IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.10.2009 CORAM The Hon'ble Mr. Justice K.CHANDRU W.P.No.14086 of 2006 P.S.Jeganathan .. Petitioner Vs. 1.State of Tamil Nadu rep. by Secretary to Government, Agriculture Department, Fort St. George, Chennai – 9. 2.The Chief Engineer (Agricultural Engineering), Chennai – 35. .. Respondents Petition filed under Article 226 of The Constitution of India praying to issue a writ of certiorarified mandamus to call for the records of the second respondent herein in Lr.No.GEP.4/44598/97 dated 01.04.1998, quash the same and issue consequential directions to the respondents to refix the seniority of the petitioner in the post of Assistant Engineer (Agricultural Engineering) with reference to the date of his initial appointment as such i.e. 16.11.1979 and to grant consequential service and monetary benefits. For petitioner .. Mr.N.Kannan For respondents .. Mr.R.Neelakandan, Govt. Advocate ORDER The petitioner who was working as Assistant Engineer (Agricultural Engineering) in the office of Assistant Executive Engineer (Agricultural Engineering), Soil Conservation Scheme, Erode filed O.A.No.6928 of 1998 before the Tamil Nadu Administrative Tribunal seeking to set aside the order dated 01.04.1998 passed by the second respondent. The said order came to be passed by the second respondent pursuant to the petitioner got a direction from the Tribunal in O.A.No.3175 of 1997. https://hcservices.ecourts.gov.in/hcservices/ 2.The Tribunal by its order dated 09.05.1997 directed the second respondent to consider the petitioner's claim for refixation of seniority in the category of Assistant Engineer (Agricultural Engineering) selected by the TNPSC by taking into account the temporary service put in by the petitioner. The second respondent by the impugned order rejected the request of the petitioner by communicating the views of the Government that the seniority of the Assistant Engineer (Agricultural Engineering) selected by the TNPSC in 1982-83 cannot be revised by taking into account the past temporary service. Therefore, the petitioner's case was rejected. The petitioner challenges the said order by filing O.A.No.6928 of 1998 before the Tamil Nadu Administrative Tribunal. 3.On notice from the Tribunal, the respondents have filed a reply affidavit dated 12.02.2001, justifying the impugned order. 4.In view of the abolition of the Tribunal, the matter stood transferred to this Court and renumbered as W.P.No.14086 of 2006. 5.Mr.N.Kannan, learned counsel appearing for the petitioner stated that the petitioner had qualification and also temporarily served and that cannot be wiped out by the rejection of his request and Rule 35 provides for a retrospective regularisation from the date of engagement. The petitioner having joined duty on 16.12.1979 must be given the benefit of the past service. The learned counsel fairly admitted that the petitioner also underwent the said qualifying examination conducted by the TNPSC during the year 1983 and in that examination, he was successful. But, however, in the ranking given by the TNPSC, he was not given higher seniority and therefore, he is forced to come up with the present petition. The learned counsel also referred to certain correspondence between the TNPSC and the Government with reference to the practical difficulties in denying the consideration of past service. 6.A perusal of the order of regularisation given to the petitioner, which is found in page 58 of the typed set of papers, clearly shows that the petitioner was appointed subsequent to the selection by the TNPSC for the selection held for the year 1982-84. Therefore, it is clearly stated that once the seniority is assigned by the TNPSC, no further request for any alteration of seniority will be entertained and that the petitioner should complete the two year probation within a period of three years. In para 3 of the said order, it is stated that in terms of Rule 23(a)(ii) of the General Rules, since their regularisation was done on earlier date, they will get the arrears of pay fixation. Having accepted such an appointment, it is not open to the petitioner to seek for a revision of seniority list. However, the learned counsel placed reliance on the judgment of the Supreme Court in G.P.Doval and Others Vs. Chief Secretary, Govt. of Uttar Pradesh and Others (AIR 1984 SC 1527). The reliance was based upon para 15, which reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "15.Now if there was no binding rule of seniority it is well-settled that length of continuous officiation prescribes a valid principle of seniority. The question is from what date the service is to be reckoned? It was urged that any appointment of a stopgap nature or pending the selection by Public Service Commission cannot be taken into account for reckoning seniority. In other words, it was urged that to be in the cadre and to enjoy place in the seniority list, the service rendered in a substantive capacity can alone be taken into consideration. We find it difficult to accept this bald and wide submission. Each case will depend upon its facts and circumstances. If a stopgap appointment is made and the appointee appears before the Public Service commission when the latter proceeds to select the candidates and is selected, we see no justification for ignoring his part service. At any rate, thre is no justification for two persons selected in the same manner