?IN THE HIGH COURT OF JUDICATURE AT MADRAS %DATED: 07/09/2006 *CORAM THE HON'BLE MR.JUSTICE ELIPE DHARMA RAO AND THE HON'BLE Ms.JUSTICE K.SUGUNA +W.P. No.43975 of 2002 #K.Soundarapandian xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx $State of Tamil Nadu xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx !FOR PETITIONER : M.Ravi ^FOR RESPONDENT : Titus Jesudoss :ORDER IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07-09-2006 CORAM THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE Ms. JUSTICE K. SUGUNA W.P. Nos. 43975/2002, 26131/2004 & 29445/2003 & W.P.M.P. Nos.64521/02, 35946/03 & 31752/04 & W.V.M.P. No.2307/03 W.P. No. 43975/2002 Mr.K.Soundarapandian ..Petitioner Vs. 1. The State of Tamil Nadu, rep. by Secretary to Government, Environment and Forest Department, Fort St. George, Chennai 600 009. 2. The Principal Chief Conservator of Forests, Chennai 600 015. 3. Mr.C.P.M. Manickam 4. Mr.J. Ramalingam 5. Mr.K. Selvaraj 6. Mr.J.T. Noelraj 7. Mr.D. Sampath 8. Mr.M. Muthiah 9. Mr.P. Annamalai 10. Mr.B. Bojan 11. The Tamil Nadu Administrative Tribunal, Chennai 104, rep. by its Registrar ..Respondents Prayer: Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus to call for the records of the 11th respondent/Tribunal in O.A. No. 4385/1998 and that of the 1st respondent in G.O.Ms.No.566, Environment and Forest Department, dated 10.6.1997, quash the common order dated 3.9.2002 in O.A. No. 4385/98 and batch cases and G.O.ms.No.566, Environment and Forest Department, dated 10.6.1997 and issue consequential directions to the 1st and 2nd respondents to fix the seniority of respondents 3 to 10 in the category of Assistant Conservator of Forests, only with reference to the date of their acquiring proper qualifications and eligibility in accordance with the Special Rules and to place all of them below the name of the petitioner herein, in the seniority list of Assistant Conservator of Forests, in the Tamil Nadu Forest Service. For Petitioner :: Mr.M. Ravi For Respondents :: Mr.Titus Jesudoss Spl.G.P. (Forest) for R1 & R2 Mr.R. Thiagarajan, SC for M/s . Sudha Ravi Associates for R5, R7 and R9 No appearance for R10 and R11 R3, R4, R6 & R8 not ready W.P. No. 29445 of 2003 1.The Secretary to Government, Environment and Forest Departments Fort St. George, Chennai 600 009. 2.The Principal Chief Conservator of Forests, Panagal Buildings, Saidapet, Chennai 600 015. ..Petitioners Vs. K. Selvaraj ..Respondent Prayer: Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari to call for the records in O.A. No. 7217 of 2001 dated 3.9.2002 on the file of the Tamil Nadu Administrative Tribunal, Chennai and quash the same. For Petitioners :: Mr.Titus Jesudoss, Spl.G.P.(Forest) For Respondent :: Mr.R. Thiagarajan, SC for M/s. Sudha Ravi Associates W.P. No. 26131 of 2004 M.Kalifulla ..Petitioner Vs. 1.K. Selvaraj 2.The Government of Tamil Nadu, rep. by the Secretary to Government, Environment and Forest Department, Fort St. George, Secretariat, Chennai 600 009. 3.The Principal Chief Conservator of Forests, Chennai 600 015. 4.The Tamil Nadu Administrative Tribunal, Chennai 600 104 rep. by its Registrar ..Respondents Prayer: Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari to call for the records in O.A. No. 7217/2001 dated 3.9.2002 on the file of Tamil Nadu Administrative Tribunal, Chennai and quash the same. For Petitioner :: Mr.M. Ravi For Respondents :: Mr.R. Thiagarajan, SC for M/s. Sudha Ravi Associates for R1 Mr.Titus Jesudoss, Spl.G.P.(Forest) for R2& R3 O R D E R K. SUGUNA,J. W.P. No. 43975 of 2002 has been filed challenging the order passed by the Tamil Nadu Administrative Tribunal in O.A.No. 4385/1998 dated 3.9.2002. W.P. Nos. 26131 of 2004 and 29445 of 2003 are also against the common order passed by the Tribunal dated 3.9.2002 allowing O.A. No.7217/2001. The parties shall be referred to in the rank as they are arrayed in W.P. No. 26131/2004. 2. The facts leading to the case are: The petitioner in W.P. No. 26131/2004 was appointed as a Forest Ranger in the year 1977 in the Forest Department, Government of Tamil Nadu. Subsequently, he was promoted as an Assistant Conservator of Forest with effect from 25.4.97. In the year 1990, the Government wound up Cinchona Department and issued G.O.Ms. No.221, Environment and Forests (CIN) Department dated 3.5.90, by which all the assets and liabilities of the Cinchona Department were to be transferred to Tamil Nadu Tea Plantation Corporation Limited (TANTEA in short) and the entire staff of the Cinchona Department were to be taken over on deputation by TANTEA. Basing on this, the 1st respondent along with other Cinchona Staff was sent to TANTEA. In the year 1993, the Tamil Nadu Cinchona Department Staff Association filed O.A. No.4487/93 on the file of the Tamil Nadu Administrative Tribunal for directions to repatriate the members of the said Association,who were sent on deputation to TANTEA, to the Parent Department, namely, the Forest Department. The said application was