IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.12.2010 CORAM THE HONOURABLE MR. JUSTICE K. CHANDRU WRIT PETITION NOS.46833 OF 2006, 38566 OF 2006, 7292 OF 2009 & 18632 OF 2010 AND M.P.NOS.1 & 2 OF 2009 IN WP.NO.7292 OF 2009 M.P.NO.2 OF 2010 IN WP.NO.18632 OF 2010 W.P.NO.46833 OF 2006:- 1. V.Kulathumani 2. A. Perumal 3. S. Chinnathambi 4. L. Antonysamy 5. G. Appasamy 6. C. Muthukrishnan ... Petitioners Vs. 1. State of Tamil Nadu rep. by Secretary to Government, Animal Husbandry and Fisheries (MPI) Department Fort St. George Chennai – 600 009. 2. The Special Commissioner for Milk Production and Dairy Development Madhavaram Milk Colony Chennai – 600 051. ... Respondents W.P.No.38566 of 2006 V. Kulathumani ... Petitioner Vs. 1. Special Commissioner for Milk Production and Dairy Development Department, Madhavaram Milk Colony Chennai – 600 051. https://hcservices.ecourts.gov.in/hcservices/ 2. Deputy Milk Commissioner (Corporation) Office of the Commissioner for Milk Production and Dairy Development Department Madhavaram Milk Colony Chennai – 600 051. ... Respondents W.P.No.7292 of 2009:- 1. V. Kulathumani 2. S. Chinnathambi 3. L. Antonysamy ... Petitioners Vs. 1. The State of Tamil Nadu rep. by Secretary to Government Animal Husbandry and Fisheries (MPI) Dept., Fort St. George Chennai – 600 009. 2. The Commissioner for Milk Production and Dairy Development, Madhavaram Milk Colony, Chennai – 51. 3. P. Duraisamy 4. K. Radhakrishnan 5. S. Raman 6. M. Jeevarathinam 7. Y. Sarthar Basha 8. M.A.Mageswari 9. K. Asokan 10.M.Baby 11.M.K.Subramanian 12.J. Rajarajan 13.T.S. Ganesan 14. A. Mohan 15. S. Thangammal 16. P. Sarkunan 17. N. Gangabai 18. V. Mangalam 19. A. Joseph Mechado 20. K. Dhanalakshmi 21. S. Deivarani 22. A. Banu ... Respondents R3 to R22 impleaded as per Court order dated 10.2.2010 in M.P.No.3/2010 in W.P.No. 7292 of 2009. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.18632 of 2010:- M.K.V. Kulathumani ... Petitioner Vs. 1. The State of Tamil Nadu rep. by Secretary to Government Animal Husbandry and Fisheries (MPI) Dept., Fort St. George Chennai – 600 009. 2. The Commissioner for Milk Production and Dairy Development, Madhavaram Milk Colony, Chennai – 51. ... Respondents Writ Petition No.46833 of 2006 came to be numbered by way of transfer of O.A.No.5898 of 2000 from the file of the Tamil Nadu Administrative Tribunal, Chennai, directing the Secretary to Animal Husbandry and Fisheries (MPI) Department and the Commissioner for Milk Production and Dairy Development Department, Chennai – 5 to prepare a panel of Extension Assistants for promotion for the post of Senior Inspectors in the Dairy Development Department containing all the 44 Extension Assistants working in the Dairy Development Department and promote the petitioners herein as Senior Inspectors in the Dairy Development Department. Writ Petition No.38566 of 2006 came to be numbered by way of transfer of O.A.No.7489 of 2000 from the file of the Tamil Nadu Administrative Tribunal, Chennai, to call for the records of the Special Commissioner for Milk Production and Dairy Development, Chennai in his proceedings Roc.No.15409/B2/2000, dated 11.8.2000 and quash the same. Writ Petition No.7292 of 2009 filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari to call for the records relating to the impugned proceedings of the second respondent herein issued in Na.Ka.No.7579/D1/2008, dated 13.1.2009 and to quash the same as illegal. Writ Petition No.18632 of 2010 filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records on the file of the first respondent in passing G.O.(D) No.234, dated 30.7.2010 and quash the same and directing the respondents to consider the petitioner's name for the said post as per Rule 15(a) of the Tamil Nadu Subordinate Services General Rules. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.46833/2006 For Petitioners : Mr. S.Rajendra Kumar for Mr.M.Antony Selvaraj For Respondents : Mr. R. Murali, G.A. W.P.No.38566/2006 For Petitioners : Mr. S.Rajendra Kumar for Mr.M.Antony Selvaraj For Respondents : Mr. R. Murali, G.A. W.P.No.7292 /2009 For Petitioners : Mr.M.Antony Selvaraj For Respondents : Mr. R. Murali, G.A. W.P.No.18632 /2010 For Petitioners : Mr.M.Antony Selvaraj For Respondents : Mr. R. Murali, G.A. COMMON ORDER The above writ petitions were listed today under the caption "Specially Ordered Cases" as per the orders of the Honourable The Chief Justice, dated 14.12.2010. 