IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22-04-2010 CORAM : THE HONOURABLE MR. JUSTICE B. RAJENDRAN W.P. No. 21497 of 2006 J.M. Gandhimathi Assistant Curator (Zoology Section) Government Museum Madras – 8 .. Petitioner Versus 1. The State of Tamil Nadu rep. by the Secretary to Government Department of Tamil Development and Culture Fort St. George, Madras - 9. 2. The Commissioner, Government Museum, Egmore, Madras – 8. 3. Sekar 4. Karunanidhi .. Respondents O.A. No. 203 of 1997 filed under Article 226 of the Constitution of India, before the Tamil Nadu Administrative Tribunal stood transferred to this Court, which was filed praying to call for the records of the second respondent in his proceedings No.3979/96/E2 dated 17.09.1996 and quash the same as illegal in so far as the respondents 3 and 4 are concerned and direct the respondents 1 and 2 to place the applicant in the seniority list above the respondents 3 and 4 and promote from the date on which the respondents 3 and 4 were promoted with all attendant benefits. For Petitioner : Mrs. A. Arulmozhi For Respondents : Mrs. Lita Srinivasan Government Advocate for RR1 and 2 Mr. R. Singaravelan for R3 Mr. K.K. Ananthapadmanabhan for R4 ORDER The petitioner was appointed as Curator by the proceedings of the first respondent dated 23.07.1993. The petitioner was recruitted through Tamil Nadu Public Service Commission on the basis of an examination conducted in the year 1992. The petitioner was placed on probation from 30.07.1993 and her probation was declared on 29.07.1995. In the meantime, the petitioner applied for promotion to the post of Curator from the cadre of Assistant Curator on 23.05.1994, which is a promotional post. The representation sent by the petitioner was not responded to. In the meantime, the third and https://hcservices.ecourts.gov.in/hcservices/ fourth respondents, who were initially appointed under Rule 10 (a) (i) of the Tamil Nadu State and Subordinate Service Rules, were promoted on 13.07.1994 and 19.09.1994 respectively. For the purpose of granting promotion, the date of joining of the respondents 3 and 4 namely 25.10.1988 and 01.11.1989 and their date of declaration of probation namely 03.11.1990 and 22.07.1993 respectively were taken into consideration. Yet another candidate namely Prema Deeparani, who was a candidate appointed through Tamil Nadu Public Service Commission, has completed her probation on 31.08.1992. According to the petitioner, only after her application seeking promotion to the post of Curator, which was lying vacant at the relevant point of time , the respondents 1 and 2 have promoted the respondents 3 and 4 as Curators. Therefore, according to the petitioner, promotion was given to the respondents 3 and 4 only to deprive her lawful claim. Under those circumstances, on 30.05.1996, the petitioner has submitted a representation to the respondents 1 and 2 questioning the promotion given to the respondents 3 and 4, as Curators, for which an order dated 17.09.1996 was passed by the second respondent rejecting her claim stating that the probation period of the respondents 3 and 4 was declared much prior to the date when the applicant joined the service, but the date of declaration of probation of the respondents 3 and 4 was not mentioned in the impugned order. Therefore, challenging the order dated 17.09.1996 of the second respondent, the petitioner has filed O.A.No. 203 of 1997 before the Tribunal. On abolition of the Tribunal, the matter stood transferred to this Court and re-numbered as WP No. 21497 of 2006. 2. The petitoner would contend that earlier the post of Curator fell vacant on 06.09.1993 and 15.09.1993. If really the respondents 3 and 4 have completed their probation on 03.11.1990 and 22.07.1993, they could have been promoted to the post on 06.09.1993 and 15.09.1993 respectively, whereas their juniors Periyasamy and Balasubramaniam were appointed on 10.02.1989 and on 14.06.1989 respectively and therefore the theorey putforth by the respondents 1 and 2 for denying promotion to the petitioner is unsustainable in law. According to the petitioner, she was a directly recruitted candidate through the Tamil Nadu Public Commission in a regular vacancy and the respondents 3 and 4 were initially appointed under 10 (a) (i) of the Tamil Nadu State and Subordinate Service Rules through employment exchange and therefore their prior service can be taken into consideration only for the purpose of granting increments etc., and not for seniority. Therefore, when the petitioner was appointed on 23.07.1993, even though the respondents 3 and 4 were working at that time, dehors their earlier appointment, the petitioner is entitled to get promotion earlier than the respondents 3 and 4. Furthermore, the declaration of probation of the respondents 3 and 4 has been given with retrospective effect, which is legally not sustainable. 