to 2793 of 2002 before the Hon'ble Supreme Court of India and the Hon'ble Supreme court of India held in the decision K.Madalaimuthu and Another Vs. State of T.N., and Others reported in (2006) 6 SCC 558 at special page Nos. 26 and 27 in paragraph Nos. 24 to 27 had observed as follows:- 24. On a consideration on the submissions made on behalf of the respective parties and the decisions cited on their behalf, the consistent view appears to be the one canvassed on behalf of the appellants. The decisions cited by Mr.Rao have been rendered in the context of Rule 10(a)(i)(1) and the other relevant rules which are also applicable to the facts of the instant case. Apart from the above, the law is well settled that initial appointment to a post without recourse to the rules of recruitment is not an appointment to a service as contemplated under Rule 2(1) of the General Rules, notwithstanding the fact that such appointee is called upon to perform duties of a post borne on the cadre of such service. In fact Rule 39(c) of the General Rules indicates that a person temporarily promoted in terms of Rule 39(a) is required to be replaced as soon as possible by a member of the service who is entitled to the promotion under the Rules. 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. 25. 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. 25. In the instant case, the authorities on the strength of the several government orders giving retrospective effect to the regularisation of the promotees, have taken the date of initial appointment of such promotees as the starting point of their seniority. In our view, such a course of action was erroneous and contrary to the well-established principles relating to determination of seniority. In our view, the High Court took an erroneous view in the matter in applying Rule 4 of the General Rules and holding that the period during which the promotees had initially discharged the duties of District Registrars, though appointed temporarily under Rule 10(a)(i)(1), was to be counted for determining their seniority. The decision of this Court in L.Chandrakishore Singh relied on by Shri Venkataramani did not involve the question of persons appointed outside the service as a stop-gap arrangement. The fact situation of the said decision is different from the fact situation of the instant case which finds support from the decisions cited by Mr.Rao. 26. We, therefore, set aside the order passed by the High Court and direct the respondents concerned to re-determine the seniority of the appellants in relation to the promotees after reckoning the starting point of seniority of such promotees from the date on which their services were regularised and not from the date of their initial appointment under Rule 10(a)(i)(1) of the General Rules. 27. The appeals, therefore, succeed and are disposed of with the aforesaid directions. There will be no order as to costs." 10. Consequent to the Judgment of the Hon'ble Supreme Court, the Second Respondent/IG of Registration, Chennai, on the representation of the Direct recruits through proceedings bearing No. 32551/A3/2011, dated 14.10.2011, implemented the orders of the Hon'ble Supreme Court passed in Civil Appeal Nos. 2791 to 2793 of 2002 and revised the list. In fact, the Second Respondent in the said order, had referred to the orders of the Hon'ble Supreme Court directing the Respondents to taken into consideration the date on which the service of the promotees were regularised and not the date of initial appointment and the Second Respondent had consequently stated that the same had necessiated the re-fixation of seniority. In fact, the Second Respondent in the said order, had referred to the orders of the Hon'ble Supreme Court directing the Respondents to taken into consideration the date on which the service of the promotees were regularised and not the date of initial appointment and the Second Respondent had consequently stated that the same had necessiated the re-fixation of seniority. Resultantly, the seniority of the petitioners was re-fixed as under:- S.No. Petitioner Serial Number in Seniority List 1. 1st petitioner 180(ii) 2. 2nd petitioner 180(viii) 3. 3rd petitioner 180(ix) 4. 4th petitioner 180(v) 5. 5th petitioner 180(xiii) 6. 6th petitioner 180 (vii) 7. 7th petitioner 180(xiv) 11. Based on the Refixation of the seniority, the petitioners became eligible for further promotions up to the cadre of Deputy Inspector Generals of Registration. Further, one M.Manickam filed Writ Petition in W.P.No. 25137 of 2011 on the file of this Court challenging the said order re-fixing the seniority and originally interim stay of the order of re-fixation was also granted. Later counter affidavit was filed by the Respondents and this Court on 27.09.2012 passed the following order:- "Admittedly, the petitioner had retired from service and hence, in the event of the petitioner succeeds in the writ petition he will get only notional benefit. Therefore, there is o purpose in extending the stay of the impugned revised seniority list. By stalling the same, the other employees will be deprived of the promotion. Therefore, the petition for stay stands closed. However, if the petitioner succeeds in the writ petition, he has to be given notional benefits. Further, if further promotion has been made on the basis of the revised seniority list, the same shall not be modified in view of the pendency of the writ petition. Post the writ petition for final hearing after four weeks." 12. It is pertinent to point out that in the said Writ Petition, the petitioners herein are the Respondents 5, 11, 12, 8, 16, 10 and 17 respectively. 