2. In all the four writ petitions, the first petitioner is common. The other petitioners are similarly placed persons. In view of the interconnectivity, all the writ petitions were heard together and a common order is passed. 3. Heard the arguments of Mr.S.Rajendra Kumar, learned counsel appearing for Mr.M.Antony Selvaraj and Mr. R. Murali, learned Government Advocate appearing for the official respondents. 4. In the first writ petition, Mr.K.V.Kulathumani and five others filed Original Application No.5898 of 2000 before the Tamil Nadu Administrative Tribunal seeking for a direction to prepare a panel for Extension Officers for being promoted to the post of Senior Inspectors in the Dairy Development Department. According to them, 44 Extension Officers are working in the Dairy Development Department and out of which six petitioners were to be promoted as Senior Inspectors. 5. The contention was that the Extension Assistants belong to the Dairy Development Department Subordinate Service as much as the Senior Inspectors working in the Department and they are having same https://hcservices.ecourts.gov.in/hcservices/ educational qualification as that of Senior Inspectors and they are doing the work almost same to be as that of Senior Inspectors, they have put in more than 15 years of service. 6. In the said original application, notice of motion was ordered. In view of the abolition of the Tribunal, the matter stood transferred to this Court and re-numbered as W.P.No.46833 of 2006. On notice from this Court, the respondents have filed a counter affidavit dated 5.9.2009. In the counter affidavit filed by the Commissioner for Milk Production and Dairy Development Department, it was stated that the initially the Department sent a proposal to absorb Extension Assistants as Senior Inspectors to the Government and whenever the Government called for remarks, the same was furnished by the Department and it was also discussed with the Secretary to Government, Animal Husbandry Department, the Government did not agree to absorb the Extension Assistants in the post of Senior Inspectors. The reason for not doing so is set out in page No.6 which reads as follows: " Since it gives scope for two cadre jump i.e. Extension Assistants to Junior Inspector and Junior Inspector to Senior Inspector. Accordingly, the proposal was withdrawn by this office vide letter Rc.No.6744/D1/96, dated 5.2.1997 on the ground that revised proposals will be sent to Government later. Subsequently based on the representation received from the Tamil Nadu Arasu Aluvalar Kazhagam (C & D Group) requesting to send proposals upgrading Extension Assistants posts to the post of Junior Inspector revised proposals were sent to Government for upgrading the Extension Assistants posts to the posts of Junior Inspector vide this office letter Rc.No.18403/97/D1, dated 29.1.1998. After a protracted correspondence on the issue, the Government in their letter No.204, Animal Husbandry and Fisheries (MP-1) Department, dated 1.10.1999, stating that due to financial constraints, the above proposal has not been accepted. Hence, the claim of the petitioners could not be complied with and no order has been passed by the Government for considering the post of Extension Assistants as feeder category for inclusion in the panel neither to the post of Senior Inspector nor to the post of Junior Inspector." 7. Even when the said Original Application was pending, the first petitioner K.V.Kulathumani filed O.A.No.7489 of 2000 before the Tribunal seeking to challenge the order of the Commissioner dated 11.8.2000, wherein and by which the Special Commissioner proposed to fill up the vacancy in the category of Senior Inspectors coming under the Tamil Dairy Development Subordinate Service from the category of Assistants working in the Tamil Nadu Ministerial Service by recruitment by transfer in that department. In the said O.A., notice of motion was ordered and the Commissioner was directed to keep one https://hcservices.ecourts.gov.in/hcservices/ post of Senior Inspector vacant pending further orders. 