allowed by order dated 18.9.1995 and the Tribunal issued directions to take back all the erstwhile Cinchona Department staff to the Forest Department and to give them appropriate posting. Thereupon, the Government , by G.O.Ms. No. 275, Environment and Forest Department dated 6.11.96, issued orders for absorption of erstwhile Cinchona Department staff in appropriate categories and scales of pay. As far as the 1st respondent is concerned, he was absorbed as Assistant Conservator of Forest. Subsequent to this, a representation dated 14.8.2000 was given with a request to fix his seniority in the cadre of Assistant Conservator of Forest. The official respondents herein passed an order dated 10.9.2001 to the effect that fixation of inter-se seniority will be considered after the disposal of O.A. Nos. 4385/1998 and 503/2000, which were then pending before the Tamil Nadu Administrative Tribunal. Challenging the same, O.A. No. 7217/2001 was filed and it was disposed of by a common order dated 3.9.2002 along with O.A. Nos.2116/96, 5179/97, 4385/98, 503/2000. The Tribunal, in its order dated 3.9.2002 held that since the erstwhile Cinchona Department employees have been integrated and absorbed in the Forest Department, their inter-se seniority has to be fixed with effect from 1.4.90, in other words, for reckoning the seniority in the cadre of Assistant Conservator of Forest, their service has to be taken into account with effect from 1.4.1990 and they shall be placed just below the other Assistant Conservators of Forests, who have been promoted on or before 1.4.1990. Challenging this, the petitioner has filed the above writ petition. 3. According to the learned counsel for the petitioner, the order of the Tribunal, so far as it relates to directing the official respondents to count the seniority of erstwhile Cinchona Department staff with effect from 1.4.90, for fixing the inter-se seniority in the cadre of Assistant Conservator of Forest, is contrary to the rules and prima facie, illegal. That apart, according to the learned counsel, as far as the 1st respondent is concerned, he was originally appointed in the Cinchona Department and subsequently, on winding up of the said Department, he was sent to TANTEA. Basing on the orders of the Tribunal, he was repatriated to the Forest Department by G.O.Ms.No. 275 dated 6.11.96. As per this Government Order only, he was absorbed in the cadre of Assistant Conservator of Forest. According to the learned counsel, he was appointed in the post of Assistant Conservator of Forest by order dated 10.6.97 in G.O.Rt. No. 566 Environment and Forests (FR.I) Department. As such, his joining in the post of Assistant Conservator of Forest is subsequent to the petitioner herein. That apart, as far as the Forest Department is concerned, specifically, for the post of Assistant Conservator of Forest, as per rule 8(b) of the Special Rules for Tamil Nadu Forest Service, seniority shall be determined only from the date on which the Assistant Conservators of Forest, whether recruited directly or by transfer, begin to draw, for the first time, the time scale of pay sanctioned for the post. (Further, as per the Special Rules, only after the completion of training alone, one is eligible for seniority). As far as the 1st respondent is concerned, he has drawn the pay fixed for the post of Assistant Conservator of Forest only in July, 1997 whereas the petitioner was appointed as an Assistant Conservator of Forest with effect from 25.4.1997 and he has drawn the pay fixed for the post on 1.5.1997. As such,according to the learned counsel for the petitioner, as per the rules, the 1st respondent cannot be senior to him. 4. The next contention of the learned counsel for the petitioner is the establishment list of the Assistant Conservators of Forest has been issued in the year 1998 as well as in 2000 wherein the contesting respondent was shown as junior to the petitioner herein and this has not been objected by him. That apart, though he was absorbed by order passed in the year 1996 as Assistant Conservator of Forest, only in the year 2000, he has given representation for fixation of seniority with effect from 1.4.90. But, as per Rule 35(f) of Tamil Nadu State and Subordinate Services Rules, any grievance with regard to seniority has to be raised within a period of three years. As such, according to the learned counsel, the representation made by the contesting respondent is a belated one. Learned counsel for the petitioner further submitted that as per G.O.Ms. Nos.125 & 126, Environment and Forest Department dated 24.8.2001, the services of of the erstwhile Cinchona staff were regularised on deputation on the dates noted against each of the staff, as mentioned in the annexure to the said orders. As far as the 1st respondent is concerned, upto the date noted in the annexure, his service has been regularised only in TANTEA. As such, counting their service for the purpose of seniority, prior to this, in Forest Department is unsustainable. That apart, already, a similar question was raised before the Tribunal by those in the cadre of Forester/Forest Ranger and the same was dismissed and against such dismissal, W.P. Nos. 22900/2001, 22901/200, 23070/2001 and 23737/2001 were filed before this Court and a Division Bench of this Court, by order dated 4.4.2003 confirmed the order of the Tribunal. 