IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:09.11.2011 Coram: THE HONOURABLE MR. JUSTICE T.S.SIVAGNANAM W.P. No.24393 of 2001 1.Prakash Rao 2.N.Ravi .. Petitioners vs. 1.The Chief Engineer (Personnel), Tamilnadu Electricity Board, Administrative Branch, N.P.K.R.R. Maaligai, 800, Anna Salai, Chennai – 600 002. 2.The Tamilnadu Electricity Board, Rep. by its Chairman, 800, Anna Salai, Chennai – 600 002. 3.T.Savariraj Junior Engineer Grade II, Ramnad Electricity Distribution Circle, Ramnad. .. Respondents (In his individual capacity as well as in a representative capacity representing similarly placed persons) Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarified Mandamus to call for the records pertaining to the seniority list published in Memo No.124294, ADM.4/252/A2/96-2, dated .1.1998, quash the same and consequently direct the respondents 1 & 2 to refix the seniority of the petitioner in the post of Technical Assistants over and above the name of third respondent herein with all monetary benefits and to make future promotions from the date on which the juniors of the petitioner including the third respondent were promoted. For Petitioner : Mr.V.Ajoy Khose For Respondent : Mrs.R.Varalakshmi for TNEB for RR1&2 Mr.R.Savariraj for R3 https://hcservices.ecourts.gov.in/hcservices/ O R D E R The challenge in this writ petition, is to the seniority list published by the first respondent fixing the inter-se seniority of Technical Assistants in the services of the respondent Board. 2. The first petitioner joined to the respondent Board as a Helper on 15.02.1989, after his name was sponsored through the employment exchange. Since the first petitioner possessed a Diploma in Electrical and Electronics Engineering, he was selected as Technical Assistant Grade-II, by a process of internal selection and posted to work as Technical Assistant in Chennai Central Electricity Distribution Circle. On such promotion, the petitioner joined duty as Technical Assistant on 01.06.1990. 3. Similarly, the second petitioner joined the services of the Board as Helper on 15.09.1987 and by way of internal selection, was selected and appointed as Technical Assistant Grade II, by proceedings dated 01.06.1990. The second petitioner also possessed a Diploma in Electrical and Electronics Engineering and he was posted to work in Kancheepuram Electricity Distribution Circle. During 1992, the post of Technical Assistant Grade-II, was re-designated as Technical Assistant. By proceedings dated 07.06.1990 and 12.09.1990, 457 persons were directly recruited to the post of Technical Assistant Grade-II. 4. According to the petitioners, since they were selected to the post of Technical Assistant Grade-II, by way of internal selection, by proceedings dated 01.06.1990 and the 457 directly recruited Technical Assistants Grade II, were recruited by orders dated 07.06.1990 and 12.09.1990, and they are juniors. However, in the seniority list published in January 1998, the name of the second petitioner did not find place and representations were submitted to the first respondent and pursuant thereto by proceedings dated 04.09.1999, the first respondent directed the names of nine Technical Assistants, including the petitioners, who were selected, by way of internal selections were included below, the name of the third respondent whose names find place in serial No.623. The grievance being that the petitioners have been directed to be included below the names of the directly recruited Technical Assistants, who appointments were made on 07.06.1990 and 12.09.1990. Therefore, it is contended that juniors to the petitioners were promoted over and above the petitioners and though representation was submitted on 26.07.2000, to refix the seniority, no steps were taken and therefore, the petitioners have approached this Court by way of the present writ petition. 5. Mr.V.Ajoy Khose, the learned counsel appearing for the petitioners contended that it is an admitted fact that the https://hcservices.ecourts.gov.in/hcservices/ petitioners were selected to the post of Technical Assistant, by order dated 1.06.1990, whereas the selection by direct recruitment was made on 07.06.1990 and 12.09.1990 and therefore, direct recruits are juniors to the petitioners and they cannot be placed above the petitioners in the seniority list. It is further submitted that the third respondent is a directly recruited Technical Assistant and his name has been placed over and above the names of the petitioners and the persons whose names are found in serial no.623 to 1081 are all juniors and therefore the impugned seniority list is liable to be set aside. In support of his contention, the learned counsel relied upon the decision of the Hon'ble Supreme Court in 2006 AIR SCW 3515, [K.Madlaimuthu & Anr. vs. State of Tamil Nadu & Ors.] and 2011 (3) LLN 461 (SC) [State of Uttarakhand & another vs. Archana Shulka & Others]. 6. Mrs.R.Varalakshmi, learned Standing counsel appearing for the respondent Board, by relying upon the counter affidavit filed by the respondents 1 & 2, submitted that during June 1990, nine individuals including the petitioners herein were selected by internal selection as Technical Assistant/Electrical . As per the Tamil Nadu Electricity Board Service Regulation, the post of Technical Assistant/Electrical is to be filled up by a direct recruitment through the employment exchange or by internal selection from the existing employees. During November 1987, direct recruitment to the post of Technical Assistant (Electrical) was conducted by calling for the names from the employment exchange and after verification of certificates, the selection was finalised based on merits, by taking into consideration the marks secured by the candidates in their qualifying examination of Diploma subject to the rule of reservation. As per orders issued in B.P.Ms.(CH.) No.242, dated 26.06.1984, those candidates who have under gone apprenticeship training in the Board, were given preference in the matter of appointment over non- apprentices. Subsequently, this preference was withdrawn by B.P.Ms. (FB).No.69, dated 13.09.1988. The candidates who had under gone apprenticeship training, challenged the selection by filing writ petitions before this Court and therefore, the selection list which was finalised during November 1987, could not be operated. The writ petitions filed by the candidates, who have under gone apprenticeship training, were allowed by this Court and the Board was directed to give appointment to such of those persons at the first instance. Therefore, the Board implemented the direction and gave appointment to the apprentices and the selection and appointment were made in different batches upto December 1990. Out of 3607 Diploma Holders, whose names were sponsored by the employment exchange, 1298 candidates were selected, the seniority list of the selected Technical Assistants/Electrical was first communicated during September 1995 and subsequently, during October 1996, the seniority list was revised by taking note of G.O.Ms.No.158, dated 31.05.1993, revising the communal roster from 50 points to 100 points, this revision of seniority list done during October 1996, was communicated https://hcservices.ecourts.gov.in/hcservices/ to the individuals in May 1998. 