8. In view of the abolition of the Tribunal, the original application was transferred to this Court and re-numbered as W.P.No.38566 of 2006. On notice from this Court, the Commissioner has also filed a counter affidavit dated Nil (July, 2009). The reason why the Extension Assistants cannot be absorbed as Senior Inspectors in the Department as set out in paragraphs 8 and 10 read as follows:- " 8. ... that the petitioner originally recruited through Employment Exchange to work on consolidated pay of Rs.350/- month. Later on he was brought into regular time scale of pay in the year 1981. The ad-hoc rules for the posts of Extension Assistants were also framed only in the year 1987, as the post of Extension Assistants are sanctioned as temporary post only. As per the ad-hoc rules the Extension Assistant should be a graduate and also should hail from local rural area where Milk Procurement Team is functioning with background of Agriculture operations. 10. .... During the discussion, the Secretary to Government has observed that the Personnel and Administrative Reforms Department felt it to upgrade the Extension Assistant posts into the post of Senior Inspector. Since, it gives scope for two cadre jump i.e. Extension Assistant to Junior Inspector and Junior Inspector to Senior Inspector. Accordingly, the proposal was withdrawn by this office vide letter Rc.No.6744/D1/96, dated 5.2.1997 on the ground that revised proposals will be sent to Government later. Subsequently, based on the representation has received from the Tamil Nadu Arasu Aluvalar Kazhagam (C& D Group) requesting to send proposals upgrading Extension Assistant posts to the post of Junior Inspector revised proposals were sent to Government for upgrading the Extension Assistant posts to the posts of Junior Inspector vide this office letter Rc.No.18403/97/D1, dated 29.1.1998. After a protracted correspondence on the issue, the Government in their letter No.204, Animal Husbandry and Fisheries (MP-1) Department, dated 1.10.1999 stating that due to financial constraints, the above proposal has not been accepted. Hence, the claim of the petitioner could not be complied with and no order have been passed by the Government for considering the post of Extension Assistant as feeder category for inclusion in the panel neither to the post of Senior Inspector nor to the post of Junior Inspector." 9. Subsequently, the very same first petitioner K.V.Kulathumani along with two other Extension Assistants filed W.P.No.7292 of 2009 challenging an order dated 13.1.2009, wherein and by which the Commissioner sent a circular to the Deputy Registrar of Dairy asking https://hcservices.ecourts.gov.in/hcservices/ for particulars of the Senior Inspectors, who are eligible to be appointed as Co-operative Sub Registrars as on 10.1.2008. The petitioners approached the said orders to be set aside on the ground that since they themselves claiming for the post of Senior Inspectors, if the promotions are given to exhaust the Senior Inspectors working in the Co-operative Department their further chance of promotion will be denied. In the said writ petition, notice of motion was ordered on 21.4.2009 and in the application for interim relief, it was ordered that any promotion to be made will be subject to the result of the writ petition. At the time of filing of the writ petition, all the affected parties were not impleaded. Subsequently, by taking M.P.No.3 of 2009, the affected persons were also impleaded by order of this Court dated 10.2.2010. 10. On notice from this Court, the Commissioner for Milk Production and Dairy Development had filed a counter affidavit dated 8.12.2009. In the counter affidavit, it was stated that 44 Extension Assistants were recruited through Employment Exchange and not by the Tamil Nadu Public Service Commission. They cannot equate themselves to the post of Livestock Inspector, Grade-I. The post of Extension Assistants can be considered as equivalent to the post of Junior Assistants and they were never been placed equal to Senior Inspectors, who had a higher scale. It was stated that the post of Livestock Inspector, Grade-I are available only in the Animal Husbandry and do not exist in the Dairy Development Department. For persons who are recruited as Junior Assistant through the Tamil Nadu Public Service Commission, subsequently, for an avenue of promotion to the post of Assistant and by G.O.Ms.No.105, Animal Husbandry Department, dated 20.4.1993, the department created new cadre post and the Assistants working in the Dairy Development Department were appointed as Senior Inspectors. Even that was done after exhausting the volunteers from the Co-operative Department, who opted to go over to the Dairy Development Department. In that course, there was no post available for absorbing the Extension Assistants as Senior Inspectors. 