IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 5.1.2010 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.5434 of 2008 S.Prithviraj .. Petitioner Vs. 1. The Director of Prosecution No.5, Kamarajar Salai Triplicane, Chennai-5. 2. The State of Tamilnadu rep. by its Secretary to Government Home (Courts VI) Department Fort St.George, Chennai – 9. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Mandamus to direct the respondents to consider the claims of the petitioner for promotion as Office Superintendent with effect from 1998 onwards (when he became eligible and when vacancies arose) with all consequential benefits including further promotions. For Petitioner : Mr.P.Jayaraman, Sr.Counsel for M/s.G.Elanchezhiyan For Respondents : Mr.T.Seenivasan Addl. Government Pleader ORDER The writ petition is for a direction against the respondents to consider the claim of the petitioner for promotion as Office Superintendent with effect from 1998, when he became eligible and when there was a vacancy, with all benefits. 2.1. The petitioner was appointed as a Junior Assistant on 16.6.1980 and was thereafter promoted as Assistant in the year 1983 and awarded selection grade in the said post in the year 1993. On 22.11.1995, the petitioner was transferred to the Directorate of Prosecution, Chennai as Selection Grade Assistant on deputation. He was promoted as Office Superintendent in the Directorate of Prosecution, Chennai on 14.6.2007 by the first respondent. The petitioner, who has joined as a Selection Grade Assistant in the first respondent/Department on 22.11.1995, was regularly appointed as Assistant by the Government as per the order issued in G.O.(2D). No.299, Home (Courts-VI) Department, dated 17.10.2001. https://hcservices.ecourts.gov.in/hcservices/ 2.2. Even though the post of Office Superintendent arose by way of vacancy in June, 1998, July, 2001 and February, 2002, no seniority list was prepared in the cadre of Assistant so as to make persons eligible to be promoted as Office Superintendent in spite of several representations. The first respondent did not prepare seniority list till 13.6.2007. It was only thereafter, on 14.6.2007, the petitioner was promoted as Office Superintendent. The petitioner earlier approached this Court by filing a writ petition and this Court, while admitting the above writ petition, has directed the respondents to consider the representation of the petitioner dated 8.3.2006 and it was after lapse of over one year, an order of promotion came to be passed on 14.6.2007. 2.3. The petitioner claims that he should have been promoted as Office Superintendent with effect from the year 1998, since it was the fault on the part of the respondents in not preparing the seniority list among the Assistants eligible for promotion to the post of Office Superintendent in spite of vacancies arising in the post of Office Superintendent. 2.4. It is the case of the petitioner that as per the Adhoc Rules framed for the Department of Directorate of Prosecution, the post of Office Superintendent should be filled up by promotion from the lower category of Assistant and if there is no candidate available, the post can be filled up by transfer from other departments. However, the said Rules were not followed and the post of Office Superintendent has been filled up from candidates belonging to other departments in spite of availability of Assistants eligible to be promoted as Office Superintendent. The respondents ought to have prepared a panel for promotion as per Rule 4(a) of the Tamil Nadu State and Subordinate Services Rules. 3.1. In the counter affidavit filed by the respondents, it is stated that the Directorate of Prosecution was revived in the year 1995 and the staff were drawn from other departments, and that the petitioner has joined as Assistant from other department on 22.11.1995 and his permanent absorption in the Directorate of Prosecution was as per the Government Order dated 17.10.2001. 3.2. Since the department has requested the Government for orders, in the meantime, the vacancies in the post of Office Superintendents which arose were filled up from the staff of other departments, especially from the Police Department, for the smooth functioning of the department. It was after the order dated 16.6.2006 passed in W.P.No.17938 of 2006 filed by the petitioner, the Government in the letter dated 27.9.2006 replied to the petitioner stating that his plea for promotion to the post of Office Superintendent is under consideration and after instructions from the Government a seniority list of Assistants was prepared and was https://hcservices.ecourts.gov.in/hcservices/ communicated to the individuals on 21.3.2007 and a panel of Assistants fit for promotion as Office Superintendent for the year 2006-2007 was drawn on 30.3.2007 and after that the petitioner was ordered to be promoted as Office Superintendent on 14.6.2007 and he has also assumed office on the said date. 3.3. Even though it is true that the petitioner has claimed promotion from the year 1998, promotion could be effected to the petitioner only after receiving the clarification from the Government in the year January, 2007 and therefore, the question of giving retrospective seniority to the petitioner does not arise and there is no provision to that effect. 