7. It is further submitted by the learned Standing counsel that the writ petitioners were selected as Technical Assistant/Electrical by way of internal selection during June 1990, which was much after the direct recruitment of Technical Assistant/Electrical done during November 1987, which recruitment was finalised during December 1990, due to pendency of Court cases. Therefore, it is submitted that the ranking of the petitioners along with seven others, who were selected as Technical Assistant/Electrical by internal selection, were assigned ranking below the last candidate selected by direct recruitment in November 1987. It is further submitted that in terms of Regulation 90 (a) of the Service Regulation, the Board is competent to revise the list of candidates for appointment or promotion to any category and the seniority list which was originally communicated during November 1995 was revised on account of revision of communal roster and such revision was done during October 1996 and communicated to the individuals in May 1998. Therefore, it is submitted that the impugned seniority list is perfectly valid and justified and prayed that the writ petition may be dismissed. 8. Mr.R.Savariraj, the third respondent herein has been impleaded in his individual capacity as well as in a representative capacity representing similarly placed persons and the petitioners have taken out an appropriate application under the provisions of the Appellate side rules and the said application in W.P.M.P.No.35073 of 2001 was ordered and notice has been served on the third respondent and though his names is printed in the cause list, he has not appeared in person or through counsel. 9. Heard the learned counsels appearing for the parties and perused the materials available on record. 10. The short issue which falls for consideration is whether the petitioners' herein who were selected and appointed as Technical Assistants Grade -II pursuant to an internal selection and posted in the said post, by order dated 01.06.1990, should be placed over and above, the Technical Assistants Grade-II, like the third respondent, who were directly recruited to the said post. The contention of the petitioner is that the directly recruited candidates were appointed by orders dated 07.06.1990 and 12.09.1990, whereas the petitioners were appointed on 01.06.1990, therefore, they cannot be placed below the direct recruited candidates in the inter-se seniority list. 11. The learned counsel for the petitioners by relying upon the judgment of the Hon'ble Supreme Court in K.Madlaimuthu's case, would submit that the date of entry into service shall be taken into consideration for the purpose of assigning the inter-se seniority and merely because their selection process was finalised earlier is no ground to place persons like the third respondent over and above the https://hcservices.ecourts.gov.in/hcservices/ petitioners. In the case of K.Madlaimuthu, the appellants were working in Registration Department, as Assistant Inspector General of Registration and the question which arose for consideration is as to whether, the period of service rendered as temporary Deputy Registrars should be reckoned for the purpose of fixing the inter-se seniority in the promoted post. The Hon'ble Supreme Court held that the law is well settled that initial appointment to a post without recourse to the rules of recruitment, is not an appointment to the 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. It was further held 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 his appointment is regularised. Therefore, it was held that only from the date on which their services are regularised such appointees can count their service in the cadre. 12. Similarly, in the case of State of Uttarakhand, referred supra, the Hon'ble Supreme Court held that respondents/employees appointed after selection under Regularisation Rules can get seniority only from their date of regularisation and not from date of joining as Adhoc employees. However in the instant case, the recruitment of third respondent and other similarly placed persons were not a adhoc recruitment, but recruitment to a permanent post in accordance with the Service Regulation and such recruitment was finalised as early as on November 1987 and 1298 candidates were selected and their appointment was held up on account of certain directions issued by this Court in writ petitions filed by persons, who have under gone apprenticeship training in the services of the Board. Therefore, the decision rendered by the Hon'ble Supreme Court may not render any assistance to the case of the petitioners. 13. Further in the counter affidavit a specific stand has been taken that after the said appointment, the first seniority list was drawn during September 1995. Admittedly, the petitioners did not question the said seniority list and allowed it to remain as it is. The seniority list was revised only due to the fact that the Government in G.O.Ms.No.158, dated 31.05.1993, revised the communal roster from 50 points to 100 points and such revision was communicated during May 1998. 14. Thus, the petitioners having allowed the seniority list to attain a finality as early as September 1995, after nearly six years have raised objection as regards their inter-se seniority and approached this Court during the year 2001. That apart, the persons, who were recruited and selected through the employment exchange like the third respondent were not adhoc appointees, but a regular selection in accordance with the service regulation and merely https://hcservices.ecourts.gov.in/hcservices/ because their selections were dragged into litigation at the instance of certain third parties, they should not be put to prejudice on account of certain orders passed by this Court in earlier writ petitions. 15. Hence, for all the above reasons, this Court finds no justifiable grounds to interfere with the seniority list which was initially published in September 1995 and the writ petition fails and it is dismissed. No costs. pbn Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar To 1.The Chief Engineer (Personnel), Tamilnadu Electricity Board, Administrative Branch, N.P.K.R.R. Maaligai, 800, Anna Salai, Chennai – 600 002. 2.The Tamilnadu Electricity Board, Rep. by its Chairman, 800, Anna Salai, Chennai – 600 002. +1cc to Mr.R.VAralakshmi, Advocate Sr.68459 +1cc to Mr.V.Ajoy khose, Advocate Sr.68198 Pre-Delivery Order in W.P. No.24393 of 2001 NR(CO) rvr 24/11/2011 https://hcservices.ecourts.gov.in/hcservices/