IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.11.2009 CORAM: THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE R.SUDHAKAR Writ Petition No.15362 of 2009 & M.P.No.1 of 2009 1. S.Elangovan 2. D.Velusamy 3. R.Bhuvaneswari 4. M.Meenakshi .. Petitioners Vs. 1. State of Tamil Nadu, represented by Secretary to Government, Home (Courts) Department, Secretariat, Fort St.George, Chennai-600 009. 2. The Principal District Judge, District Court Complex, Coimbatore. 3. M.Selvaraj 4. T.Sundarajan 5. V.Chinnasamy 6. N.Rajeswari 7. C.Santhi 8. A.Sulochana 9. S.Suseela 10.R.Chinnasamy 11.M.Parimalam 12.K.Ganapriya 13.N.Edwin .. Respondents Writ Petition under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, to call for the entire records relating to No.A.No.236/2006 & 1 of 2009, dated 1.7.2009 on the file of the second respondent and quash the same insofar as appointing respondents 3 to 13 in the posts of Reader and Examiner in various Courts in Coimbatore District and direct the respondents 1 and 2 to appoint the petitioners in any suitable vacancies in the Courts at Coimbatore District. https://hcservices.ecourts.gov.in/hcservices/ For petitioners : Mr.N.S.Sivakumar For respondents : Mr.D.Sreenivasan, Addl.G.P. for RR-1 & 2 No appearance for RR-3 to 13 ORDER (The Order of the Court was made by S.J.Mukhopadhaya,J) The Writ Petition has been preferred by the petitioners against the proceedings dated 1.7.2009 issued by the second respondent-Principal District Judge, Coimbatore, whereby and whereunder, the respondents 3 to 13 have been appointed and thereby retained as Reader and Examiner in different Courts of Coimbatore. 2. As the case can be disposed of on a short point, it is not necessary to discuss all the facts except the relevant one. 3. Number of posts of Junior Assistants in the Tamil Nadu Judicial Ministerial Service were lying vacant in different Courts within the District of Coimbatore under the control of the Principal District Judge, Coimbatore. As per the Rules, such posts can be filled up by selection, by calling for the names from the eligible persons on the recommendation of the Tamil Nadu Public Service Commission (for short, 'the TNPSC'). There being urgent need, the Principal District Judge, Coimbatore, took steps by way of ad-hoc arrangement to fill up the post of Junior Assistant till the names are recommended by the TNPSC. For the purpose of ad-hoc arrangement, the names were called for from the District Employment Exchange, Coimbatore, which was forwarded by the District Employment Officer, Coimbatore. The names of the petitioners and respondents 3 to 13 and some others were forwarded by the Employment Exchange, Coimbatore and they were appointed temporarily as Junior Assistants, by proceedings in A.No.236/2006, D.No.3884, dated 26.5.2007. The petitioners and respondents 3 to 13 and some others were posted against such posts on temporary basis in different Courts. 4. Judicial Temporary Employees' Welfare Association and another preferred Writ Petition in W.P.No.9710 of 2009 for a direction on the respondents to consider and regularise the services of the members of the said Welfare Association including the petitioners herein and the respondents 3 to 13 herein. In the said case, while it was brought to the notice of the Court that the petitioners herein and the respondents 3 to 13 herein and others were appointed after calling for the names from the https://hcservices.ecourts.gov.in/hcservices/ Employment Exchange, on behalf of the respondents therein, it was also pointed out that as per the Rules, the persons can be appointed to the post of Junior Assistant only on recommendation by the TNPSC. Another Writ Petition by individual employees in W.P.No.10189 of 2009 was also filed for regularisation of their services. Both the Writ Petitions were heard together and a Division Bench of this Court, by its order dated 10.6.2009, while has not chosen to grant the relief for regularisation of the services of all the temporary Junior Assistants, in the interest of justice, passed the following order: "21. Having regard to all these aspects, we feel interest of justice would be served by disposing of the writ petition with the following observations :- (1) The candidates who have been selected by the TNPSC and allotted to different districts for being appointed in the judicial ministerial service shall be appointed against the vacancies available as per their merit list in accordance with law. (2) If, after permitting such persons to