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2019 DIGILAW 1059 (MAD)

K. Pethannarajan v. Secretary to Government

2019-04-10

ABDUL QUDDHOSE

body2019
JUDGMENT : ABDUL QUDDHOSE, J. 1. The instant Writ Petition has been filed challenging the State Level Seniority list passed by the second respondent under the impugned order in reference Na.Ka.290/ A2/2009 dated 19.02.2009 and the consequential order dated 20.02.2009 and consequently direct the third respondent to absorb the petitioners herein to the post of Grade III Librarian as per the District Level Seniority list maintained by the third respondent out of 9 vacancies maintained from the funds available with the Local Library Authority, with all monetary and service benefits within a reasonable time. Brief facts leading to the filing of the instant writ petition are as follows: 2. According to the petitioners, they were employed in the post of Village Librarian on a consolidated pay of Rs. 1,500/-. The next promotional post of the petitioners is Grade III Librarian. It is their case that they are eligible for promotion to the said post and that they have requisite qualification and experience for becoming Grade III Librarian. According to them, their appointment as Village Librarian was proper and only through the employment exchange. 3. According to the petitioners, there were 17 posts of Grade III Librarian lying vacant in Theni District for the past 3 years. According to them, the said posts were not filled up and kept vacant without giving any promotion to the Village Librarians. According to them, the third respondent has prepared a District Level Seniority list of Village Librarians in Theni District for promotion to the post of Grade III Librarian. As per the said list of District Level Seniority by following communal rotation system, the first petitioner's name is found in S. No. 3 in the seniority list. The petitioners 2 to 7 are in S. Nos. 1, 2, 4, 5, 6 and 7. 4. According to the petitioners, the first respondent issued G.O.Ms. No. 175, School Education Department dated 20.8.2008, indicating that out of 345 vacancies in all the Districts, permission was granted to the Local Library Authority to meet out the funds for filling up 200 vacancies in the respective Districts. Therefore, according to the above G.O.Ms. No. 175 dated 20.8.2008, out of 17 vacancies in Theni District, 9 vacancies are to be filled up with the funds available with the Local Library Authority. It is their case that the petitioners being in S. Nos. Therefore, according to the above G.O.Ms. No. 175 dated 20.8.2008, out of 17 vacancies in Theni District, 9 vacancies are to be filled up with the funds available with the Local Library Authority. It is their case that the petitioners being in S. Nos. 1 to 7 in the District Level Seniority list, they are eligible to be absorbed by the third respondent with the power vested in him and from the funds of the Local Library Authority. 5. According to the petitioners, the first respondent thereafter issued an order in G.O.Ms. No. 60 School Education (K1) Department dated 18.2.2009, directing the authorities concerned to give priority to the Village Librarians while effecting promotion to the post of Grade III Librarian in the Districts. The second respondent herein, by virtue of the said order is said to have prepared seniority list of Village Librarians in all the Districts and sent the said list with the impugned order dated 19.2.2009, to the respective District Library Officers, including the third respondent herein for Theni District, directing him to communicate the same to the concerned Village Librarians for information and for submitting their objection within 7 days, if any, to the seniority list. In the absence of any objection from the concerned Village Librarians, it was informed that the said seniority list will become final. 6. According to the petitioners, immediately on the next day of the impugned order, the first respondent passed another impugned order dated 20.2.2009, directing the third respondent to promote the persons found in the seniority list prepared at the State Level in the pay scale of Rs. 3200-85-4900. 7. According to the petitioners, the impugned orders of the second respondent, which are contrary to the Government Orders and norms followed in the matter of promotion under the impugned orders have denied promotion to the petitioners who are otherwise eligible. 8. Challenging the impugned orders dated 19.2.2009 and the consequential order dated 20.2.2009, passed by the second respondent, the instant writ petition has been filed. 9. A counter affidavit has been filed by the third respondent, wherein, he has stated that the petitioners were temporarily appointed as Village Librarians on a consolidated pay of Rs. 1,500/- per month on the basis of separate agreements. According to him, the petitioners were appointed as Village Librarians by imposing 9 conditions in their respective appointment orders, only on temporary basis. 10. 1,500/- per month on the basis of separate agreements. According to him, the petitioners were appointed as Village Librarians by imposing 9 conditions in their respective appointment orders, only on temporary basis. 