IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 13.02.2008 CORAM THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN W.P.No.2012/2008 & M.P.No.1/2008 1.R.Vijayakumar 2.P.Kumar 3.K.S.Ravichandran .. Petitioners Versus 1.The State of Tamil Nadu rep.by its Secretary Revenue Department, Fort St.George, Chennai 600 009. 2.Special Commissioner and Commissioner of Revenue Administration Chepauk, Chennai-5. 3.The District Collector Nagapattinam District, Nagapattinam. 4.G. Thirumavalavan 5. T.Alagarsamy .. Respondents Writ petition filed under Article 226 of the Constitution of India praying for a writ of mandamus directing the respondents to consider the representation dated 28.12.2007 before drawal of any panel of persons fit for promotion for the post of Deputy Tahsildar as per the statutory rules and that of Rule 22[d] of the General Rule forthwith. For Petitioners: Mr.L.Chandrakumar For RR 1 to 3 : Mr.P.Muthukumar,GA For R4 : Mr.M.S.Palanisamy ORDER The petitioners pray for a mandamus not to draw up the panel of persons fit for promotion until the representation dated 28.12.2007 has been considered. But, it appears that the respondents have replied to the petitioners' representation stating that it is not correct to state that the reserved categories have been filled up contrary to Rule 22[d] of the Tamilnadu State and Subordinate Services [General] Rules. https://hcservices.ecourts.gov.in/hcservices/ 2.Detailed submissions were made on by both sides. It is necessary that the same is dealt with. The issue relating to drawing of panel for promotion as Deputy Tahsildars came up for consideration in WP.Nos.20267/2004 and 13613/2005 and by order dated 09.03.2007, this court held as follows:- "17.From a reading of the above rule and the law laid down by the Supreme Court, it is clear that if the reserved candidates are not available, it is settled law that unless de-reservation is done, the vacancy will not be thrown open to the general category. It is not incumbent upon the Government as soon as the vacancy arises that it must be filled by recruiting the candidates either by direct recruitment or promotion from feeder cadre or by transfer. So, as and when recruitment takes place, the cases of all the candidates including reserved candidates must be considered according to Rules which would arise only when recruitment takes place. The decision of the Supreme Court, relied on by the petitioners, is directly answering the points raised in these writ petitions. It is held that the recruitment year means the year in which the recruitment takes place, but not each three successive years in which the vacancy exists and it is to be considered for appointment or promotion. Therefore, in view of the settled legal proposition, the order of the first respondent is not correct and it is exfacie illegal and therefore, in my opinion, the first respondent has not applied his mind to properly appreciate the rules and to give a correct reasoning before cancelling the order of the second respondent. Therefore, there is a sound reason to interfere with the order of the first respondent. The order of the first respondent suffers from legal infirmities being not in accordance with law and accordingly, the order of the first respondent is set aside and both the writ petitions are allowed. No costs. Consequently, connected WPMPs and WAMPs are closed." 3.Thereafter, the fresh panel has been published. It is the petitioner's case that the SC/ST vacancies have been carried forward beyond the first recruitment year and three consecutive recruitment years and this is contrary to Rule 22[d]. It is not in dispute that after the panel list was issued in the year 2002 for the years 1997,1998 and 1999, no panels were drawn up till 2007. Therefore, considering the carry forward vacancies for https://hcservices.ecourts.gov.in/hcservices/ SC/ST for the years 2000 to 2005 did not arise. The years 2000 to 2005 were "NIL" panels and no recruitment was made in these years. This is accepted even by the learned counsel for the petitioners. The following paragraphs from the counter are extracted since this gives statistics with regard to the promotion of persons as Deputy Tahsildars: "2.With regard to the averments made in para 3 of the affidavit, it is submitted that the present petitioners and the persons said to have been affected are all juniors. There is no dispute in this case with the petitioners. As such, the carried forward vacancies of Scheduled Caste and Scheduled Tribe were prepared according to the seniority list of the Assistants as on 15.07.2007, which is the crucial date for the drawal of Deputy Tahsildar list for the year 2007. After the panel list was issued in the years 2002, for the years 1997,1998 and 1999 no panels were drawn up till 2007. So, the question of carried forward vacancies of Scheduled Caste and Scheduled Tribe for the past years 2000 to 2005 does not arise. As there were "NIL" panels during the years 2000 to 2005, no recruitment was made during the said years. Eleven carried forward vacancies of Scheduled Caste and one carried forward vacancy of Scheduled Tribe created in the 1999 panel list were kept as back log for the purpose of filling up in the next panel list according to the existing rules and regulations in force and in accordance with the judgment of Hon'ble High Court of Judicature, Madras delivered on 09.03.2007 in WP.No.20267/2005. 