In the High Court of Judicature at Madras Dated:28.02.2005 Coram: The Hon'ble Mr. Justice P. SATHASIVAM and The Hon'ble Mr. Justice S.K. KRISHNAN Writ Petition Nos.11296 to 11298/2003 & 28787/2004 and WPMP.Nos.14171/03, 34972/04 & WVMP.No.2183/2004 .. W.P.No.11296 of 2003: Registration Department S.C./S.T. And M.B.C. Employees General Welfare Sangam No.18 Luz ARUS Church Road Pattinapakkam, Chennai 28 rep. by its General Secretary S. Balakrishnan. .. Petitioner vs. 1. S. Chandrasekar 2. The Government of Tamilnadu rep. by its Secretary Backward Classes and Most Backward Classes Welfare (BCC) Department, Secretariat, Chennai 9. 3. The Inspector General of Registration 120 Santhome High Road Chennai 28. 4. The Registrar Tamil Nadu Administrative Tribunal Chennai 104. .. Respondents W.P.No.11297 of 2003: Registration Department S.C./S.T. And M.B.C. Employees General Welfare Sangam https://hcservices.ecourts.gov.in/hcservices/ No.18 Luz Church Road Pattinapakkam, Chennai 28 rep. by its President R. Sundaramoorthy. .. Petitioner vs. 1. The Registration Department Backward Class Association (Reg.No.274/98) rep. by its President G.R. Murali. 2. The Government of Tamil Nadu rep. by its Secretary Commercial Taxes Department Fort St. George, Chennai 9. 3. The Inspector General of Registration 120 Santhome High Road Chennai 28. 4. The Registrar Tamil Nadu Administrative Tribunal Chennai 104. 5. M. Sakthivel (R5 impleaded as per order of Court dt. 29.1.04 in WPMP 1264/2004) 6. V. Shanmugam ( R6 impleaded as per order dt. 19.1.05 in WPMP. 46700/04) .. Respondents W.P.No.11298 of 2003: K. Subramanian .. Petitioner vs. 1. The State of Tamil Nadu rep. by its Secretary Commercial Taxes Departmental Fort St. George Chennai 9. 2. The Special Commissioner and Commissioner of Commercial Taxes Department, Chepauk, Chennai 5. 3. The Registrar Tamil Nadu Administrative Tribunal Chennai 104. https://hcservices.ecourts.gov.in/hcservices/ 4. A. Alagupillai 5. R. Rani 6. M.S. Kathiravan 7. R. Krishnan 8. N. Prabakaran (RR4 to 8 impleaded as per order of Court dt. 4.12.03 in WPMP 42727/03) 9. V. Subramanian 10. N. Banumathi 11. K. Ragini 12. P.L. Gabriel 13. L. Shymala 14. E. Kumar 15. R. Vasanthakumari 16. P. Panneer Selvam 17. S. Anandaraj 18. L. Sadanandan 19. K. Visalakshi 20. B. Kannan 21. S. Ramaswamy 22. K. Gurusamy 23. V. Manjula bai 24. M. Azhagammal 25. B. Blokendra Prasad 26. N. Suyamprakasam 27. K. Anbumani 28. P.T. Sarangarajan 29. M. Parameswari 30. K. Sriram 31. C. Rajagopalan 32. P. Mahendran 33. D. Jeya 34. M. Rajeswari 35. K. Ambikapathy 36. M. Mohan 37. R. Krishnan 38. P. Balamanickam 39. S. Kajamohaideen 40. V. Dhandapani 41. K. Sankaranarayanan 42. K. Rajamani 43. S. Kaliammal 44. R. Suriyakalavathi 45. M. Veerabanu 46. S. Poongothai 47. J. Rosaline Sundari 48. N. Sankaralingam 49. V. Nallaperumal 50. S. Murugaiah 51. A. Jalaludeen 52. S.S. Rajendran ( RR-9 to 52 impleaded as per order of Court dt. 18.2.2004 in WPMP 1722/2004) https://hcservices.ecourts.gov.in/hcservices/ 53. M. Raman 54. D. Krishnakumar (RR-53 & 54 impleaded as per order of this Court dt. 27.4.2004 in WPMP 8038/2004) 55. D. Thangavel 56. M. Asaithambi RR-55 & 56 impleaded as per order of this Court dt. 13.7.2004 in WPMP 20224/2004) .. Respondents W.P.No.28787 of 2004: 1. V. Adhimoolam 2. S. Ganesan 3. E. Sarasakumari 4. V. Anbu Mohan .. Petitioners vs. 1. N. Jayaraman 2. The Secretary to Government Backward Class and Most Backward Class Welfare (DCC) Department Chennai 9. 3. The Secretary to Government Commercial Taxes Department Chennai 9. 4. S. Shanmuganathan 5. The Special Commissioner and Commissioner of Commercial Taxes Chepauk, Chennai 5. 6. The Registrar Tamil Nadu Administrative Tribunal Chennai 104. 7. M. Raman RR-7 & 8 impleaded as per order dt. 19.1.2005 in WPMP 41453/2004) 8. D. Krishnakumar .. Respondents WP. 11296/2003 & WP 11297/2003 Petitions filed under Article 226 of Constitution of India to issue Writ of certiorari calling for the records of the impugned orders of the 4th respondent in OA. 2717/2000 and O.A. 3551/2000 dt. 22.10.2002 respectively and quash the same. https://hcservices.ecourts.gov.in/hcservices/ WP 11298 of 2003 Petition filed under Article 226 of the Constitution of India to issue a writ of certiorarified Mandamus calling for the records of the impugned order passed by the Hon'ble Tamilnadu Administrative Tribunal in O.A. 6533/2001, dt. 22.10.2002 (batchcase) and the panel drawn by the special Commissioner and Commissioner of commercial Taxes Department Madras. 