10. According to the third respondent, since the petitioners were appointed on temporary basis under separate agreements, by virtue of Rule 11 of the Tamil Nadu State and Subordinate Service Rules, they cannot be regarded as a member of the State Subordinate Service Rules and therefore, they are not entitled for any preferential claim to any other appointment in that service or any other service. 11. According to the third respondent, he is the Authority to fill up the vacant posts of Grade III Librarian as per the Adhoc Rules framed vide G.O.Ms. No. 60, Education Department dated 27.04.2006. It is his case that the petitioners are not belonging to the feeder category as per the Adhoc Rules framed to fill up Grade III Librarian in G.O.Ms. No. 60 dated 27.04.2006. As per this rule, Grade III Librarian posts are filled up (i) by giving promotion from the qualified persons from the post of Record Clerks and (ii) by transfer from any other service. 12. According to the third respondent, there is no Rule to recruit the petitioners who are only temporary Village Librarians with consolidated pay of Rs. 1,500 per month as Grade III Librarians. It is his case that all the seven petitioners are not regular employees in Government service. Therefore, according to him, all the Rules framed is for promotion of regular Government employees and not applicable to the petitioners. 13. According to the third respondent, the impugned Circular is a Policy Decision taken by the first respondent to draw a State Level Seniority list to fill up Grade III Librarians. According to the third respondent, the petitioners, who were appointed as Village Librarians on temporary basis, cannot challenge the decision of the first respondent. As per the impugned order, there is no Rule to promote them as Grade III Librarians. According to the third respondent, the Seniority list prepared and communicated by the second respondent was purely in accordance with the Policy Decision which was taken by the first respondent in G.O.Ms. No. 60 dated 18.2.2009. 14. As per the impugned order, there is no Rule to promote them as Grade III Librarians. According to the third respondent, the Seniority list prepared and communicated by the second respondent was purely in accordance with the Policy Decision which was taken by the first respondent in G.O.Ms. No. 60 dated 18.2.2009. 14. According to the third respondent, the second respondent has prepared the seniority list according to their date of joining as Village Librarians as per the first respondent's Policy Decision G.O.Ms. No. 175 dated 20.08.2008, to absorb them only one time as Grade III Librarians. 15. Heard, Mr. K. Appadurai, learned counsel for the petitioners and Mr. N. Shanmugaselvam, learned Additional Government Pleader for the respondents. 16. According to the learned counsel for the petitioners under Rule 4 of the Tamil Nadu State Subordinate Service Rules, only an appointing Authority has got the power to draw the seniority list. Since, according to them, the appointing Authority is the third respondent/District Library Officer, he alone has got the power to draw and publish the seniority list to absorb the Village Librarians as Librarians Grade III, on the basis of District Level Seniority alone. 17. The learned counsel for the petitioners drew the attention of this Court to G.O.Ms. No. 64 School Education (k1) Department dated 12.05.2006. According to him, as evident from para 4(2) of the aforesaid G.O. the vacant posts of Village Librarian and Librarian Grade III sanctioned to the Local Library Authority concerned have to be filled up on the basis of District Level Seniority maintained by the District Library Officer concerned. According to him, the vacant posts of Librarian Grade III have to be filled up by promoting Village Librarians on the basis of District Level Seniority maintained by the District Library Officer not by the State Level Seniority. 18. The learned counsel for the petitioners also referred to G.O.Ms. No. 243 School Education (k1) Department dated 27.11.2006 and submitted that as seen from para 5 (ii), the post of Village Librarian have to be absorbed as Librarian Grade III, on the basis of District Level Seniority maintained by the District Library Officer concerned. Therefore, according to him, the decision of the first and second respondents, to appoint Librarian Grade III on the basis of State Level Seniority list is illegal and bad in law. 19. Therefore, according to him, the decision of the first and second respondents, to appoint Librarian Grade III on the basis of State Level Seniority list is illegal and bad in law. 19. According to him, the impugned order dated 19.02.2009 issued by the first respondent has instructed that Village Librarians including the petitioners to send their objections to the State Level Seniority list prepared by the second respondent within 7 days. According to the petitioners, without giving any opportunity to the petitioners to object the impugned Seniority list dated 19.02.2009, on the very next day the second respondent issued the final impugned order dated 20.02.2009 to the third respondent directing him to issue the appointment orders based on the State Level Seniority list prepared by the second respondent. 