IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.01.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.45334 and 45200 OF 2006 (O.A.NOs.4098 and 4177 OF 2000) Dr.Ambedkar All Government Industrial Training Institute Staff Welfare Association by its Secretary Regn. No.126/99 K.Amaresan Government ITI, North Madras, Chennai-21. .. Petitioner in W.P.No.45334 of 2006 Dr.Ambedkar Government Data Centre Staff Welfare Association Branch affiliated to Dr.Ambedkar All Government Industrial Training Institute, Regn. No.126/99 by its Secretary S.Ganapathi Government Data Centre, Anna University Campus, Chennai-600 025. .. Petitioner in W.P.No.45200 of 2006 Vs. 1.The State of Tamilnadu rep by its Secretary, Labour and Employment Department, Chennai-9. 2.The Director, Employment and Training Department, Chennai-5. 3.The Secretary, Adi Dravida Welfare Department, Secretariat, Chennai-9. 4.The Nodal Officer for SC/ST Grievance Cell Directorate of Employment and Training Chennai-5. .. Respondents in W.P.No.45334 of 2006 https://hcservices.ecourts.gov.in/hcservices/ 1.The State Finance Secretary (Finance Department), Fort St. George, Chennai-600 009. 2.The Special Commissioner, Government Data Centre, Anna University Campus, Chennai-600 025. 3.The Joint Director, Government Data Centre, Anna University Campus, Chennai-600 025. 4.Adidravidar Welfare Secretary Secretariat, Fort St. George, Chennai-600 009. 5.The Nodal Officer, Government Data Centre, Anna University Campus, Chennai-600 025. .. Respondents in W.P.No.45200 of 2006 O.A.No.4098 of 2000 has been preferred before the Tamil Nadu Administrative Tribunal and on transfer to this court renumbered as W.P.No.45334 of 2006 praying for the issue of a writ of certiorarified mandamus to call for the records in relation to G.O.No.44, dated 20.5.1998 and the Constitutional mandate 1997 SCC Vol IX Page 199 and also to issue directions to the respondents not to permit any promotion and not to implement the order dated 29.1.2000 directly or by promotion pending compliance of G.O.No.44 dated 20.5.1998. O.A.No.4177 of 2000 has been preferred before the Tamil Nadu Administrative Tribunal and on transfer to this court renumbered as W.P.No.45200 of 2006 praying for the issue of a writ of certiorari to to call for the records in relation to G.O.NO44 dated 20/5/98 and also the earlier G.Os mentioned Supra and implement the constitutional Mandate and also issue directions to fill up the first vacancy by promoting the petitioner's claims or promoting him as Machine Supervisor or console operator from the post of Punch Operator in Group c from the department of Government Data Centre pending compliance of G.O.No.44 dated 20/5/98 and also the petitioner prays that Scheduled Caste and Scheduled Tribe representations 18 + 1% should be included in the forthcoming promotion list failing which immediate stay of the releasing of panel of promotion list for the post of Groups A,B,C and D of Government Data Centre, Anna University Campus, Chennai-600 025 may be stayed. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Mr.S.Veeraraghavan in both writ petitions For Respondents : Mr.R.Murali, GA in both writ petitions COMMON ORDER O.A.No.4098 of 2000 is filed by Dr.Ambedkar All Government Industrial Training Institute Staff Welfare Association represented by its Secretary. O.A.No.4177 of 2000 is filed by Dr.Ambedkar Government Data Centre Staff Welfare Association Branch affiliated to Dr.Ambedkar All Government Industrial Training Institute, represented by its Secretary S.Ganapathi. 2.W.P.No.45334 of 2006 arose out of the O.A.No.4098 of 2000 filed before the Tribunal seeking to challenge an order dated 29.1.2000 passed by the second respondent Director of Employment and Training Department, Chennai. The petitioner sought for setting aside the order, dated 29.1.2000 pending compliance of the Government Order in G.O.Ms.No.44, Adi Dravidar and Tribal Welfare Department, dated 20.5.1998. The said G.O came to be issued pursuant to the judgment of the Supreme Court in Indra Sawhney Vs. Union of India reported in 1992 Supp (3) SCC 217. The State Government after referring to that decision, in paragraph 7 stated as follows: "7.Based on the review and assessment of the number of posts in the Groups A,B,C,D selection by direct recruitment in respect of SCs/STs shall be undertaken by the recruitment bodies and agencies like the Tamil Nadu Public Service Commission, Tamil Nadu Uniformed Service Recruitment Board and Teachers Recruitment Board and appointments shall be made immediately." 3.Notice of motion was ordered on the O.A on 27.6.2000. Pending the O.A., an interim stay of the Government Order was granted with further rider that if any promotion was already made, the interim stay will not affect the operation of those promotional orders. Subsequently, the matter was mentioned before the Tribunal. The Tribunal held on 30.6.2000 that if the order of promotion already given effect to in respect of any candidates, the stay will not operate against those candidates. In view of the abolition of the Tribunal the matter stood transferred to this court and renumbered as W.P.No.45334 of 2006. 