3.It is further submitted that the total vacancies permitted for the panel year 2006 was six as per Special Commissioner and Commissioner of Revenue Administration, Chennai's proceedings No.Rc.Ser.III[4]/106114/06 dated 19.1.2007. Following the General Rule 22[d] strictly, only 50% of the total vacancies were filled with Scheduled Caste. Three scheduled caste candidates were promoted, out of which two were picked out from the back log. The remaining three vacancies were allotted to others. The balance nine carried forward vacancies of Scheduled Caste were declared to be filled during the next recruitment year. https://hcservices.ecourts.gov.in/hcservices/ 4.it is submitted that vide the Notification of the District Collector, Nagapattinam, No.A1/37923/07 dated 23.08.2007, the following six persons have been promoted as Deputy Tahsildars in this district. Sl.No Name of the candidate Category Community 1 A.Veeramani Carried Forward Vacancy SC 2 I.Somanathan Carried Forward Vacancy SC 3 K.Vijaya Directly recruited Assistant Others 4 G.D.Moorthy Communal Rotation Others 5 P.Vijayan Communal Rotation SC 6 K.Abdul Kareem Communal Rotation Others 5.It is submitted that accordingly, out of the eighteen vacancies sanctioned for the post of Deputy Tahsildars by the Special Commissioner and Commissioner of Revenue Administration, Chennai, vide the proceeding No.Ser.III [3]/79564/07 dated 22.11.2007, six from the back log vacancies of Scheduled caste have been filled up in the panel drawn for the year 2007. Rest of the back log vacancies of Scheduled Caste could not be filled up because of the non-availability of qualified candidates on the crucial date of the panel. Balance of five [Three carried forward vacancies of Scheduled Caste of the earlier years and Two unfilled communal rotation vacancies for Scheduled caste of the current year] carried forward vacancies of Scheduled Caste were declared to be filled up during the next recruitment year." 4.In particular, it is necessary to note what rule 22[d] states with regard to the non-availability of required number of candidates for a particular selection order and how they shall be treated. Rule 22[d] of the General Rules reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ "Rule 22[d]:- If qualified and suitable candidates belonging to any of the Backward classes including the Most Backward Classes and denotified communities are not available for selection for appointment by recruitment, by transfer or by promotion in the turns allotted to them, the turns so allotted shall lapse and the selection for appointment for the vacancies shall be made by the next turn in the order of rotation. Provided that if qualified and suitable candidates belonging to any of the scheduled castes and scheduled tribes are not available for selection for appointment by recruitment by transfer or by promotion in the turns allotted to them in the cycle, the turns so allotted to them shall not lapse and the number of candidates to be selected in that recruitment shall be reduced by the number of candidates belonging to Scheduled casts and Scheduled tribes not available for selection against the turn allotted to them; the unfilled vacancies reserved for the scheduled castes and scheduled tribes to be filled by recruitment by transfer or by promotion shall be carried over to the four consecutive recruitment years, namely, year of recruitment plus three subsequent recruitment years. The selection for appointment to the vacancies in the next recruitment shall be made first for the carried over turns and then the normal rotation shall be followed. If qualified and suitable candidates belonging to any of the scheduled castes and Scheduled tribes are not available for selection for appointment by recruitment by transfer or by promotion even thereafter, the vacancies reserved for those categories shall first be dereserved by obtaining the orders of the Government before filling them by candidates in the next turns in the order of rotation. Provided further that the normal number of vacancies reserved for the candidates belonging to the Scheduled Castes and Scheduled Tribes and the carried forward vacancies as specified in the first proviso shall not exceed fifty percent of the total number of vacancies for a particular recruitment. If there be two vacancies only, one of them shall be treated as a reserved vacancy. If there be one vacancy only, it shall be treated as unreserved. The surplus of the fifty percent https://hcservices.ecourts.gov.in/hcservices/ shall be carried forward to the subsequent recruitment subject, however, to the condition that the particular vacancies carried forward do not become time barred due to their continued existence for more than three years. Selection for appointment to the oldest carried forward vacancies shall be made first. Provided also that in the case of selection for appointment by direct recruitment, with effect on and from the 1st April 1989, there shall be a ban on dereservation of vacancies reserved for the candidates belonging to any of the Scheduled castes and scheduled tribes, Most Backward Classes and denotified communities to be appointed by direct recruitment. But