20. According to the learned counsel for the petitioners, the second respondent arbitrarily followed the provisions of Tamil Nadu State and Subordinate Service Rules to absorb the Village Librarians from the State Level Seniority list issued by the second respondent as Librarians Grade III. It is also his case that the second respondent did not give 7 days opportunity to the petitioners to state their objections against the State Level Seniority list prepared by the second respondent. Therefore, according to the learned counsel for the petitioners, the impugned State Level Seniority list prepared by the second respondent is bias, illegal and ought to be set aside. 21. The learned Counsel for the petitioner also drew the attention of this Court to Rule 42 of the Madras Libraries Rules and submitted that the third respondent alone has got the powers to finalise the district level seniority and make appointments for Village Librarians in the district. 22. The learned counsel for the petitioners then drew the attention of this Court to the counter affidavit filed by the third respondent, wherein according to him, the third respondent has stated in many places that the petitioners were working as Village Librarians but did not work in the feeder category post of Record Clerk to promote them as a Librarian Grade III as per the Rule framed to fill up the Librarian Grade III in G.O.Ms. No. 60, School Education (K2) Department dated 27.04.2006. 23. No. 60, School Education (K2) Department dated 27.04.2006. 23. According to the learned counsel for the petitioners, the impugned State Level Seniority was issued for the post of Village Librarians and not for the feeder category post of Record Clerk to fill up the Librarian Grade III by the second respondent. 24. According to the learned counsel for the petitioners, the District Library Officer/third respondent is an appointing Authority to draw the seniority list under Rule 4 of the Tamil Nadu State and Subordinate Services Rules to fill up the vacant posts of Village Librarian and Librarian Grade III within his jurisdiction. Therefore, according to him, the second respondent is not an appointing Authority to the post of Village Librarian and Grade III Librarian to draw the State Level Seniority list. Therefore, according to him appointment made by the second respondent is in violation of Rule 4 of the Tamil Nadu State and Subordinate Services Rules. 25. According to the learned counsel for the petitioners, the second respondent has issued impugned State Level Seniority list beyond his jurisdiction vested with him as per Rule 4 of the Tamil Nadu State and Subordinate Services Rules and against the earlier decision of the first respondent through G.O.Ms. No. 64, School Education (K1) Department dated 12.05.2006 and G.O.Ms. No. 243 School Education (k1) Department dated 27.11.2006. Therefore, he seeks for a prayer to quash the impugned State Level Seniority list of Village Librarians issued by the second respondent and direct the third respondent to draw the District Level Seniority list of Village Librarians and to absorb the petitioners as Librarian Grade III with monetary and service benefits. 26. Per contra, the learned Additional Government Pleader for the respondents would submit that the petitioners were appointed as Village Librarians only on temporary basis. He referred to Rule 11 of the Tamil Nadu State and Subordinate Services Rules and submitted that the petitioners were appointed under separate agreements on temporary basis. In view of the Rule 11 (2) of the Tamil Nadu State and Subordinate Services Rules, the petitioners shall not be regarded as a member of the service in which the post to which they are appointed is included and shall not be entitled by reason only of such appointment to any preferential claim to any other appointment in that service or any other service. 27. 27. Further, he would submit that the third respondent is the Authority to fill up the vacant post of III Grade Librarians as per the Adhoc Rules framed vide G.O.Ms. No. 60 Education Department dated 27.04.2006. Further, he would submit that the petitioners are not belonging to the feeder category as per the Adhoc Rules framed to fill up Grade III Librarians in G.O.Ms. No. 60 dated 27.04.2006. According to him, as per the Rule Grade III Librarians post are filled up (1) by giving promotion from the qualified persons from post of Record Clerk, (2) by transfer from any other service. He referred to Rule 11(2) of the Tamil Nadu State and Subordinate Services Rules, wherein, it has been stated that “a person appointed under sub-rule (1) shall not be regarded as a member of the service in which the post to which he is appointed is included shall not be entitled by reason only of such appointment to any preferential claim to any other appointment in that service or any other service.” 