3.4. It is also stated that the representation of the petitioner to promote him as Personal Assistant to Director of Prosecution was considered and there was no provision in the Rules for promotion from the holders of the post of Superintendent to the post of Personal Assistant to the Director of Prosecution, since the said post can be filled up as per the Rules only from the Section Officers in Secretariat or by transfer from among holders of the post of Personal Assistant (Admn) from the Police Department. It was only to guide the juniors on the administrative side, the Government has taken a decision to draw Personal Assistants either from Secretariat or from the Police Department, since the said departments have experienced senior hands. It is also stated that it was only after the Department of Prosecution was made permanent, which was effected by G.O.Ms.No.232, Home (Cts.VI) Department, dated 17.3.2003, the amendment to Adhoc Rules was issued. 4. The Adhoc Rules for Department of Prosecution were framed in G.O.Ms.No.417, Home (Courts-VI) Department, dated 2.3.1988, by which the post of Superintendent is filled up either by promotion from the post of Assistant in the Department of Prosecution, or by transfer of Superintendent from any other department of the Ministerial Service, or by recruitment by transfer from any other service. 5. As per the Adhoc Rules stated above of the year 1988, for the post of Assistant the incumbent should pass the two tests, viz., (i) The Criminal Judicial Test Parts I and II; and (ii) The Account Test for Subordinate Officers Parts I and II. At that time, the Department of Prosecution was under the control of the High Court till an independent Department of Prosecution was created in the year 1994, headed by the Inspector General of Police. 6. The Assistants were drawn from Police Department and Ex- Servicemen Welfare Department and not from Judicial Department and it was due to the Adhoc Rules the Government felt that it was difficult to draw candidates from other departments and therefore, a proposal for amendment was made and by G.O.(2D).No.299, Home (Courts-VI) Department, dated 17.10.2001, the petitioner and another person, https://hcservices.ecourts.gov.in/hcservices/ Tmt.S.Chellam, who were drawn from other departments by transfer and were not qualified in having not passed the Criminal Judicial Test Part I and the Account Test for Subordinate Officers Part II, were granted relaxation, so as to enable them to be absorbed as Assistants in the Directorate of Prosecution. The operative portion of the said order is as follows: "5. In exercise of the powers conferred by rule 48 of the General Rules contained in Part-II of the Tamil Nadu State and Subordinate Services, Volume-I of Tamil Nadu Services Manual, 1987, the Governor of Tamil Nadu hereby relaxes the rule 6, of the Adhoc Rules, for appointment as Assistant issued in G.O.Ms.No.417, Home, Dated 2.3.88, in favour of Thiru S.Prithiviraj and Tmt.S.Chellam, so as to enable them to be appointed regularly in the Directorate of Prosecution with effect from the date of joining of the individuals in the Directorate of Prosecution." 7. It is, therefore, clear that when the petitioner was appointed as Assistant in the Directorate of Prosecution on 22.11.1995, he was not having the qualification as per the Adhoc Rules, since he has not passed the two tests as per the Adhoc Rules framed in the year 1988 and the Government has relaxed the said condition on 17.10.2001. Even though the order of regular appointment of the petitioner in the first respondent/ Department was made in G.O.(2D).No.299, Home (Courts-VI) Department, dated 17.10.2001, as elicited above, in the relaxation order itself the Government has relaxed the Rule in respect of the petitioner and another person to enable the petitioner to be appointed regularly in the first respondent/Department with effect from the date of joining in the said department, which means that relaxation has been given effect to by the Government from the date of his joining in the first respondent/ Department as Assistant, which was on 22.11.1995. 