5. (2nd Respondent herein) in proceedings No. P2/32308/2000 dt. 26.9.2001, and quash the same and to direct the second respondent to prepare the panel for the post of ACTOS from among the Assistants for the year 2000 including the petitioner name by following rule of reservation and to appoint me as ACTO recruitment by transfer of Service as per rules. WP 28787 of 2004 Petition filed under Art 226 of the Constitution of India to issue Certiorarified Mandamus calling for the records of the Hon'ble Tamilnadu Administrative Tribunal, Chennai, in the order dt. 22.10.2002 in O.A. 1219/2002 and quash the said order and consequently direct the Respondents 2 to 4 to prepare the panel for the post of Assistant Commercial Tax Officer, by applying the rule of reservation while following the method of recruitment by transfer from the post of Assistant in the Commercial taxes Department. For petitioners : Mr. K. Chandru, Sr. Counsel in WP.11296 to for M/s. Muthumani Doraisami 11298/2003. For petitioners : Mr. R. Yashood Vardhan WP.28787/2004. For respondents : Mr. E. Sampath Kumar in WP.No.11296/03 Government Advocate for R.2 & R.3 No appearance for R.1. For respondents : Mr. P. Jayaraman, Sr. Counsel in WP.No.11297/03 for Mr. G. Thangavel for R.1 Mr. E. Sampath Kumar Government Advocate for R.2 & R.3 Mr. R. Rangaramanujam for R.5 Ms. G. Devi for R.6 For respondents : Mr. E. Sampath Kumar in WP.No.11298/03 Government Advocate for R.1 & R.2 Mr. V. Vijayashankar for R.4 to 8 and R.9 to R.52 https://hcservices.ecourts.gov.in/hcservices/ Mr. R. Saravanakumar for R.53 & R.54 Mr. V. Ravikumar for R.55 & R.56 For respondents : Mr. E. Sampath Kumar, in W.P.No.28787 Government Advocate for R.2,3&5 of 2004 Mr. R. Rangaramanujam for R.4 Mr. R. Saravanakumar for R.7 & R.8 No appearance for R.1 .. COMMON ORDER (Order of the Court was made by P. SATHASIVAM,J.,) Aggrieved by the common order of the Tamil Nadu Administrative Tribunal, Chennai dated 22.10.2002 made in O.A.No.3551 of 2000 etc., Registration Department SC/ST/MBC Employees General Welfare Sangam and others have filed the above writ petitions. 2. Tamil Nadu Backward Class Officials Association – applicant in O.A.No.9044 of 1997 has prayed for setting aside the letter of the Secretary to Government, Commercial Taxes and Hindu Religious Department, Chennai dated 06.10.1997. The other applicants mostly filed for challenging the letter of the Government dated 23.02.1999 issued by the Backward Class and Most Backward Classes Welfare Department, Government of Tamil Nadu. In other applications, the Assistants working in the Registration Department have challenged the panel prepared for appointment to the post of Sub-Registrar Grade II and published in Government letters dated 03.12.1997, 03.06.1999 and 24.09.1999. 3. The following facts are culled out from various applications filed before the Tribunal. The Government by its order dated 12.11.1993 has upgraded 551 posts of Junior Assistants and Typists, so as to enable them to draw salary of Assistant with a view to give them pecuniary advantages under the guise of promotional opportunities. As per the provisions of Tamil Nadu Commercial Taxes Subordinate Service Rules, the qualification for a person to be included in the panel for appointment to the post of Assistant Commercial Tax Officer by transfer is eight years of total service in Government, of which not less than 2 years should be spent as Assistant, as on crucial date. The upgraded Junior Assistants / Typists holding https://hcservices.ecourts.gov.in/hcservices/ the post for two years cannot be made eligible for inclusion in the list of Assistant Commercial Tax Officer (in short "ACTO") by transfer. He can be included in the list only after he has been regularly promoted as Assistant in the service. The Special Commissioner and Commissioner of Commercial Taxes has rejected the request of certain upgraded Assistants for inclusion in the list of Assistant Commercial Tax Officer for the year 1996-1997, on the ground that they have not rendered two years of service as Assistant. Therefore, by letter dated 06.10.1997, the Government made it clear that two years in the upgraded post of Junior Assistant / Typist as enough qualification for inclusion in the list of ACTOs., is against the Rules and liable to be struck down. 4. The Assistants working in the Commercial Taxes Department filed other applications challenging the reservation provided in promotion while appointing ACTO from among the Assistants. All the applicants are initially recruited as Junior Assistants in the Commercial Tax Department and after completion of qualifying years of service and after passing of Departmental tests, they were promoted as Assistants, which is in Ministerial Service. The applicants became Assistants in the year 1991 and 1993. The next post in the hierarchy is ACTO, which is a Subordinate Service. The method of appointment to the category of ACTO is either by way of direct recruitment, which is done by the Tamil Nadu Public Service Commission or by way of recruitment by transfer. The post of ACTO, which is a Subordinate Service, the recruitment by way of transfer is made from among the clerks employed in Commercial Taxes Department and Clerks and Superintendents in any of the Commercial Taxes sections in the Office of the Commissioner of Commercial Taxes and all these persons belong to Tamil Nadu Ministerial Service. Appointment as