4.O.A.No.4177 of 2000 was filed in respect of the Data Centre challenging the same G.O.Ms.No.44, Adi Dravidar and Tribal Welfare Department, dated 20.5.1998. In that O.A., notice of motion was ordered on 27.6.2000. Pending the O.A., https://hcservices.ecourts.gov.in/hcservices/ no interim order was granted. In view of the abolition of the Tribunal, the matter stood transferred to this court and renumbered as W.P.No.45200 of 2006. 5.The prayer made by the petitioners in both writ petitions was that promotions or appointments should not be made for various posts under the State Government in Group A,B,C and D without first determining the backlog vacancies. Those vacancies should be filled up with the members of SC and ST as per the communal roster. Only after filling up those posts, any further exercise can be done by the respondents. G.O.Ms.No.44 mandated them to identify the number of vacancies which are available to SC and STs. Therefore, the respondents must be directed to go for recruitment to fill up the backlog vacancies. 6.On notice from the Tribunal, the respondents have filed a reply affidavit, dated 13.1.2003 in O.A.No.4098 of 2000. In paragraph 18 of the reply affidavit, it was averred as follows: "18.It is submitted that in G.O.Ms.No.33, Adi Dravidar and Tribal Welfare Department, dated 8.5.2000, it was decided to fill up the backlog vacancies that arose from 1.4.89 at the entry level posts in all categories within a period of five years and the G.O.Ms.No.44, Adi Dravidar and Tribal Welfare Department (TDL.2), dated 20.5.98 become inoperative. But in G.O.Ms.No.91, Adi Dravidar and Tribal Welfare (Tdl.2) Department, dated 28.11.01, Government have recently decided to restore the orders issued in G.O.Ms.No.44, Adi Dravidar and Tribal Welfare Department, dated 20.5.98. Accordingly, feasibility of promotion Scheduled Caste/Scheduled Tribe from the feeder category for filling up of shortfall/ backlog vacancies subject to the legal implication is still under the consideration of the Government." 7.In O.A.No.4177 of 2000, a reply affidavit has been filed by the respondents, dated Nil (July, 2004). In paragraph 19 of the reply affidavit, it was averred as follows: "19.Regarding the averments made in paras VI 17 of the Original Application, it is submitted that the G.O.Ms.No.44, AD&TW Department, dated 20.5.98 demanded an assessment to be made in every Government Department with regard to the adequacy of the representation of SC/ST's with reference to the reservation at the level of 18+1% respectively in each category/Group of posts. In letter No.15684/TDL/98-8 dated 23.7.2000, it has been conveyed that the https://hcservices.ecourts.gov.in/hcservices/ Government have decided to fill up backlog vacancies at the entry level posts in each department that arose from 01.04.1989 within period of 5 years covering all the reserved communities including SC/ST's. Therefore, orders issued in G.O.Ms.No.44, AD&TW Department, dated 20.5.98 have automatically become inoperative. Subsequently, the orders issued in the G.O. have since been restored the G.O.Ms.No.91, AD&TW Department, dated 28.11.01 and guidelines issued in respect of filling up of shortfall and backlog vacancies intended for SC/ST's. The orders also do not support the applicants claims. Hence, no further action need to be pursued with regard to G.O.Ms.No.44, AD&TW Department, dated 20.5.1998 & G.O.Ms.No.91, AD&TW Department, dated 28.11.01." 8.It must be noted that filling up vacancies for any particular community is an enabling provision. This court cannot issue a direction to respondents to fill up either a particular post or to go only for recruitment drive for the backlog vacancies. The position of law in this regard has been squarely answered by this court in Madras Refineries SC/ST Employees' Welfare Association Vs. The General Manager (HR), Chennai Petroleum Corporation Ltd., Manali, Chennai-600 068 reported in 2010 (3) CTC 110. Hence there is no case made out to entertain the writ petitions. Accordingly, both writ petitions will stand dismissed. However there will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1.The State Finance Secretary (Finance Department), Fort St. George, Chennai-600 009. 2.The Special Commissioner, Government Data Centre, Anna University Campus, Chennai-600 025. https://hcservices.ecourts.gov.in/hcservices/ 3.The Joint Director, Government Data Centre, Anna University Campus, Chennai-600 025. 4.Adidravidar Welfare Secretary Secretariat, Fort St. George, Chennai-600 009. 5.The Nodal Officer, Government Data Centre, Anna University Campus, Chennai-600 025. 6.The Secretary to the Government of Tamilnadu Labour and Employment Department, Chennai-9. 7.The Director, Employment and Training Department, Chennai-5. 8.The Nodal Officer for SC/ST Grievance Cell Directorate of Employment and Training Chennai-5. + 1 cc to the Government Pleader SR.6498 W.P.NOs.45334 and 45200 OF 2006 NG(CO) Eu 4.3.11 https://hcservices.ecourts.gov.in/hcservices/