28. According to the learned Additional Government Pleader, there is no Rule to recruit the petitioners, who are only temporary Village Librarians with a consolidated pay of Rs. 1,500/- per month as Grade III Librarians. Since the petitioners are not belonging to regular employees in Government service, the Rules framed by the second respondent for promotions only for regular Government employees is not applicable to the petitioners. 29. The learned Additional Government Pleader also submitted that as per the condition No. 7 of the respective agreements entered into with the respective petitioners at the time of their appointment, it was made clear that the petitioners cannot claim the benefit of regular Government employment as per the said agreement. Therefore, according to the learned Additional Government Pleader, the petitioners are not eligible persons for the promotion to the post of Grade III Librarian as per Adhoc Rules framed in G.O.Ms. No. 60 dated 27.04.2006 and 11 (2) Rule of part-II (General Rules) of Tamil Nadu State and Subordinate Services Rules. 30. According to the learned Additional Government Pleader, the Seniority list prepared and communicated by the second respondent under the impugned order dated 18.02.2009 was purely in accordance with the Policy Decision which was taken by the first respondent in G.O.Ms. No. 60 dated 27.04.2006. 31. 30. According to the learned Additional Government Pleader, the Seniority list prepared and communicated by the second respondent under the impugned order dated 18.02.2009 was purely in accordance with the Policy Decision which was taken by the first respondent in G.O.Ms. No. 60 dated 27.04.2006. 31. According to the learned Additional Government Pleader, the petitioners' grievance to promote them to the vacant post of Grade III Librarian is incorrect, because it is contrary to Adhoc Rules framed for promotion and transfer them as Grade III Librarians. According to the learned Additional Government Pleader, the promotion is applicable only for regular Government employees and not for temporary employees like that of the petitioners. Discussion: 32. Admittedly, the petitioners as Village Librarians are being paid on consolidated pay basis. This fact is also admitted in paragraph No. 9 in the affidavit filed in support of the Writ Petition wherein they have stated that they were employed in the post of Village Librarians on a consolidated pay of Rs. 1500/- for more than four years. Being appointed on consolidated pay basis, they cannot be termed as regular employees in Government Service. It is the stand of the respondents that the respective petitioners were appointed under separate contract of employment and they are not regular employees. 33. In their counter affidavit, the respondents have also stated under Condition No. 7 of the agreement entered into with the respective petitioners, it was clearly indicated that the respective petitioners cannot claim benefits that are available to regular Government employees. As per Rule 11 of the Tamil Nadu State and Subordinate Service Rules, whenever an appointment is made under an agreement the persons who are appointed shall not be regarded a member of the service in which the post to which he is appointed is included and shall not be entitled by reason only of such appointment to any preferential claim to any other appointment in that service or in other service. The Tamil Nadu State and Subordinate Service Rules, shall not apply to appointments made under an agreement. Rule 11 of the Tamil Nadu State and Subordinate Service Rules reads as follows: “11. The Tamil Nadu State and Subordinate Service Rules, shall not apply to appointments made under an agreement. Rule 11 of the Tamil Nadu State and Subordinate Service Rules reads as follows: “11. Appointment by agreement - (1) When in the opinion of State Government special provisions inconsistent with any of these rules or any other rules made under the proviso to Article 309 of the Constitution of India or continued by Article 313 of that Constitution (hereinafter referred to in this rule as the said rules) are required in respect of conditions of service, pay and allowances, pension, discipline and conduct with reference to any particular post, or any of them, it shall be open to the State Government to make an appointment to such post otherwise than in accordance with these rules or the said rules and to provide by agreement with the person so appointed for any of the matters in respect of which in the opinion of the State Government special provisions are required to be made and to the extent to which such provisions are made in the agreement, nothing in these rules or the said rules shall apply to any person so appointed in respect of any matter for which provision is made in the agreement: Provided that in every agreement, made in exercise of the powers conferred by this rule it shall further be provided that in respect of any matter in respect of which no provision has been made in the agreement the provisions of these rules or of the said rules shall apply. (2) A person appointed under sub-rule (1) shall not be regarded as a member of the service in which the post to which he is appointed is included and shall not be entitled by reason only of such appointment to any preferential claim to any other appointment in that service or any other service.” 