11. Insofar as the stagnation in the post of Extension Assistants was concerned, it was stated that as per the existing orders of the Government, a person who has completed 10 years of service is placed in the Selection Grade and after completing another 10 years, he is also placed in the Special Grade and therefore, the petitioners were given routine revision and depending upon the length of service. 12. After the third round of litigation, K.V.Kulathumani filed yet another writ petition in W.P.N.18632 of 2010 seeking to challenge the order of the State Government in G.O.(D) No.234, Animal Husbandry, Milk and Fisheries Development Department, dated 30.7.2009. By the said Government Order, in respect of Tamil Nadu Dairy Development Department Subordinate Service, persons who are https://hcservices.ecourts.gov.in/hcservices/ working in the Dairy Development in the post of 54 Assistants belonging to Tamil Nadu Ministerial Service were sought to be temporarily appointed as Senior Inspectors and the Commissioner was given permission to make such appointments. By the issuance of Government Order, the Government ratified the promotion given to 36 Assistants from the Ministerial Service for the post of Senior Inspector and also considering the proposal sent by the Commissioner even without amendment to the adhoc rules and there being no scope for direct appointment to the post of Senior Inspector, permitted the Commissioner to fill up under Rule 39(a)(i) of the General Rules, wherein by transfer from other service appointments can be made to the post available in the department. The contention of the petitioner as found in the affidavit was that when the petitioners were qualified to hold such posts and doing same or similar work, there is no need to transfer persons from Ministerial service and their chance of further promotion would be completely jeopardized by the said orders passed by the Government. Therefore, the Government must be prevented from implementing the said order. The said writ petition came to be admitted on 16.8.2010 and in the application for interim relief, this Court found that there is neither any prima facie case nor balance of convenience in view of grant of individual promotion, and hence the M.P.No.2 of 2010 was dismissed. 13. In the light of these assertions and the counter assertions, it has to be seen as to whether the petitioners have made out any case for entertaining these writ petitions. Mr. S.Rajendrakumar, learned counsel in addition to the pleadings made before this Court also submitted that the Extension Assistants were given a revised scale of pay 2009 on the basis of the official committee appointed for recommending the pay revision and the official committee 2009, recommended and accepted the One Man Commission Report in respect of the post held by them and his scale of pay was revised, which is now equivalent to that of the Junior Inspector in the department. Therefore, there is no impediment for them being promoted as Senior Inspectors. Considering their length of service and also the nature of duties, it must be noted that the post of Extension Assistants were created by the Government framing adhoc rules vide G.O.Ms.No.2093, Agriculture Department, dated 9.11.1987. The mode of appointment was by a direct recruitment. The qualification prescribed therein was a degree from the University and also who hail from the villages where Milk Production Team are functioning with background of Agricultural operations. The said service was not made as a regular service. 