13. Today when W.P.No. 25137 of 2011 came up for hearing, a representation was made on behalf of the Petitioner that the petitioner died and the writ petition stood abated. Recording the said fact and the endorsement made on behalf of the petitioners, the said Writ Petition in W.P.No. 25137 of 20111 got abated. 14. 13. Today when W.P.No. 25137 of 2011 came up for hearing, a representation was made on behalf of the Petitioner that the petitioner died and the writ petition stood abated. Recording the said fact and the endorsement made on behalf of the petitioners, the said Writ Petition in W.P.No. 25137 of 20111 got abated. 14. The Writ Petition No.27978 of 2013 came up for hearing as 'Specially Ordered Matter' before this Court on 18.02.2014 and the mater was adjourned to this day viz., 26.02.2014. The Learned Additional Government Pleader for the Respondents sought for an adjournment but this Court has not acceded to his request for adjournment and has proceeded further in the matter in issue. 15. At the outset, the Learned counsel for the petitioners urges before this Court that the Respondents by adhering to the order of the Hon'ble Supreme Court passed in C.A.Nos. 2791 to 2793 of 2002, dated 04.06.2006 and pursuant to the applications submitted by the direct recruits on 07.07.2011 seeking to revise the seniority list had prepared the revised seniority list, dated 14.10.2011 and by assigning reasons in detail for effecting the revision. However, the grievance of the petitioners is that the follow up action has not been taken pursuant to the orders of the Hon'ble Supreme Court passed in the aforesaid civil appeal proceedings pertaining to the implementation of the said revised seniority list, dated 14.10.2011. 16. The Learned senior counsel for the petitioners strenuously contends that consequent to the revision prepared by the Second Respondent through proceedings No. 32551/A3/2011, dated 14.10.2011, the petitioners are eligible for further promotion upto the cadre of Deputy Inspector General of Registration. Also that though the seniority list was implemented and the petitioners seniority in the cadre of Sub Registrar, Grade I was refixed and revised, the revision which is also to be carried out in the cadre of District Registrar and Assistant Inspector Generals of Registration was not done and if the proceedings of the Second Respondent, dated 14.10.2011 as stated supra are implemented in true letter and spirit, then the petitioners automatically are entitled to be promoted as Deputy Inspector Generals of Registration and further. 17. 17. The Learned senior counsel for the petitioners, during the winding up of his arguments submits that since the proceedings of the Second Respondent, dated 14.10.2011 was not implemented in full in regard to the 'Revised Seniority' effectively and consequent completion of the procedure for promotion in consultation with the third Respondent, the petitioners are really deprived of their reasonable, legitimate right to be promoted as Deputy Inspector Generals of Registration. 18. It is to be noted that in service jurisprudence the word 'seniority' is related with an advancement in career. Promotion is often based on seniority. An employee is very much interested in his inter se seniority. 19. At this stage, a close scrutiny of the proceedings of the Second Respondent in proceedings No. 32551/A3/2011, dated 14.10.2011 by this Court latently and patently indicates that the Second Respondent had followed the Judgment of the Hon'ble Supreme Court, dated 04.07.2006 in C.A.Nos. 2791 to 2793 of 2002 and prepared the revised seniority list, ofcourse by after taking into consideration of the petition, dated 07.07.2011 of Directly Recruited Gr-II, Sub Registrars for the year 1983-84. Further, it comes to light in the aforesaid proceedings of the Second Respondent, dated 14.10.2011, (the order of the Inspector General of Registration, Letter No. 34506/AA 218, dated 28.09.2009,(cited in 6th reference)) it is mentioned that the Serial No.470 to 495 was annulled. 20. Be that as it may, on an over all assessment of the facts and circumstances of the present case, in an encircling fashion and also this Court on an appreciation of the entire gamut of the matter in a proper and real prospective comes to an irresistible resultant conclusion that the proceedings of the Second Respondent, dated 14.10.2011 in regard to fixation of seniority in the cadre of District Registrar and Assistant Inspector General of Registration (in so far as the petitioners are concerned etc.,) does not suffer from any patent material, irregularity or illegality in the eye of law. Viewed in that perspective, the Writ Petition succeeds. 21. In the result, the Writ Petition is allowed. The Respondents are directed to implement the revised seniority list made in furtherance to the orders of the Hon'ble Supreme Court of India in Civil Appeal Nos. Viewed in that perspective, the Writ Petition succeeds. 21. In the result, the Writ Petition is allowed. The Respondents are directed to implement the revised seniority list made in furtherance to the orders of the Hon'ble Supreme Court of India in Civil Appeal Nos. 2791 to 2793 of 2002, dated 04.07.2006 under the proceedings of the Second Respondent, dated 14.10.2011 in reference No. 32551/A3/2011 in full and resultantly, they are to effect necessary revision in seniority in the cadres of District Registrar and Assistant Inspector General of Registration in so far as they are concerned. Further, the Respondents are directed to consider the case of the petitioners for promotion as Deputy Inspector Generals of Registration by following the rules and regulations, revise seniority in the manner known to law and in accordance with law within a period of six weeks from the date of receipt of a copy of this order. Consequently, connected Miscellaneous Petition is closed. No costs.