3. The second respondent has filed a reply affidavit in which the date of appointment of the petitioner, respondents 3 and 4 and the date of their declaration of probation were not disputed. According to the second respondent, the petitioner was not considered for promotion to the post of Curator in May 1994 in view of the fact that the persons who have joined earlier than her were available at that time. Further, the third and fourth respondents were appointed https://hcservices.ecourts.gov.in/hcservices/ through employment exchange as Assistant Curator and they joined on 25.10.1988 and 01.11.1989 respectively. As per Rule 31 and 35 (a) of Tamil Nadu State Subordinate Service Rules and according to service seniority, the respondents 3 and 4 were rightly promoted to the post of Curators. It is contended that when vacancy arose in the year 1993, the third and fourth respondents were not considered for promotion due to administrative reasons. Even though the third and fourth respondents were appointed through employment exchange under Rule 10 (a) (i), as the post held by them do not come under the purview of the Tamil nadu Public Service Commission, their services were regularised by the Head of the Department, who is competent and empowered to regularise their service. It is also stated that the seniority of Curators will be revised among all the persons such as Curator, Assistant Curator and Gallery Guides according to their service seniority and as soon as the Government was received in respect of Dr. V. Jeyaraj and P. Kasilingam. 4. The third respondent has filed reply affidavit contending that he was appointed under a special recruitment drive on 25.10.1988 and completed his probation on 03.11.1990. The post of Curator is a special post created to upgrade children museum as per G.O. Ms. No. 206 dated 02.09.1996. As per G.O. Ms. No.314, Tamil Development and Culture Department dated 21.09.1989, a notification was issued framing Adhoc Rules to temporarily post Assistant Curator, Gallery Guide and Craftsman in Children's Museum, Madras by which the Head of the Department is empowered to promote a person as per seniority list. Furthermore, as per Rule 31 and 35 (a) of Tamil Nadu State and Subordinate Service Rules, persons who have completed their probation period will be appointed to higher post and accordingly, he was promoted as Curator. The main contention of the third respondent was that even though he was appointed under Rule 10 (a) (i), the post of Assistant Curator does not come under the purview of the Tamil Nadu Public Service Commission and therefore also, his services can be regularised by the Head of the Department, who has got powers. Whereas, the petitioner joined the service only on 23.07.1993 and completed her probation on 29.07.1995 and therefore the petitioner could not even be considered for promotion in the year 1994. Whereas, the respondents 3 and 4 were appointed on 25.10.1988 and 01.11.1989 and got their promotion on 13.07.1994 and 19.09.1994 respectively which is legally valid and sustainable. 5. Though the fourth respondent was duly served and represented by a counsel, no counter has been filed. 6. Heard the counsel for both sides. The petitioner, who is a direct recruitee through Tamil Nadu Public Service Commission has joined as Assistant Curator on 23.07.1993. According to the petitioner, the respondents 3 and 4, even though have joined as Assistant Curator on 25.10.1988 and 01.11.1989 respectively, ought not to have been given promotion as Curator by bye-passing a direct recruitee. According to the petitioner, pursuant to a notification issued by the Tamil Nadu Public Service Commission in the year 1992, she participated in the selection process and after complying with all the pre-selection process, she was appointed on 23.07.1993 and her probation was also declared on 29.07.1995. While so, in the year 1994, vacancy arose for promotion to the post of Curator in which the https://hcservices.ecourts.gov.in/hcservices/ respondents 3 and 4, who were only 10 (a) (i) appointeees through employement exchange, have been promoted by overlooking the claim of the petitioner for such promotion. According to the petitioner, only after considering her claim for promotion, the respondents 1 and 2 ought to have promoted the respondents 3 and 4 as Curator, but by virtue of an order dated 19.07.1995, the fourth respondent was declared to have completed probation on 22.07.1993 retrospectively, which is illegal. Further, the third respondent was also declared to have completed his probation as early as on 30.11.1990. Therefore, both of them were promoted to the post of Curator on 11.07.1994. Since admittedly the fourth respondent's probation has been given retrospectively, which has been done only to deprive the legal right of the petitioner to get promotion to the post of Curator, the impugned order is legally not sustainable. 7. Contra, the learned Government Advocate for the respondents 1 and 2 as well as the learned counsel for the third respondent specifically pleaded that the post itself was not coming under the purview of the Tamil Nadu Public Service Commission and therefore the impugned order is sustainable. In this connection, they relied on the communication of the Under Secretary, Tamil Nadu Public Service Commission to the Assistant Director of Museum in Letter No. 5490/RND-C3/95 dated 09.10.1995 wherein it was categorically stated by the Tamil Nadu Public Service Commission that the post of Assistant Curator and Gallery Guide in the Children Museum do not fall within the purview of the Commission. In fact, an earlier communication dated 13.05.1994 of the Commissioner of Museum addressed to the Government of Tamil Nadu, Tamil Development Culture Department was also relied on. Furthermore, it was brought to the notice of this Court that G.O. Ms. No.277 dated 18.11.1997 was issued under which the post of Assistant Curator and Gallery Guides in Children Museum was classified as technical and amendment was brought into the Tamil Nadu Public Service Commission Regulation 1994 to include those posts under the purview of the Tamil Nadu Public Service Commission. This came into force from 18.11.1997. Whereas, the respondents 3 and 4 were promoted even on 11.07.1994, their services have been duly regularised by the earlier order and therefore the petitioner cannot question their promotion. 