5. On the other hand, learned senior counsel appearing for the 1st respondent submitted that since the 1st respondent was absorbed in the Forest Department with effect from 1.4.90, for reckoning his seniority in the cadre of Assistant Conservator of Forest, his service has to be counted with effect from 1.4.90 and not with effect from 1996. Apart from this, according to the learned senior counsel, the 1st respondent was absorbed as Assistant Conservator of Forests, no objection was raised by the petitioner herein, as such, now he cannot raise any objection with regard to the seniority of the 1st respondent. Further, according to the learned senior counsel, since the objection has been raised by the petitioner, after a lapse of nearly 7 years, the relief sought for should not be granted. Besides, according to the learned senior counsel, the judgment of the Division Bench will not apply to the facts of this case, since, the relief sought for therein was regarding promotion to the post of Ranger and not relating to seniority of erstwhile Cinchona Department staff. That apart, according to the learned senior counsel, as early as 1990 itself, orders have been passed absorbing the staff of Cinchona Department in Forest Department and with effect from 1.4.90, the parent Department for erstwhile Cinchona staff is the Forest Department. Therefore, the 1st respondent is entitled to count his service for seniority purpose with effect from 1.4.90. That apart, according to the learned senior counsel, only on deputation terms, he was sent to TANTEA and by virtue of G.O.Ms.No. 221 dated 3.4.90 and G.O.Ms.No. 275 dated 6.11.96, the Government issued orders absorbing the entire staff of erstwhile Cinchona Department in Forest Department and placing them as Forest Department staff with effect from 1.4.90. Taking into account, this position, the staff of erstwhile Cinchona Department cannot be denied the benefit of service put in by them from 1.4.90. Besides, according to the learned senior counsel, having decided not to terminate the service of erstwhile Cinchona Department staff and utilised them in the Forest Department, they cannot be denied their service, rights and promotional chance. According to the learned senior counsel, having been absorbed in the Forest Department with effect from 1.4.90 and sent on deputation to TANTEA, their service rights remains in the Forest Department from 1.4.90 and had not gone away. As such, the contesting respondent is entitled to count his service with effect from 1.4.90 in the cadre of Assistant Conservator of Forest. The learned senior counsel relied on the judgment reported in AIR 1987 SC 2291 (K. MADHAVAN V. UNION OF INDIA) wherein the Hon'ble Supreme Court has held that "while calculating the qualifying service in the cadre of Deputy Superintendent of Police, the service spent on deputation in CBI also has to be taken into account, otherwise, no officer would be available to join CBI on deputation." On the basis of this judgment, the learned senior counsel contended that service spent by the contesting respondent on deputation in TANTEA should also be taken into account and his seniority in the cadre of Assistant Conservator of Forest has to be fixed taking into account his service from 1.4.90. Besides, the petitioner has filed W.P. No. 26131/2004 in his individual capacity, as such, he cannot take a stand that in the event of counting the service of contesting respondent with effect from 1.4.90 for fixing his seniority in the cadre of Assistant Conservator of Forest, all those who are promoted subsequent to 1.4.90, will get affected. Besides, according to the learned senior counsel, in view of the order passed in the year 1990 in G.O.Ms. No. 221, Government issued G.O.Ms. No. 275 dated 6.11.96 absorbing the 1st respondent as Assistant Conservator of Forest. As such, the same has to be relate back to 1.4.90 and not with effect from the date of joining. According to the learned counsel, ignoring the service on deputation while determining seniority is contrary to the judgment of the Hon'ble Supreme Court, cited supra. Learned senior counsel, relying on Rule 35(b) of the General Rules further contended that in a case of transfer, service rendered in equal category has to be taken into account for calculating seniority in that cadre. As such, the learned senior counsel prayed for dismissal of the writ petition. 