the above ban on dereservation of vacancies shall not be applicable to the vacancies reserved for the Backward classes [other than Most Backward classes and Denotified communities] and therefore if qualified and suitable candidates belonging to any of the Backward classes [other than Most Backward Classes and Denotified communities] are not available for appointment, the turn, so allotted to them shall lapse and the vacancy shall be filled by the next turn in the order of rotation. If sufficient number of qualified and suitable candidates belong to any of the scheduled castes and scheduled tribes, Most Backward classes and Denotified communities are not available for selecton for appointment for the vacancies reserved for them by direct recruitment in the first attempt of recruitment, then a second attempt shall be made for selection of the candidates belonging to the respective communities by direct recruitment in the same recruitment year as early as possible before the next direct recruitment for selection of candidates against such vacancies. If the required number of candidates belonging to such communities are not available even then, the vacancies for which selection could not be made shall remain unfilled until the next recruitment year treating them as "backlog" vacancies. In the subsequent year, when direct recruitment is made for the vacancies of that year [called the current vacancies], the "backlog" vacancies shall also be announced for direct recruitment, keeping the vacancies of the particular recruitment year, namely, the current year vacancies and the backlog vacancies as two distinct groups as illustrated in schedule V to https://hcservices.ecourts.gov.in/hcservices/ this part. While in respect of vacancies for the year of recruitment, the normal procedure relating to the calculation of vacancies reserved for the candidates belonging to such communities as well as instructions that not more than fifty percent of the vacancies shall be reserved for schedule castes and scheduled tribes communities and physically handicapped shall apply, selection for appointment for all the backlog vacancies reserved for such communities shall be made by the candidates belonging to such communities without any restriction as they belong to distinct group of backlog vacancies. The selection for appointment in the next direct recruitment shall be made first for the backlog vacancies and then the normal rotation shall be followed. Provided also that in exceptional cases for posts in Groups A and B for which suitable candidates belonging to the scheduled casts, scheduled tribes, Most Backward classes or denotified communities are not available against the respective reserved vacancies and the non- filling up of posts causes hardship for running the administration, exemption from the ban shall be granted by the Government. The procedure for carrying forward of such vacancies and for exemption from this ban under this rule shall be as specified in Schedule V to these rules." The third proviso shows that if vacancies remains unfilled they will be treated as back log vacancy for the next recruitment year and when the subsequent recruitment year comes up for consideration the vacancies of that year will be treated as current vacancy and the carried over vacancies will be treated as back log vacancies and every time, the selection for appointment is made, first the back log vacancies will be filled up and then normal rotation will be followed. It is also specifically mentioned in the proviso that if qualified and suitable candidates belonging to the Scheduled Caste or Scheduled Tribe are not available either by appointment or by recruitment by transfer of by promotion, the said vacancy shall not lapse and they shall be carried forward. The question how the vacancy shall be carried forward and for how many years is dealt with in 1994 SUPPLEMENTARY [2] SUPREME COURT CASES 490 [HARISH CHANDRA RAM V. MUKH RAM AND OTHERS] wherein the Supreme Court states clearly that the year when vacancy arises will not be the recruitment year. But the recruitment year is that year in which the recruitment takes place. Paragraphs 5 to 8 of the above cited judgment reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ "5.In view of the aforesaid resolutions, it is clear that the general candidates will not be considered for promotion to the post for SC, ST or BC reserved candidates. The reserved candidates even if they are not available, it is settled law that unless dereservation is done the vacancy will not be thrown open to the general category. It is not incumbent upon the Government as soon as the vacancy arises that it must be filled by recruiting the candidates either by direct recruitment or promotion from feeder category or by transfer. So, as and when recruitment takes place the cases of all the candidates including reserved candidates must be considered according to rules which would arise only when recruitment takes place. Take for instance an hypothetical case. A and B are eligible for consideration and were considered in 1980 for two vacancies and B was found suitable and was appointed to one vacancy in 1982. One more vacancy arose in 1983. In the year 1983, A, C and deceased were considered. A and D were promoted in 1984. The recruitment years are 1982 and 1984 and not 1980 when one vacancy existed or 1983 when two vacancies existed. So each year is not the year of recruitment. As and when recruitment takes place in a particular year, it would be the year of recruitment. 