join, vacancies would be still available, the temporarily appointed persons under Rule 16(i)(a) can be retained obviously keeping in view their respective inter se seniority in the concerned district. (3) After completing such exercise, if such temporarily appointed ministerial employees are found to be surplus, efforts should be made by the concerned Principal District Judge to accommodate such persons in various other posts such as Reader, Examiner and Copyist as contemplated in the judgment dated 7.3.2006 in W.P.Nos.16321, 17630 and 18409 of 2001. (4) Even after making adjustment as indicated above, if some temporary employees are found to be surplus, their names may be forwarded to other offices such as Revenue, Excise, etc., in the same district so that question of adjusting them in any available vacancy can be considered by the appropriate Head of the Department in the concerned district. That is obviously a matter which has to be considered by such Head of the Department. (5) While holding the special examination, upper age limit of any candidate, who was temporarily appointed and continuing as such on the date of issuance of G.O.Ms.No.61, shall be relaxed if necessary. (6) All the employees who have been appointed on temporary basis by invoking Rule 16(i)(a) and continuing as such on the date of G.O.Ms.No.61 shall be eligible to appear notwithstanding the fact that they have been terminated hitherto or likely to be terminated in order to accommodate the regularly selected candidates. https://hcservices.ecourts.gov.in/hcservices/ (7) The question as to whether Junior Assistants would be eligible to appear at such special examination is a matter which should be decided by the State Government as expeditiously as possible, preferably within a period of six weeks from the date of receipt of the present order. (8) The State Government should make all efforts to hold the special examination through TNPSC as directed in G.O.Ms.No.61 as expeditiously as possible." 5. Pursuant to the Court's order aforesaid, the persons whose names were recommended by the TNPSC, were appointed as Junior Assistants. 15 temporary Junior Assistants like the petitioners and the respondents 3 to 13 were appointed under Rule 10(a)(i) of the Tamil Nadu State and Subordinate Services Rules, on being sponsored by the Employment Exchange, by way of ad-hoc arrangement and in view of the High Court's order, 11 of them were adjusted and appointed against the post of Examiner/Reader, including the respondents 3 to 13 and four of them, in the absence of the vacancies, i.e. the petitioners, were removed being excess, both by the impugned common order dated 1.7.2009. The relevant portion of the order dated 1.7.2009 reads as follows: "PROCEEDINGS OF THE PRINCIPAL DISTRICT COURT, COIMBATORE. PRESENT: Thiru.G.Chockalingam, M.Com., M.L., Principal District Judge, Coimbatore. A.No.236/2006 & 1/2009 D.No. Dated: 01.07.2009. ..... ..... ..... ..... Consequent to the above, in accordance with the orders of the Hon'ble High Court, Madras passed in the Writ Petitions in Ref.6 cited, the following ousted employees are appointed in the following posts noted against each. Joining instructions for the following persons will be issued on receipt of approval from the Hon'ble High Court, Madras as per the directions given in Roc.No.281-A/2009/C3, dated 19.03.2009. https://hcservices.ecourts.gov.in/hcservices/ S.No. Name of the ousted employee Post and Court at which posting order is issued 1. M.Selvaraj Examiner, District Court, Coimbatore. 2. T.Sundararajan Examiner, CBI Court, Coimbatore. 3. V.Chinnasamy Examiner, Bomb Blast Court, Coimbatore. 4. N.Rajeswari Examiner, DM-cum-JM Court, Valparai 5. C.Santhi Examiner, JM Court No.II, Tiruppur. 6. A.Sulochana Examiner, JM Court, Avinashi 7. S.Suseela Examiner, JM Court No.IV, Coimbatore. 8. R.Chinnasamy Examiner, JM Court No.II, Udumalpet 9. M.Parimalam Reader, TNPID Court, Coimbatore 10. K.Ganapriya Reader, Sub Court, Pollachi 11. N.Edwin Reader, DMC, Palladam Further, the names of the following ousted employees, are forwarded to the District Collector, Coimbatore for adjusting them in any available vacancy in his Department, as per the direction of the Hon'ble High Court, Madras, made in the Writ Petitions in Ref.6 cited. 1. Tmt.H.Meenakshi 2. Thiru D.Velusamy 3. Tmt.R.Bhuvaneswari 4. Thiru.S.Elangovan Sd/- G.Chockalingam, PRINCIPAL DISTRICT JUDGE, COIMBATORE. /True Copy/By Order/ Shrishtadar." 