6. As against the common order, official respondents have filed W.P. No. 29445/2003. Learned Government Advocate appearing for the petitioners in that writ petition, adopting the arguments of the learned counsel for the petitioner in W.P. No. 26131/2004 contended that out of sympathy, the erstwhile Cinchona Department staff were absorbed in the Forest Department. For appointment as Assistant Conservator of Forest, as per Rule 15 of the Tamil Nadu Forest Service Rules, the following qualification is prescribed: "1. A candidate for appointment by direct recruitment as Assistant Conservator of Forests. (a) Must have completed or will complete the age of twenty one year and must not have completed or will complete the age of thirty years on the first day of July of the year in which the selection by appointment is made;provided that in the case of candidate belonging to Scheduled Castes, Schedules Tribes, Most Backward Class, Denotified communities and Backward Classes, the upper age limit shall be thirty five years (with effect from 23.01.1995) (b) Must hold Bachelors Degree in "Forestry", Botany, Zoology, Physics, Chemistry, Mathematics, Statistics, Zoology, Agricultural Engineering(Mechanical, Civil or Chemical) of any University or Institution recognized by the University Grants commission for purposes of the grant, provided that in the case of Post Graduates with Mathematics or Statistics, they must have taken one of the following subjects in their PUC examination namely. (i) Biology (ii) Physics and (iii) Chemistry. 2. No person shall be eligible for appointment by recruitment by transfer as Assistant Conservator of Forests unless he has passed the Account test for Executive Officers and Departmental test in Forest Revenue and has completed 8 years of service as Ranger. 3. No Ranger appointed on or before the 1st January, 1968 shall be eligible for appointment by recruitment by transfer as Assistant Conservator of Forests he has worked in the special units namely (i) Plantation Works (such as Crash Plantation Division, Soil Conservation in Reserved Forests Afforestation, Tamil Nadu Forest Plantation Corporation and other Plantations) :: Two years (ii) Project or Corporation such as Tea Rubber :: Two years. (iii) Non-sensitive and Territorial posts such as Working Plan, Research Wings, Survey Timber and Sandal Depots. :: Three years If recruited directly, shall commence probation with effect from the date on which the reports for trainee in any of the State Forest Service Colleges and be on probation for a total period of three years and six months within a continuous period of four years and six months. If recruited by transfer for a total period of two years on duty within a continuous period of three years. A candidate recruited as Assistant Conservator of Forests by direct recruitment, shall in the first instance, undergo a preliminary practical training in a Forest Division for two months and then undergo the course of study in the Indian Forest College, Dehradun or State Forest Collect-cum- Research Centre, Burnihat or SFRC, Coimbatore for a period of two years. On obtaining the certificate of satisfactory completion of the course of study in the Indian Forest College, Dehradun or State Forest Service College-cum-Research Centre, Burnihat or State Forest Service College, Coimbatore, he shall be given training for a period of twenty months as indicated below:- (i) Practical and Office training under the Divisional Forest Officer :: 3 months (ii) Training in the Office of the Conservator of Forests :: 1 month (iii) Practical Training in Police, Revenue and Judicial Departments (Three weeks each in Police and Revenue Departments and two weeks in Judicial Departments) :: 2 months (iv) Range Training (Independent Charge) :: 6 months (v) General attachments to a division or to special work without independent charge memo :: 8 months" According to the learned Government Advocate, the contesting respondent did not possess the above said qualification for appointment as Assistant Conservator of Forest. Inspite of it, basing on the scale of pay, he was absorbed as Assistant Conservator of Forest in the Forest Department. According to the learned counsel, in fact, a number of Forest Rangers, who have completed more than 20 to 25 years of service are waiting to be promoted as Assistant Conservator of Forest for a long number of years. Apart from this, according to the learned counsel, the relief granted by the Tribunal in respect of the contesting respondent is contrary to the judgment of the Division Bench in W.P. No. 22900/2001 batch. According to the learned counsel, by taking a sympathetic view and considering the last drawn pay in the Corporation, he was absorbed in the Forest Department by giving him full pay protection, in spite of the fact that he did not possess the qualification for appointment as Assistant Conservator of Forest. As such, the request of the contesting respondent to count his seniority with effect from 1.4.90 in the cadre of Assistant Conservator of Forest is totally unjustifiable and untenable. Besides, according to the learned counsel, instead of retrenching the erstwhile Cinchona Department staff, they were absorbed as Assistant Conservator of Forest on sympathetic ground. As such, for seniority purpose in the cadre of Assistant Conservator of Forest, their service cannot be counted with effect from 1.4.90. Hence, he prays for allowing the writ petition. 