ACTO from among the Assistants is only on the basis of seniority, subject to passing the eligibility test. In the order dated 29.02.2000, the Secretary to Government, Commercial Taxes Department, Chennai has stated that candidates (Assistants) who are working in the Tamil Nadu Ministerial Service are transferred as ACTOs., under the Tamil Nadu Commercial Taxes Subordinate Service for the year 1999. The grievance of the applicants is that the Department has provided reservation while appointing ACTOs., from among the Assistants. The Assistants belong to Ministerial Service and they have to be appointed by transfer of service as ACTOs., which is a Subordinate Service. The post of ACTO carries higher scale of pay with greater responsibility and therefore, it is nothing but promotion so far as Assistants are concerned. The Assistants, who are junior to some of the applicants have been promoted as ACTOs., which is illegal and this has been made possible because Government has followed the reservation policy, while granting promotion to them. Such reservation in promotion cannot be provided in view of the direction of the Supreme Court in the case of Indira Sawhney and R.K. Sabarwal cases, where it has https://hcservices.ecourts.gov.in/hcservices/ been categorically held that no reservation can be provided in promotion. 5. Some of the applicants who are working as Assistants in the Registration Department have filed applications seeking to set aside Rule 5 of the Special Rules for Tamil Nadu Registration Subordinate Service and the proceedings of the Secretary to Government, Backward Class and Most Backward Class Welfare Department dated 23.02.1999. So far as this Rule and the Government Order make it applicable the rule of reservation of appointment to the post of Sub Registrar Grade II by recruitment by transfer of Assistants in the Registration Department. The said Rule 5 provides for reservation for Backward Class and Most Backward Class in recruitment by transfer and also by direct recruitment. Some of the applicants who have filed applications belong to forward community, but most of them belong to Backward Class community. Because of the rule of reservation, the applicants in Original Applications are not able to get appointment in the post of Sub- Registrar Grade II even though they have become Assistants as early as in 1986, whereas in the case of Assistants belonging to Most Backward Class, they are able to get the post of Sub- Registrar even though they have become Assistants only in the year 1995. Reservation is not permissible in the matter of appointment to a higher post in respect of Backward Class and Most Backward classes. The Government is wrong in proceeding to make appointments to the post of Sub-Registrar Grade II by adopting the principle of reservation. Even though the appointment is by way of transfer of service, it actually amounts to promotion and therefore there can be no reservation in the case of promotions. 6. The Registration Department Backward Class Association represented by its President G.R. Murali and others have filed separate original application before the Tamil Nadu Administrative Tribunal challenging the panel of the year 1997- 98 fit for appointment to the post of Sub-Registrar Grade II issued in the proceedings dated 3.12.1997, another panel fit for appointment to the post of Sub-Registrar Grade II for the panel year 1998-99 issued in the proceedings dated 03.06.1999 and another panel fit for appointment to the post of Sub-Registrar Grade II for the panel year 1999-2000 issued in proceedings dated 24.09.1999, which were prepared by following the rule of reservation as contemplated in the relevant rules by the Registration and Commercial Taxes Department, Government of Tamil Nadu. After hearing all the parties, the Tribunal by the order impugned quashed the said panel dated 03.12.1997, 03.06.1999 and 24.09.199 on the ground that "recruitment by transfer" is nothing but promotion, as such "rule of reservation" shall not be applicable. https://hcservices.ecourts.gov.in/hcservices/ 7. The Government filed a counter before the Tribunal highlighting various Government Orders, the service rendered in the upgraded post of Assistants can also be taken into account for the purpose of qualifying service for promotion as ACTO and therefore the Government letter is in accordance with rules and is not arbitrary. 