34. The aforesaid Rule enables the State Government to make appointment otherwise than in accordance with the rules governing a post to meet any contingencies. It is open to the Government to make appointment on agreement under certain terms and conditions by both the parties with a view to meet any contingencies. Admittedly, the petitioners are also receiving only consolidated pay. Therefore, it can be conclusively inferred that they have been appointed only under an agreement. It is open to the Government to make appointment on agreement under certain terms and conditions by both the parties with a view to meet any contingencies. Admittedly, the petitioners are also receiving only consolidated pay. Therefore, it can be conclusively inferred that they have been appointed only under an agreement. The Tamil Nadu State and Subordinate Service Rules also enable the Government to make temporary appointments. Rule 10 deals with temporary appointments. It is the categorical stand of the respondents that the petitioners were appointed only on temporary basis. No document has been produced by the petitioners to prove that they are regular employees. Rule 10 (v) of the Tamil Nadu State and Subordinate Service Rules makes it clear that service of a person appointed temporarily in the public interest shall be liable to be terminated by the appointing authority at any time without any reason being assigned. It is also made clear that a person appointed on temporary basis shall not be entitled on such appointment to any preferential claim to future appointment to such service, class or category. 35. The Madras Public Libraries Act, 1948, which was referred to by the learned Counsel for the petitioner are not applicable to the facts of the instant case. The appointments made by the Secretary of the local library authority under Rule 42(2) of the Madras Public Libraries Rules are all temporary appointments. Rule 42(2) of the Madras Public Libraries Rules reads as follows: “42(2) The duties of the Secretary of the Local Library Authority shall be as follows:- The Secretary of the Local Library Authority shall be the convenor for the meetings of the said Authority. He shall also be responsible for the appointment of the staff, proper control and supervision of the office of the Local Library Authority including its fund and shall sign cheques if authorized by the Chairman under rule 24 in chapter III.” 36. The petitioners were also appointed only under the aforesaid rules as Village Librarians and they are not regular employees. Therefore, as rightly contended by the learned Additional Government Pleader for the respondents, the petitioners being appointed as Village Librarians on temporary basis cannot challenge the decision of the first respondent. 37. Under G.O.Ms. No. 60, Education Department dated 27.04.2006, the third respondent is the authority to fill up the vacant post of Grade-III Librarian. Therefore, as rightly contended by the learned Additional Government Pleader for the respondents, the petitioners being appointed as Village Librarians on temporary basis cannot challenge the decision of the first respondent. 37. Under G.O.Ms. No. 60, Education Department dated 27.04.2006, the third respondent is the authority to fill up the vacant post of Grade-III Librarian. The petitioners who were appointed only on temporary basis on a consolidated pay do not belong to the feeder category as per the Adhoc Rules framed to fill up Grade-III Librarian in G.O.60 dated 27.04.2006. As per this Rule, Grade-III Librarian posts are filled up by: (i) By giving promotion from the qualified persons from the post of Record Clerks. (ii) By transfer from any other service. 38. The second respondent has prepared the seniority list as per G.O.Ms. No. 175 dated 20.08.2008. Being only appointed on temporary basis and not approved candidates as per Rule 4 of the Tamil Nadu State and Subordinate Services Rules, the petitioners are not entitled to challenge the impugned seniority list. Even under the respective contracts of employment, it was made clear to the petitioners under the conditions imposed therein that they are not entitled for any preference in the future and they have been appointed only on part time basis. This being the case, the petitioners who are not eligible for promotion as Grade – III librarians are not entitled to challenge the impugned seniority list. The Division Bench judgment of the Madras High Court relied upon by the learned Counsel for the petitioner in the case of the Director of Public Libraries Vs. T.Arivarasu Pandian, is not applicable to the facts of the instant case as it relates to transfer and not with regard to eligibility to be promoted as Grade-III Librarians. 39. For the foregoing reasons, this Court is of the considered view that there is no merit in this Writ Petition. Accordingly, the Writ Petition is dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.