8. The third respondent would contend that he was actually regularised on 30.11.1990 but the petitioner was not even appointed by then. Therefore, the petitioner cannot have any grievance at all as far as the promotion of the third respondent is concerned. Even the fourth respondent is concerned, though the probation of the fourth respondent was declared in the year 1995, yet retrospectively, his probation has been declared with effect from 27.07.1993, which is also prior to the date of the petitioner joining the service. Therefore, admittedly on the date of joining of service by the petitioner, the respondents 3 and 4 have completed their probation. Since the post held by the respondents 3 and 4 did not come within the purview of the Tamil Nadu Public Service Commission, the Department has got every right to regularise their service and even give promotion, which cannot be challenged by the petitioner, who has been appointed through the Tamil Nadu Public Service Commission subsequently. It is further contended by the third respondent that the Original Application itself is not maintainable in view of the https://hcservices.ecourts.gov.in/hcservices/ fact that the respondents 3 and 4 have been promoted even on 11.07.1994 and the petitioner has made representation to consider her name for promotion for the first time on 30.05.1996. Therefore, when admittedly the petitioner was aware of the promotion given to the respondents 3 and 4 in the year 1994, the representation made by the petitioner on 30.05.1996 is clearly barred under law and the failure on the part of the petitioner to challenge the order of promotion within one year is contrary to Section 21 of the Tamil Nadu Administrative Tribunals Act and consequently, the Original Application filed by the petitioner before the Tribunal is not at all maintainable. The petitioner having completed her probation only on 29.07.1995 and appointed only on 30.07.1993 stands in a different footing and she cannot question the promotion given to the respondents 3 and 4 at this point of time. 9. The learned counsel for petitioner relied on the decision of Division Bench of this Court reported in (P. Perumal vs. A.V. Suresh Babu and others) 2007 4 MLJ 160 to say that temporary services of the respondents 3 and 4 under 10 (a) (i) can be counted only for the purpose of increments and probation only and not for seniority. In Para No.20 of the decision, it was held as follows:- "20. In V. Sreenivasa Reddy and others vs. Government of A.P. And others (1995) Supp (1) SCC 572, the Apex Court has held:- "It is now well settled law that appointment/promotion must be in accordance with the Rules, direct recruitee takes his seniority from the date on which he starts discharging the duty of the post borne on the cadre while the duty of the post borne on the cadre while a temporary appointee appointed de hors the rules or on adhoc basis or to a fortuitous vacancy gets seniority from the date of regular appointment." 10. In the above said Ruling, it has been clearly held that the Court is not dealing with the question of regularisation, but only fixing the seniority. The Division Bench has held that the services rendered in temporary post is available either for earning increment or fixation of probation and not for granting seniority with retrospective effect. 11. The learned counsel for the petitioner also relied on the decision of the Honourable Supreme Court reported in (AFHQ/ISOs Sos (DP) Association and others vs.Union of India and others) 2008 3 SCC 31 to say that determination of seniority in respect of direct recruitee versus promotees would be on the basis of quota prescribed for direct recruitees and promotees. The continuous officiation on temporary basis outside a persons quota, then the seniority of direct recruitees and promotees is to be determined from the date of their respective appointment to the substantive vacancies in terms of Schedule III within their quota. In the said case, the Honourable Supreme Court decided the dispute in respect of personnel belonged to Armed Force where the quota system is being followed. In Para No.45 of the said decision, it has been held as follows:- "45. The majority view of this Court was that where there is inaction on the part of the https://hcservices.ecourts.gov.in/hcservices/ Government or employer or imposed ban on direct recruitment in filling up the posts meant for direct recruits, it cannot be held that the quota has broken down. We, with respect, do not support the view of the learned Judges that in the facts and circumstances of the case the quota has not broken down because of inaction on the part of the Government in imposing ban in filling up the posts meant for direct recruits. The appellants in the said case were promoted in a regular manner having been regularised in service with retrospective effect. Their services were not regularised from the date of their initial ad hoc promotion but with effect from the date when the vacancies became available. Their services after regularisation would not be by way of a stopgap arrangement. The