8. The questions considered before the Tribunal are: (i) Whether reservation for Backward Class and Most Backward Class can be provided in case of appointment by transfer to the posts of Assistant Commercial Tax Officer, Sub- Registrar Grade II and Deputy Tahsildar, which all belong to a State Subordinate Service from among the members of Tamil Nadu Ministerial Service; (ii) Whether the impugned letter and the panels prepared by the Government for the aforesaid posts for 1998-1999 and subsequent years adopting the principles of reservation is liable to be set aside as it is oppose to law laid down by the Supreme Court in Indira Sawhnay's case." 9. The Tribunal, on consideration of various materials placed and in the light of the decision of the Supreme Court rendered in Indira Sawhnay's case (AIR 1993 S.C. 477) as well as Article 14, 16(4), 16(4-A) of the Constitution of India, various Government Orders etc., set aside the Government letter dated 23.02.1999 and the panels dated 03.12.1997, 03.06.1999 and 24.09.1999 as illegal and violative of law laid down by Supreme Court in Indira Sawhnay's case and ultimately allowed all the applications. Questioning the same, present writ petitions have been filed. 10. Heard the learned counsel for the petitioners as well as respondents. 11. The subject matter of the dispute relates to promoting Assistants to the post of Assistant Commercial Tax Officer / Sub-Registrar Grade II / Deputy Tahsildar. It is the grievance of the applicants before the Tribunal that by wrong approach and interpretation of the Government by applying reservation for the promotional posts, their juniors were promoted to the above mentioned promotional posts and they were deprived of the same. The pith and substance of the grievance of the applicants is that though reservation is applicable at the initial appointment, the same is not applicable to in the case of promotion or recruitment by transfer. We have already referred to the fact that at the relevant time the applicants https://hcservices.ecourts.gov.in/hcservices/ were working in the feeder category as Assistants in the Ministerial Service and eligible to be promoted as Assistant Commercial Tax officer / Sub-Registrar Grade II / Deputy Tahsildar all State Subordinate Service. In other words, the above mentioned posts can be filled up only by way of direct recruitment and recruitment by transfer from one service to another service and not by way of promotion. 12. In this regard, it is useful to refer the relevant rules applicable to the applicants. Rule 2 (13) of the Tamil Nadu State and Subordinate Service Rules defines "promotion". " Rule 2 (13) "Promotion" l13. "Promotion" means the appointment of a member of any category or grade of a service or class of service to a higher category or grade of such service or class; "Recruited direct" (14) A candidate is said to be "recruited direct" to a service, class, category or post when, in case his first appointment thereto has to be made in consultation with the Commission, on the date of its notification inviting applications for the recruitment and in any other case, at the time of his first appointment thereto, he is not in the service of the Government of India or the Government of a State: Provided that for the purposes of this definition a person shall be deemed to be not in the service of the Government of India or the Government of a State- (i) if a period of five years has not elapsed since his first appointment to a service of the Government of India or the Government of a State; or (ii) if he belongs to the Scheduled Castes, Scheduled Tribes or Backward Classes; "Recruited by transfer" (15) A candidate is said to be "recruited by transfer" to a service - (a) if, at the time of his first appointment thereto, he is either a full member or an approved probationer in the Madras High Court Service or in any other service, the rules for which prescribe a period of probation for member thereof; or (b) in case, at the time of his first appointment thereto, he is the holder https://hcservices.ecourts.gov.in/hcservices/ of a post which has been included in another service but for which no probation has been prescribed, if he has put in that post satisfactory service for a total period of two years on duty within a continuous period of three years. Explanation.- Where the special rules for a service provide for recruitment to that service or to any class or category thereof by transfer from any specified service, class or category, a candidate need not, for the purposes of such recruitment, be a full member of an approved probationer in the service, class or category so specified, provided he is a full member or an approved probationer in any other service, class or category; " 13. As pointed out by the Tribunal, though communal reservation was being followed in the matter of Government employment prior to independence, after attaining republic, our Constitution itself provides (vide Article 16) equality of opportunity irrespective caste, religion, sex etc., in the matter of public employment. Consequent to the striking down communal G.Os., Article 16 (4) was amended providing reservation for Backward communities in the matter of public appointments. In this regard it is useful to refer Article 16 (4). "16. Equality of opportunity in matters of public employment.