14. As already set out in the counter affidavit, the petitioners were recruited as Extension Assistants due to the implementation of Operation Flood and were functioning in Trichirappalli, Tanjore and Pudukottai Districts and they were also subsequently transferred to Tirunelveli. The Milk Procurement Teams now functioning in Tirunelveli, Kanyakumari, Ramanathapuram and Virudhunagar Districts https://hcservices.ecourts.gov.in/hcservices/ only. 15. Insofar as the Tamil Nadu General Subordinate Service under the Dairy and Milk Project Department was concerned, initially adhoc rules were issued in G.O.Ms.No.848, Food Department, dated 3.8.1978, the post of Senior Inspector was to be filled up either by direct recruitment or by recruitment by transfer from the category of Junior Inspector of Co-operative Society under the Tamil Nadu Government Subordinate Service or for special reasons from any other service. Though the counsel for the petitioners contended that for recruitment by transfer to the said post, apart from minimum general qualification passing of various examinations and that the petitioners have worked for some years, there was no reference to any Extension Assistants being part of the Subordinate Service. The petitioners tried to compare the post held by them with that of the Livestock Inspector, Grade-I, but the said post is not available in the Dairy Development Department as set out in the counter affidavit elsewhere. In the absence of the statutory rules providing for the Extension Assistants as a feeder category, no amount of argument that the petitioners were discharging similar work or put in the scale of pay equivalent to that of Junior Inspector can have the benefit at all to get them promoted for the post of Senior Inspectors. 16. On the contrary, the Government had taken a policy decision not to go for direct recruitment for which rules provided the same but at the same time, fill up the existing vacancy by transfer from the Ministerial Service asking for volunteers from the Co-operative Department after exhausting them now again for recruitment of Assistants from the Ministerial Service to man these posts. The petitioners' attempt to challenge either the recruitment done from the Ministerial Service or promotion given to the Senior Inspectors to that of the Co-operative Sub Registrars cannot be countenanced by this Court, as the petitioners are not in the feeder category provided under the Rules. May be in cases, where few posts are enumerated as one of the feeder category and recruitments are done only from a particular source, there may be an element of discrimination alleged before a Court and the Court in a given case can direct the authorities to operate the ratio in an equitable manner. But in the absence of the petitioners coming within the statutory rules of a feeder category, the Court cannot grant any relief as that would amount to encroaching the decision making process. In normal circumstances, when the Government had decided not to go for direct recruitment and desirous of making appointments by transfer from other service, the petitioners must necessarily come within that feeder category. Though the adhoc rules framed also provided that for special reasons transfer from any other service can be made, that special reason has to be recorded by the competent authority and not by this Court. https://hcservices.ecourts.gov.in/hcservices/ 17. Accordingly, this Court is not inclined to accede to the request made by the petitioners. These writ petitions are misconceived and lacks in merits. Accordingly, these writ petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are also dismissed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar kb To 1. The Secretary to Government, State of Tamil Nadu Animal Husbandry and Fisheries (MPI) Department Fort St. George Chennai – 600 009. 2. The Commissioner for Milk Production and Dairy Development, Madhavaram Milk Colony, Chennai – 51. 3. The Special Commissioner for Milk Production and Dairy Development Madhavaram Milk Colony Chennai – 600 051. 4. Deputy Milk Commissioner (Corporation) Office of the Commissioner for Milk Production and Dairy Development Department Madhavaram Milk Colony Chennai – 600 051. 3 cc to Mr.M.Antony Selvaraj, Advocate, Sr.No.89651, 89652, 89654 1 cc to Government Pleader, Sr.No.89961, 89963, 89964 W.P.NOS.46833 OF 2006, 38566 OF 2006, 7292 OF 2009 & 18632 OF 2010 KSK {CO} TP/7.1.2011. https://hcservices.ecourts.gov.in/hcservices/