8. In the seniority list which was published on 21.3.2007 and as per the memorandum dated 30.3.2007, the petitioner's name was placed in Serial No.1 as per Rule 35(aa) in accordance with G.O.(2D). No.299, Home (Courts-VI) Department, dated 17.10.2001, which has come into effect from 22.11.1995. Therefore, it is clear that the petitioner is deemed to have been regularly appointed as Selection Grade Assistant in the first respondent/Department from 22.11.1995 onwards and it is incumbent on the part of the respondents to take note of the same for the purpose of considering him for the next promotional post of Office Superintendent. 9. It is also not in dispute that during the years 1998 and 2001 and subsequently, vacancies arose in the post of Office Superintendent in the first respondent/Department and the same were filled up by transfer of persons from other departments. In such circumstances, the name of the petitioner ought to have been https://hcservices.ecourts.gov.in/hcservices/ considered at that time, if he was eligible. As it is seen in the counter affidavit, the proposal has been pending with the Government and the delay was not due to the petitioner and therefore, no fault could be attributed to the petitioner. Immediately after the promotion was conferred on the petitioner as Superintendent on 14.6.2007, he has made representation and approached this Court and this Court has directed the first respondent to consider the representation of the petitioner and even as on date, the said representation has not been considered. 10. The General Rules which form Part-II of the Tamil Nadu State and Subordinate Services Rules, under Rule 35(aa) contemplates as follows: "Rule:35(aa).- The seniority of a person in a service, class, category or grade shall, where the normal method of recruitment to that service, class, category or grade is by more than one method of recruitment, unless the individual has been reduced to a lower rank as a punishment, be determined with reference to the date on which he is appointed to the services, class, category or grade; Provided that where the junior appointed by a particular method or recruitment happens to be appointed to a service, class, category or grade, earlier than the senior appointed by the same method of recruitment, the senior shall be deemed to have been appointed to the service, class, category or grade on the same day on which the junior was so appointed: Provided further that the benefit of the above proviso shall be available to the senior only for the purpose of fixing inter-se-seniority: Provided also that where persons appointed by more than one method of recruitment are appointed or deemed to have been appointed to the service, class, category or grade on the same day, their inter-se-seniority shall be decided with reference to their age." 11. Applying the said Rule, since for the post of Superintendent there is more than one method of recruitment, the petitioner, who was not reduced to any lower rank by way of any punishment, is entitled to have his seniority determined from the date of his appointment to the service and in the present case, as Selection Grade Assistant which was on 22.11.1995. It is stated that the petitioner has retired in the year 2008 on attaining the age of superannuation. In such view of the matter, the writ petition stands ordered with a direction to the first respondent to consider the case of the https://hcservices.ecourts.gov.in/hcservices/ petitioner for notional promotion to the post of Office Superintendent by taking into consideration his original appointment by transfer as Assistant in the first respondent/Department as permanent with effect from 22.11.1995 and promote him from the date when he was eligible. The first respondent is directed to pass appropriate orders on the representation of the petitioner dated 13.9.2007, after taking note of the above said facts, and confer monetary and other pensionary benefits to him, if there are no other legal impediments and such orders shall be passed by the first respondent within a period of eight weeks from the date of receipt of a copy of this order. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sasi To: 1. The Director of Prosecution No.5, Kamarajar Salai Triplicane, Chennai-5. 2. The Secretary to Government State of Tamilnadu Home (Courts VI) Department Fort St.George, Chennai – 9. 1 cc To Mr.G.Elanchezhiyzn, Advocate, SR.722. 1 cc To The Government Pleader, SR.774. W.P.No.5434 of 2008 SGL(CO) RVL 08.01.2010 https://hcservices.ecourts.gov.in/hcservices/