- (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. " The said provision enables the State Governments to make provision for reservation in public appointments for backward class peoples, two Commissions were appointed to identify the Backward Class and Most Backward Class communities. The Mandal Commission submitted its report and Government of India has chosen to adopt and as a follow up action issued various Government Orders. Those Government Orders providing reservation and appointment in public offices in favour of Backward communities is a subject matter of litigation before the Supreme Court in Indira Sawhnay vs. Union of India (cited supra). Since the judgment in the Mandal Commission is a land mark judgment in the field of "reservation", it is useful to refer the principles and directions issued in the said https://hcservices.ecourts.gov.in/hcservices/ judgment. The following conclusion / observation of the Supreme Court are relevant. "307. The initial appointments may be made at various levels or grades of the hierarchy in the service. There is no warrant in Article 16(4) to conclude from the expression "reservation of appointments or posts" that reservation extends not merely to the initial appointment, but to every stage of promotion. Once appointed in a service, any further discrimination in matters relating to conditions of service, such as salary, increments, promotions, retirement benefits, etc. is constitutionally impermissible, it being the very negation of equality, fairness and justice. 309. In whichever post that a member of a backward class is appointed, reservation provisions are attracted at the stage of his initial appointment and not subsequently. Further promotions must be governed by common rules applicable to all employees of the respective grades. 375. There is no doubt that the backward classes should not only have adequate representation in the lowest cadres of services but they should also aspire to secure adequate representation in the higher services as well. Article 16(4) permits reservation for backward classes by way of direct recruitment to any of the cadres in the State services. Reservation can be made in direct recruitment to any cadre or service from Class IV to Class I of the State services. The majority in Rangachari case (1962) 2 SCR 586 = AIR 1962 SC 36 has read in Article 16(4), what is not there, to support the element of qualitative representation. 376. The reservation permissible under Article 16(4) can only be "in favour of any backward class of citizens" and not for individuals. Article 16(1) guarantees a right to an individual citizen whereas Article 16(4) permits protective discrimination in favour of a class. It is, therefore, mandatory that the opportunity to compete for the reserve posts has to be https://hcservices.ecourts.gov.in/hcservices/ given to a class and not to the individuals. When direct recruitment to a service is made the "backward Class" as a whole is given an opportunity to be considered for the reserve posts. Every member of the said class has a right to compete. But that is not true of the process of promotion. The promotional posts are not offered to the backward class. Only the individuals are benefited. The object, context and the plain language of Article 16(4) make it clear that the job reservation can be done only in the direct recruitment and not when the higher posts are filled by way of promotion. 377. It is not possible to read in these lines the permissibility of reservation even in the process of promotion. This is the only interpretation which can be given in the context and also in conformity with the service jurisprudence. Question No.7: Whether Clause (4) of Article 16 provides reservation only in the matter of initial appointments/ direct recruitment or does it contemplate and provide for reservations being made in the matter of promotion as well? 827. We find it difficult to agree with the view in Rangachari that Article 16(4) contemplates or permits reservation in promotions as well. " 14. It is clear that after the said decision, the Government shall not adopt policy of reservation in promotion so far as Backward Class communities are concerned. Reservation Policy in the matter of promotion is permissible only in the case of SC/ST, for which an amendment was brought in by inserting 16(4-A) with effect from 17.06.1995. Based on the law declared by the Supreme Court in Indra Sawhney's case, the applicants who were working as Assistants in Registration / Revenue and Commercial Tax Departments approached the Tribunal, questioning the three panels and giving promotion by applying the rule of reservation. It is clear from the Constitutional provisions as well as the judgment in Indira Sawhney case, though Central and State Governments are empowered to provide reservation for backward class of citizens, there cannot be any further reservation for them in the promotional posts. https://hcservices.ecourts.gov.in/hcservices/ 15.Now, we shall consider the stand taken by the Government and the beneficiaries of the impugned orders (Government letter and promotion panels) that the appointments were done only by