direct recruits who were appointed in the years 1990 and 1991, in terms of Item 3 of Annexure ‘A’ would be considered to have been appointed only after their successful completion of training. They were borne in the cadre in the years 1990-1991 and, thus, prior thereto they cannot claim seniority. The learned third Judge, dissenting with the learned two Judges, has held that the direct recruit can claim seniority from the date of his regular appointment, but he cannot claim seniority from a date when he was not borne in the service. Thus, the direct recruits of 1990 and 1991, by reason of the impugned seniority list, could not have been placed over and above the appellant promotees because the purported quota-and-rota rule contained in Item 3 of Annexure ‘A’ could not have been given effect to because the State Government had imposed total ban on direct recruitment from the years 1977 to 1988. In such a situation, the said quota rule became inoperative. We agree with the dissenting view of the learned Judge that in the facts of the case, the quota rule became inoperative because the direct recruits were borne in the cadre when they were appointed against the vacancies meant for them. Therefore, the majority view in M. Subba Reddy is of no assistance to the AFHQ Civil Service (Direct Recruits) Officers’ Association as the relative seniority between the direct recruits and regularly appointed/promoted candidates within their respective quota, in the present case, shall be determined by the length of the continuous officiation in the grade of ACSOs from their respective appointment to the substantive vacancies in terms of Schedule III within their quota as held by CAT in M.G. Bansal case, which has attained finality after dismissal of SLPs filed against the said order of the Tribunal. https://hcservices.ecourts.gov.in/hcservices/ 12. The learned counsel for the petitioner further relied on the decision reported in K. Madalaimuthu and another v. State of Tamil Nadu and others (AIR 2006 Supreme Court 2662) to say that the service of the person who was temporarily promoted without recourse to Rules of recruitment cannot be counted for reckoning seniority. Further, only from the date on which his services are regularised, from that date only, such appointee can count his seniority in the cadre. In Para Nos. 24 to 26 of the said judgment, it was held 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. 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. https://hcservices.ecourts.gov.in/hcservices/ 26. We, therefore, set aside the order passed by the High Court and direct the respondents concerned to redetermine 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. 13. It is brought to the notice of this Court by the learned counsel for the third respondent that G.O. Ms. No. 314 dated 21.09.1989 was issued wherein the Government has framed adhoc Rules for the Children Museum, Madrs for the post of Assistant Curator, Gallery Guide and Craftsman. In the said Government Order, in clause 3, it was stated that appointment shall be made by direct recruitment or by transfer from another cadre or category or recruitment by transfer from any other service. In clause 6, it was stated that every person appointed to the posts by direct recruitment shall from the date on which he joins duty be on probation for a total period of two years on duty within a continuous period of three years. Therefore, according to the respondents 3 and 4, they were appointed in the year 1988 and 1989 respectively and as per the said Government Order, the Government has powers to appoint them and therefore, it was contended that though they were originally appointed by invoking Rule 10 (a) (i), their appointment is based on Rule. Therefore, the direct recruitees cannot be permitted to take a march over them especially in view of the fact that the post itself was outside the purview of the Tamil Nadu Public Servidce Commission. 14. As per G.O. Ms. No. 227, Tamil Development and Cultural Department dated 19.11.1997, the post of Assistant Curator and Gallery Guide in Children museum was classified as technical one and as per the amendment to the Tamil Nadu Public Service Commission's Regulation Act, they came into force only on 18.11.1997. In view of the fact that the services of the respondents 3 and 4 have been regularised even before the appointment of the petitioner, the petitioner cannot have any grievance. 15. The decision relied on by the learned counsel for the petitioner reported in (AFHQ/ISOs Sos (DP) Association and others vs.Union of India and others) 2008 3 SCC 31 is not applicable to the facts of the case on hand because in that case, there was a quota system was in vogue in respect of direct recruitees and promotees. But in the case on hand, there is no such quota system is in existence as the Tamil Nadu Public Service Commission was not involved in the selection process of the respondents 3 and 4 especially when the post itself was not under the purview of the Tamil Nadu Public Service Commission. 16. No doubt, the respondents 3 and 4 in this case cannot be considered for seniority till their services have been regularised and the period under which they worked as 10 (a) (i) appointees https://hcservices.ecourts.gov.in/hcservices/ cannot be counted. First of all, in this case, the respondents 3 and 4 cannot be called as 10 (a) (i) appointees as they have been appointed through a special recruitment drive as