6. Learned counsel for the petitioners referred to the High Court's order/direction, dated 10.6.2009 as given in paragraph 21, quoted above and submitted that after appointment of the TNPSC https://hcservices.ecourts.gov.in/hcservices/ selected candidates, it was ordered that the vacancies if still available, then temporarily appointed persons under Rule 10(a)(i) can be retained obviously, keeping in view their respective inter- se seniority in the concerned District. It was also submitted that all the petitioners and the respondents 3 to 13 having been appointed on the same date, i.e. by the same order, dated 26.5.2007 and they having joined the post on the same date, 1.6.2007, their inter-se seniority ought to have been determined on the basis of seniority as was reflected in the Live Register of the Employment Exchange, which was prepared on the basis of the date of registration of the applicants, but in the present case, no such procedure was followed. Merely on the basis of the position as reflected in the list forwarded by the Employment Exchange, Coimbatore, the impugned order of retention dated 1.7.2009 has been passed. It is asserted that the petitioners are senior to many of the respondents 3 to 13 on the rolls of the Employment Exchange. Learned counsel for the petitioners further submitted that in the absence of any other prescription for determination of the seniority, the persons having been appointed on the same day by the same order, the age could have been the criterion for determination of the seniority and if that is taken into consideration, all the petitioners will rank senior to many of the respondents 3 to 13. 7. Inspite of service of notice, respondents 3 to 13 have not appeared. They have not disputed the averments made in the Writ Petition. 8. The second respondent-Principal District Judge, Coimbatore, has appeared through counsel and filed a counter affidavit. While it is stated that 19 persons were appointed temporarily Junior Assistants under Rule 10(a)(i), it is stated that such appointment was made on the basis of the names sponsored by the Employment Exchange, Coimbatore, by their letter Nos.81,82 and 83/2007, dated 20.3.2007. Out of 19 persons who were appointed, one left the service and out of the remaining 18 persons, 11 have been appointed against the existing 13 vacancies. 9. It is further stated in the counter affidavit that so far as the seniority is concerned, irrespective of the date of registration in the Employment Exchange, their seniority has been fixed by the Employment Exchange according to communal rotation and the same is adopted in the appointment of persons selected. In the order of appointment issued on 26.5.2007, their seniority was fixed by the Court according to the selection made on the communal rotation to avoid complications in fixing their seniority. 10. We have heard the learned counsel appearing for the parties and perused the records. https://hcservices.ecourts.gov.in/hcservices/ 11. The second respondent-Principal District Judge, Coimbatore, has produced the original records relating to the appointment. From the said records, it would be evident that no merit list was prepared for selection and appointment of the petitioners and the respondents 3 to 13 for appointment as temporary Junior Assistants under Rule 10(a)(i). There is nothing on record to suggest that the seniority was fixed by the Office of the Principal District Judge, Coimbatore or the selection was made on the communal rotation to avoid complications in fixing the seniority. On the other hand, it appears that without referring to any guideline, the order of appointment was issued, irrespective of the date of registration as was reflected in the letter sponsored by the Employment Exchange. In the order of appointment, dated 26.5.2007, it has not been mentioned that the names have been shown therein on the basis of their merit or seniority. 12. The Employment Exchange is guided by National Employment Service Manual. Under the said Manual in Volume I, relating to concepts, definitions, etc., guidelines have been made as to how they will prepare the Live Register and make selection of the applicants, for forwarding the list of eligible candidates for appointment in one or other Department of the State or any organisation. In Volume-I of the said Manual, in Chapter IX relating to "Submission of Applicants", under the heading "Selection of Applicants", in Clause 9.5, the following stipulation has been made: "9.5. If there are more applicants on the Live Register than required for submission to the employer, and all of them are equally suitable for the vacancy, selection should be based on the seniority of registration of the applicants." 