7. We have considered the above said submissions of the learned counsel on either side. 8. As far as the post of Assistant Conservator of Forest is concerned, it comes under the category 2 of the Special Rules for Tamil Forest Service. As per the above said rule, vacancies for the said post can be filled up either by direct recruitment or recruitment by transfer from the Rangers of Tamil Nadu Forest Service. As per the above said Rule, a candidate for appointment by direct recruitment as Assistant Conservator of Forest must possess the following qualification: "1. A candidate for appointment by direct recruitment as Assistant Conservator of Forests. (a) Must have completed or will complete the age of twenty one year and must not have completed or will complete the age of thirty years on the first dayof July of the year in which the selection by appointment is made;provided that in the case of candidate belonging to Scheduled Castes, Schedules Tribes, Most Backward Class, Denotified communities and Backward Classes, the upper age limit shall be thirty five years (with effect from 23.01.1995) (b) Must hold Bachelors Degree in "Forestry", Botany, Zoology, Physics, Chemistry, Mathematics, Statistics, Zoology, Agricultural Engineering(Mechanical, Civil or Chemical) of any University or Institution recognized by the University Grants commission for purposes of the grant, provided that in the case of Post Graduates with Mathematics or Statistics, they must have taken one of the following subjects in their PUC examination namely. (i) Biology (ii) Physics and (iii) Chemistry." As per the said above said Rule, no person shall be eligible for appointment by recruitment by transfer as Assistant Conservator of Forests unless he has passed the Account test for Executive Officers and Departmental test in Forest Revenue and has completed 8 years of service as Ranger. Apart from this, as a Ranger, one should have served in different units to be eligible for appointment as Assistant Conservator of Forest: ________________________________________________________________________________ Sl.No. Name of the Units Minimum period to be worked ________________________________________________________________________________ 1. PLANTATION WORKS (Such as Crash plantation division, Soil Conservation in Reserve Forests, Afforestation, TAFCORN  after 1.9.92 and other plantations) Two years 2. CORPORATIONS Project or Corporation such as TEA Rubber and TAFCORN - Prior to 1.9.92 Two years 3. NON SENSITIVE & TERRITORIAL POSTS Such as Working Plan, Research Wings, Survey, Timber and Sandal Depots and Forest Protection prior to 1.9.92 Three years ______________________________________________________________________ As far as the petitioner in W.P. No. 26131/2004 is concerned, originally, he was recruited as a Forest Apprentice and thereafter, appointed as a Forest Ranger in the year 1977. Subsequently, he was promoted as an Assistant Conservator of Forest with effect from 25.4.97. As far as the 1st respondent is concerned, he was originally appointed in the Cinchona Department. In the year 1990, on the abolition of the said Department, the Government issued G.O.Ms. No. 221 dated 3.4.90 absorbing erstwhile Cinchona Department staff and as per the said Government Order, they were also deputed to TANTEA and subsequently, by G.O.Ms. No. 126 dated 24.8.2001, the period of service of erstwhile Cinchona staff as listed in the annexure to that order in TANTEA from 1.4.90 and upto the dates noted against each in the Annexure was regulated on deputation. That is, to say in other words, the service of the 1st respondent was regularised on deputation in TANTEA with effect from 1.4.90 and he was on deputation upto 24.7.97. As far as the staff of erstwhile Cinchona Department are concerned, upto the date noted against each in the Annexure to G.O.Ms. No.126 Environment and Forest Department dated 24.8.2001, their service was regularised in TANTEA. That apart, by G.O.Ms. No. 275 dated 6.11.96, along with the erstwhile Cinchona Department staff, the 1st respondent was also absorbed as Assistant Conservator of Forest. Consequence of this, he was appointed as Assistant Conservator of Forest with effect from 10.6.97. As per the rule applicable to the said post, the seniority of a candidate, who is appointed as an Assistant Conservator of Forest by way of recruitment by transfer, has to be counted from the date on which he has drawn the basic scale of pay applicable to the post of Assistant Conservator of Forest. Since, the1st respondent was appointed as Assistant Conservator of Forest with effect from 10.6.97, he could not have drawn the pay of the post of Assistant Conservator of Forest prior to this date. Hence, counting of his service with