6.Take another illustration. Suppose Public Service Commission advertises for direct recruitment in the year 1980, but actually selects the candidates in 1984. whether 1980 would be the recruitment year? Answer would be no. Second advertisement was made in 1985 and recruitment was made in 1990. the second recruitment year is 1990 and not 1985. it is thus clear that the recruitment year is the year in which recruitment takes place, but not each three successive years in which the vacancy exists. The same yardstick would apply to fill in the reserved vacancy. Dereservation will be considered only at the end of third recruitment year provided reserved candidates are not available, or considered at the recruitment and found not fit for promotion or carried forward for three successive years. Then the matter should be placed before the competent authority for consideration for dereservation of the reserved posts and a resolution or order should be made dereserving the posts. Then those alone https://hcservices.ecourts.gov.in/hcservices/ reserved posts or vacancies will be thrown open for recruitment by the general candidates. 7.In view of the above legal position, though the vacancy had occurred in the year 1980 but recruitment was made in the year 1987 by which time the appellant had already fulfilled the qualifications and had become eligible for consideration to vacancy No.2 in the roster which was admittedly reserved for SC candidate. The Promotion Committee was right in considering the case of the appellant for promotion as Senior Selection Grade Head Typist since that post was kept reserved for the scheduled caste candidate. 8.The stand of the High Court that the rule of carry forward was for three successive years and since no one belonging to SC candidates was promoted for three years the vacancy becomes available to general candidates is illegal. Accordingly the High Court has committed grievous error of law in quashing the appointment of the appellant under annexure 10 placed before the High Court and it is restored." Therefore, if recruitment had not taken place between 2000 to 2005 none of those years will be the years of recruitment. Therefore, as far as the recruitment year 1997 is concerned, that year will be taken into account and the three consecutive recruitment years would be 1998, 1999 and 2006. Similarly for the recruitment year 1998, it would be 1999, 2006 and 2007 and so on. The respondents have given a tabular column where they have stated how the carried forward vacancies have been utilised. This is reproduced as follows:- Sl.No Recruitment year and filled with carried forward vacancies No.of carried forward vacancies utilised and year 1 1997 6 1992 6 2 1998 10 1992 5 1997 5 3 1999 2 1997 2 4 2006 2 1997 2 5 2007 6 1998 4 1999 2 Total Created Carried Forward Vacancies 11 9 4 5 Balance yet to be utilised 0 0 0 3 https://hcservices.ecourts.gov.in/hcservices/ 5.From this it is clear that the respondents have not carried forward the vacancies that arose in 1997 for 2007 which they cannot do since the third consecutive recruitment year would come to an end with 2006. Learned counsel submitted that the judgment of the Supreme Court dealt with the appointment alone. If for promotion, the same consideration is placed, then a time may come when all the vacancies will be filled up by the reserved category and nothing will be available for others. We cannot deal with the question on the basis of some hypothetical situation that may arise. As on date, the respondents are entitled to carry over 50% of the carry forward vacancy and they have categorically stated out of 18 carry forward vacancies, only six vacancies have been filled up which does not exceed 50%. Recording this statement, the writ petition is closed. No costs. 6.If the petitioners are aggrieved that a vacancy has been carried forward beyond the three recruitment years as explained by the Supreme Court, it is open to them to agitate the same. If the petitioners are also aggrieved that there is over representation of the reserved category, it is for the petitioner to seek an appropriate remedy. Consequently connected miscellaneous petition is closed. 7.Learned counsel for the petitioners submit that the petitioners want to file an appeal before the Appellate Authority to record their objections to the panel. It is open to the petitioners to do so and if and when the petitioners file such an appeal, the respondents shall consider the same and pass orders expeditiously. Ap Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar To 1.The Secretary State of Tamil Nadu Revenue Department,Fort St.George, Chennai 600 009. https://hcservices.ecourts.gov.in/hcservices/ 2.Special Commissioner and Commissioner of Revenue Administration Chepauk, Chennai-5. 3.The District Collector Nagapattinam District, Nagapattinam. • One cc to Mr. L. Candrakumar, Advocate SR 9299/08 • One cc to Mr. Govt Pleader SR 9294/08 • One cc to Mr. M.S.Palaniswamy, Advocate SR 9252/08 SA (co) sg 25/02/08 WP.No.2012/2008 https://hcservices.ecourts.gov.in/hcservices/