13. From the aforesaid guideline, it would be evident that in case of more applicants on the Live Register, and if all of them are equally suitable for the vacancy, then the selection is to be made on the basis of the seniority of the registration of the applicants. Therefore, the stand taken by the second respondent- Principal District Judge, Coimbatore, that the appointment order was issued on 26.5.2007 on the basis of communal rotation and to avoid complications, seniority was fixed, is not based on record and such statement made by the second respondent-Principal District Judge, is hereby rejected. 14. It would be evident from the letter of appointment, dated 26.5.2007 that as against the name of the petitioners and the respondents 3 to 13, their registration number in the Employment Exchange and the dates of registration have been reflected, which are as follows: https://hcservices.ecourts.gov.in/hcservices/ Petitioner No./ Respondent No. Name Date of Registratio n in the Employment Exchange Registration Number Petitioner 1 S.Elangovan 29.3.1982 PH/4576/82 Petitioner 2 D.Velusamy 5.7.1982 PH/10677/82 Petitioner 3 R.Bhuvaneswari 31.12.1982 PH/W/4382/86 Petitioner 4 M.Meenakshi 22.6.1990 5305/90 sf Respondent 3 M.Selvaraj 16.6.1987 PH/5176/87 Respondent 4 T.Sundararajan 12.8.1980 8458/83 Respondent 5 V.Chinnasamy 16.12.1976 17886/76-sf Respondent 6 N.Rajeswari 9.7.1984 PH/W/6024/84 Respondent 7 C.Santhi 12.2.1986 PH/W/9978/89 Respondent 8 A.Sulochana 3.7.1978 W/4601/83 Respondent 9 S.Suseela 8.6.1977 W/1863/77-sf Respondent 10 R.Chinnasamy 18.2.1985 PH/7043/87 Respondent 11 M.Parimalam 19.6.1989 W/5367/89-sf Respondent 12 K.Ganapriya 4.3.1982 W/7666/86 Respondent 13 N.Edwin 6.2.1978 2893/86-sf. 15. Thus, it would be evident that many of the respondents, such as respondents 3,4,6,7,10 & 11 were registered much after the registration of the petitioners and as per the guideline, for forwarding the list of eligible candidates, their selection was to be based on the seniority of the registration and in view of such guideline, it appears that many of the petitioners could have been preferred over the respondents as shown above. 16. The second respondent having not followed the guideline of seniority, either on the basis of the date of registration of the candidates with the Employment Exchange or on the basis of the age, which can be followed in the normal course, if all appointments have been made on the same date and joining even by persons on the same date, we hold that re-appointment of respondent Nos.3 to 13 and exclusion of the petitioners, is arbitrary and violative of Article 14 of the Constitution of India and against the order dated 10.6.2009 in W.P.Nos.9710 and 10189 of 2009 passed by this Court. 17. We accordingly set aside the impugned order dated 1.7.2009 so far as it relates to the petitioners and the respondents 3 to 13 are concerned and remit the case to the second https://hcservices.ecourts.gov.in/hcservices/ respondent-Principal District Judge, Coimbatore, with a direction to re-consider the case of the petitioners and the respondents 3 to 13 and other similarly situated persons in terms of the High Court's order/direction, dated 10.6.2009 passed in W.P.Nos.9710 and 10189 of 2009 aforesaid, taking into consideration their seniority in registering their names with the Employment Exchange, and the second respondent-Principal District Judge, Coimbatore, shall pass appropriate orders, within a period of two months from the date of receipt/production of a copy of this order. We allow the respondents 3 to 13 to continue against the post in which they are working on temporary basis, till the orders are passed by the second respondent-Principal District Judge, Coimbatore, in terms of this order or for a period of two months, whichever is earlier. 18. The Writ Petition is allowed with the aforesaid observations and directions. No costs. The Miscellaneous Petition is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. cs To 1. State of Tamil Nadu, represented by Secretary to Government, Home (Courts) Department, Secretariat, Fort St.George, Chennai-600 009. 2. The Principal District Judge, District Court Complex, Coimbatore. 1 cc to Government Pleader, SR. 61149 2 ccs to Mr.N.S. Sivakumar, Advocate, SR. 61042 Writ Petition No.15362 of 2009 MDR (CO) kk 26/11 https://hcservices.ecourts.gov.in/hcservices/