IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.01.2011 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.40861 of 2006 (O.A.No.7415 of 2000) S.SANKARA KUMARASAMY PANDIAN [ PETITIONER ] Vs 1 THE DISTRICT COLLECTOR SALEM DIST SALEM. 2 THE SPECIAL COMMISSIONER AND COMMISSIOENR FOR REVENUE ADMINISTRATION CHEPAUK CHENNAI-5 3 R.GOPAL 4 P.MUNUSWAMY 5 P.PALANIAPPAN 6 M.A.MOHAN ..RESPONDENTS Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Mandamus directing the respondents to call for the records in pursuant to the impugned approved panel for the year 1998 issued by the 1st respondent in his proceedings R.O.C. Pdl.30/98 (A2) dated 8.7.1999 and direct the 1st respondent to include the name of the petitioner in the above said panel and place the petitioner above R.Gopal and below V.Anguraj and consequently promote the petitioner to the post of Deputy Tahsildar For Petitioner :: Mr.K.Sanjay for Mr.P.Gurunathan For Respondents :: Mr.R.Murali, G.A. (R1-2) No appearance for (R3-6) O R D E R The petitioner is working as an Assistant in the Taluk Office at Sangagiri, Salem District. He filed O.A.No.7415 of 2000 challenging the approved list of Deputy Tahsildars prepared for the year 1998 issued by the 1st respondent District Collector, Salem dated 8.7.1999. The panel comprised of 16 Assistants who are likely to be promoted as Deputy Tahsildar. https://hcservices.ecourts.gov.in/hcservices/ 2. In the Original Application, Notice of Motion was ordered on 11.10.2000. In view of the abolition of the Tribunal, the matter stood transferred to this Court and renumbered as W.P.No.40861 of 2006. In the Original Application, the petitioner has impleaded the respondents 3 to 6 as alleged juniors, whose names were included in the panel. But, neither before the Tribunal nor before this Court, any efforts were taken to serve those contesting respondents. 3. The Writ Petition is liable to be dismissed solely on the ground that the contesting respondents have not been served till date. The Supreme Court vide its judgment in Suresh vs. Yeotmal District Central Cooperative Bank Limited and another reported in (2008) 12 SCC 558 has held that for non-joinder of parties in the matter of seniority, no dispute can be adjudicated. 4. Even otherwise, the grievance of the petitioner as projected in the Original Application was that the District Collector proposed a panel for the post of Deputy Tahsildar dated 25.1.1999. The panel had four annexures. Annexure 1 related to general turn candidate. Annexure 2 relates to Backward Class Community. Annexure 3 relates to M.B.C. Annexure 4 relates to the Schedule Caste Community. But, however, when the impugned panel was finalised by order dated 8.7.1999, it comprised of 16 candidates. Out of 16 candidates, Serial No.9 Thiru S.Thiruvarangan and Serial No.13 Thiru R.Gopal belong to M.B.C. But, when the State Government had reserved 20% of the vacancies to be filled up by M.B.C. Community, the petitioner could not make a point that the panel contained only two candidates, whose names were found in the Annexure 3 for M.B.C. Therefore, the preparation of the panel by excluding reservation of 20% of reservation M.B.C was invalid. 5. On notice from the Tribunal, the 1st respondent District Collector filed a counter affidavit dated 3.4.2002. In the counter affidavit, it was stated that the petitioner did not come within the zone of consideration and therefore his name was not included in the list. It was also stated that there cannot be a further immediate classification between members belong to M.B.C/Denotified Community, as both the communities comes under the same caption. Therefore, in paragraph 13, it was stated that 20% reservation is for both M.B.C as well as De-notified tribes. Hence, the petitioner's contention that when the first turn comes for M.B.C turn, the next turn should be De- notified Tribes cannot be accepted. 6. Even otherwise, this Court vide its judgment in Registration Department, S.C./S.T. and M.B.C. Employees' General Welfare Sangam Vs. S.Chandrasekar and others reported in 2005 (2) CTC 36 held that https://hcservices.ecourts.gov.in/hcservices/ in the matter of promotion, there has been no reservation under Article 16(4-A) and such reservation will be invalid. In paragraph 20, it was observed as follows: "20. In the light of the above discussion, we are in agreement with the conclusion arrived at by the Tribunal. We are satisfied that Assistants belonging to Backward class and Most Backward class cannot claim reservation in the matter of higher post of Sub- Registrar Grade II/ACTO/Deputy Tahsildar without violating the guaranteed fundamental right of equality enshrined in Article 16(1) of the Constitution. We also hold that since Assistants who are appointed as Sub-Registrar Grade II/ACTO/Deputy Tahsildar get the appointment to the higher post above the post of initial requirement, such appointment is promotion, consequently reservation is not permissible in such appointments. Any provision to the extent it applies to the rule of reservation for appointment is not valid and unconstitutional after five years from the date of judgment in Indira Sawhney's case. We also hold that the reservation of appointments or post under Article 16(4) is confined to initial appointment only and cannot extend to provide reservation in the matter of promotion. If the Government feels that for ensuring adequate representation of Backward class of citizens in any service, class/category, it is necessary to provide for direct recruitment herein, it shall be open to do so. But the reservation in the matter of promotion was permitted for the period of 5 years from the date of judgment i.e., from 16.11.1992 to 15.11.1997. As rightly pointed out by the learned counsel for the respondents all the ingredients of the meaning of "promotion" in Rule 13 are found and only the method is by way of recruitment by transfer in the same Department with higher scale of pay and all the norms of promotion are followed while appointments are made. Therefore, in the case on hand, the "recruitment by transfer" in all these cases in the same Department is deemed to be the "promotion" and for which the rules of reservation does not apply". https://hcservices.ecourts.gov.in/hcservices/ In view of the above, no case is made out. Accordingly, the Writ Petition stands dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ajr To 1 THE DISTRICT COLLECTOR SALEM DIST SALEM. 2 THE SPECIAL COMMISSIONER AND COMMISSIOENR FOR REVENUE ADMINISTRATION CHEPAUK CHENNAI-5. 1 cc To The Government Pleader, SR.4501. W.P.No.40861 of 2006 MDR(CO) RVL 07.02.2011 https://hcservices.ecourts.gov.in/hcservices/