being differently treated. That becomes crystal clear from the place assigned in the seniority list to petitioner No.1 in relation to respondent No.7. In fact if once a person appointed in a stopgap arrangement is confirmed in his post by proper selection, his past service has to be given credit and he has to be assigned seniority accordingly unless a rule to the contrary is made. That has not been done in the case of all the petitioners. The error is apparent in the case of petitioner 1 and respondent No.7. These errors can be multiplied but we consider it unnecessary to do so. In fact a fair rule of seniority should ordinarily take into account the past service if the stopgap arrangement is followed by confirmation............................................... ... It is thus well settled that where officiating appointment is followed by confirmation unless a contrary rule is shown, the service rendered as officiating appointment cannot be ignored for reckoning length of continuous officiation for determining the place in the seniority list. Admittedly, that has not been done and the seniority list is drawn up from the date on which the approval/selection was made by the Public Service Commission in respect of each member of the service, which is clearly violative of Art.16 and any seniority list drawn up on this invalid basis must be quashed." 7.However it must be noted that with reference to the special rules of this State itself, the Supreme Court in more than one judgment, has laid down the law relating to the subject. Those judgments are once again reviewed by the Supreme Court in a recent decision in M.P.Palanisamy and Others Vs. A.Krishnan and Others ((2009) 6 SCC 428). In para 45 to 47, it has been stated as follows: https://hcservices.ecourts.gov.in/hcservices/ "45. In para 14, this Court observed: (Paripoornam case (1992 Supp (1) SCC 420) "14.Apart from that, Rule 10(a)(i) (1) provides for making of temporary appointments when it is necessary in the public interest to do so owing to an emergency which has arisen for filling a vacancy immediately. Such appointments are made otherwise than in accordance with the procedure prescribed under the Rules. In the instant case the respondents were appointed temporarily and otherwise than in accordance with the Rules. They were later selected along with others for direct recruitment by the Public Service Commission. They were not entitled to count their temporary service for seniority. In A.P.M.Mayankutty Vs. Secretary (1977 2 SCC 360) this Court observed that the services rendered by the applicants under Rule 10(a)(i)(1) cannot be considered for the purpose of seniority as such appointment is a matter of stop-gap, emergency or fortuitous arrangement." 46.Earlier, in para 13, referring to Rule 35(a), according to which the seniority is fixed, the Court proceeded to observe: (Paripoornam case) "13.....The services rendered in the temporary post is available either for earning increments or for commencement of probation. That would be clear from Rule 23(a). Consistent with the Rule 23(a), the Government in the order of regularisation has directed that the incumbents are eligible for incrementd from the date of their regularisation as they are fully qualified to hold the post on that date. The increments already sanctioned to them during their services as temporary Junior Professors prior to regular appointment has been ratified by the said order. The High Court was plainly in error in ignoring the statutory rules and the terms and conditions of the order of regularisation of services." (emphasis supplied) The emphasised portion, undoubtedly, presents out a clear position that the language of the GOMs, offering regularisation, is of utmost importance. Therefore, it is clear that the second condition will have to stay as it is. https://hcservices.ecourts.gov.in/hcservices/ 47.In a recent decision in K.Madalaimuthu Vs. State of Tamil Nadu (2006 6 SCC 558) this Court again reiterated the principles of fixation of seniority in case of the persons, who were temporarily appointed under Rule 10(a)(i) (1). This Court relied on V.Sreenivasa Reddy Vs. Govt. of Andhra Pradesh (1995 Supp (1) SCC 572), as also, State of Tamil Nadu Vs. E.Paripoornam (1992 Supp (1) SCC 420). Both these cases dealt with Rule 10(a)(i)(1). Distinguishingly, relying upon the case law relied on by the respondents i.e. L.Chandrakishore Singh Vs. State of Manipur (1999 8 SCC 287) this Court came to the conclusion that the High Court had erred in holding that the temporary appointees under Rule 10 (a)(i)(1) were entitled to the seniority right from the date of their first appointment and not from their regularisation. Though the controversy involved is slightly different, the general principles would undoubtedly apply." 8.In the light of the binding precedent laid down by the Supreme Court, no infirmity can be found in the order passed by the Government, which is impugned in this writ petition. Accordingly the writ petition shall stand dismissed. No costs. mmi Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar To 1.The Secretary to Government, of Tamil Nadu Agriculture Department, Fort St. George, Chennai – 9. 2.The Chief Engineer (Agricultural Engineering), Chennai – 35. + 1 cc to the Government Pleader SR.52141 + 1 cc to Mr.N. Kannan, Advocate SR.51453 W.P.No.14086 of 2006 NG(CO0 EU 20.10.2009. https://hcservices.ecourts.gov.in/hcservices/