IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:- 16-07-2008 CORAM: THE HONOURABLE MR.JUSTICE P.K.MISRA AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN Writ Petition Nos.18985 of 2003, 30008 of 2006 and 12523 of 2007 1. T.Williams 2. A.Dharmaraj 3. P.T.Stephen 4. M.Murugan .. Petitioners in WP.18985/03 1.T.Williams 2.K.Mohanraj 3.T.N.Murugan 4.M.Ramalingam 5.S.J.Raman 6.S.Bellu 7.P.Innachimuthu 8.J.Mani 9.M.Velusamy 10.M.Murugan 11.S.Surulimalai 12.K.Madaswamy 13.N.Raju 14.M.Abubakkar 15.A.Dharmaraj 16.T.Devasagayam 17.N.Hallan 18.Johponsaka 19.K.Swamidoss 20.V.Amaldoss 21.R.Paranthaman 22.P.Chinnaswamy 23.V.Raghavan 24.M.Periyaswamy 25.P.T. Stephen 26.R.Govindaraj .. Petitioners in WP.30008/06 https://hcservices.ecourts.gov.in/hcservices/ 1.T.Williams 2.T.N.Murugan 3.S.J.Raman 4.S.Bellu 5.P.Innachimuthu 6.J.Mani 7.M.Velusamy 8.M.Murugan 9.S.Surulimalai 10.K.Madaswamy 11.N.Raju 12.M.Abubakkar 13.A.Dharmaraj 14.T.Devasagayam 15.N.Hallan 16.Johponsaka 17.K.Swamidoss 18.V.Amaldoss 19.R.Paranthaman 20.P.Chinnaswamy 21.V.Raghavan 22.P.T. Stephen 23.R.Govindaraj .. Petitioners in WP.12523/07 Versus 1.Secretary to Government, (Environment & Forest), Fort St. George, Chennai - 600 009. 2.Prl.Chief Conservator of Forests, Panagal Buildings, Chennai - 600 015. .. Respondents 1 and 2 in all WPs. 3.Registrar, Tamil Nadu Administrative Tribunal, Chennai-600 104. .. 3rd Respondent in WP 18985/03 Writ Petitions filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorarified Mandamus as stated therein. W.P.18985/03 :- Calling for the records pertaining to the common order passed by the Tamil Nadu Administrative Tribunal in O.A.Nos.1423/98 and 8271/98 dated 29.11.2001 and quash the same in so https://hcservices.ecourts.gov.in/hcservices/ far as the monetary benefits denied to the Petitioners herein in the aforesaid orders passed by the Hon'ble Tribunal and direct the Respondents herein to give monetary benefits to the petitioners w.e.f 5.1.98, the date on which, their Juniors were promoted as Foresters. W.P.30008/06 :- to call for the records pertaining to the G.O.275 (Environ & Forest) dated 6.11.96 and the consequential order by the 2nd Respondent in Ref.Ka.Na.K2/66555/96, dt.22.5.97 in so far as the applicants are concerned and set aside the same and consequently direct the Respondents to designate the applicants as 'Forester' and fix their inter-se seniority accordingly with all attendant benefits. W.P.12523/07 :- to call for the records of the 2nd Respondent in proceedings No.AB1/34731/2000 dated 14.1.2003 and direct the Respondent to include the names of the applicants in the list released therein and promote the applicants as “Foresters” with all consequential benefits. For Petitioner .. Mr.V.Chockalingam For Respondents .. Mr.K.Rajassekar, Addl.G.P.(Forest) ******* COMMON ORDER M.SATHYANARAYANAN, J The orders passed herein will govern the disposal of these three writ petitions. W.P.No.18985 of 2003 is filed by T.Williams, A.Dharmaraj, P.T.Stephen and M.Murugan against the respondents for the issuance of writ of certiorarified mandamus to set aside the order dated 29.11.2001 passed by the Tamil Nadu Administrative Tribunal (in short "the Tribunal") in so far as the denial of monetary benefits is concerned and direct the respondents to give monetary benefits to them with effect from 5.1.1998 - the date on which, their juniors were promoted as Foresters. The averments in the writ petition are extracted in brief as given hereunder:- 2. The petitioners are Selection Grade Forest Guards working in various places in the Forest Department and they were originally selected through Employment Exchange and appointed as Field men in the Cinchona Department, Government of Tamil Nadu between 1968-1975. The petitioners were subsequently promoted as Overseers between 1969 and 1985 in the same department and they became Selection Grade Overseers on completion of 10 years of service as Overseers. https://hcservices.ecourts.gov.in/hcservices/ 3. The Government of Tamil Nadu in the year 1990, decided to wind up Cinchona Department and accordingly passed an order in G.O.Ms.No.214 (Environment and Forests) dated 30.3.1990. As per the said G.O., the lands belonging to the Cinchona Department were placed partly at the disposal of the Tamil Nadu Tea Plantation Corporation Limited (TANTEA). The remaining lands were partly placed at the disposal of the Forest Department. Another Government Order in G.O.Ms.No.221 (Environment and Forests) dated 3.4.1990 came to be passed winding up of the Cinchona Department. The relevant portion of G.O.Ms.No.221, dated 3.4.1990 is extracted hereunder:- "After careful consideration of all the factors the Government now order as follows:- (i)The Department of Cinchona will be wound up with immediate effect. The residuary activities of the Department will be taken over by the Forest Department including any pension liability of Cinchona Department staff. (ii)All the assets and liabilities of the Cinchona Department will stand transferred to M/s Tamil Nadu Tea Plantation Corporation Limited. (iii)Tamil Nadu Tea Plantation Corporation Limited will take over the entire labour force of Cinchona Department and assume all existing obligations towards them including wages, ESI/EPF contributions etc. with effect from 1.4.1990. The wages payable to the Cinchona Labour taken over by Tamilnadu Tea Plantation Corporation Limited will be fixed separately by Tamil Nadu Tea Plantation Corporation Limited and shall not be less than that paid now by Cinchona Department. (iv)Tamilnadu Tea Plantation Corporation will also take over the entire Government Staff of Cinchona Department on deputation. The Forest Department will be the parent Department for these staff with effect from 1.4.1990 with the winding-up of the Cinchona Department. The terms and conditions of deputation will issue separately". 4. The petitioners had completed three years of deputation in TANTEA and they submitted representations praying for repatriation to the parent department. However, it did not fructify. Hence the petitioners filed an Original Application in O.A.No.4487 of 1993 before the Tribunal through their association praying for appropriate direction to the respondents to repatriate them to their parent department and for appropriate postings in the said department. The Government had opposed the said original application. The Tribunal has passed final order dated 18.9.1995 directing the Government to repatriate the petitioners to their parent department namely the Forest Department and give them appropriate postings within six https://hcservices.ecourts.gov.in/hcservices/ months. Since the Government has failed to comply with the orders passed by the Tribunal, the petitioners had invoked the contempt jurisdiction by filing C.A.No.328 of 1996 and notices to the contemnors were ordered by the Tribunal. 5. The Government after the receipt of notices in contempt petition, had passed an order in G.O.Ms.No.275 (Environment and Forests) dated 6.11.1996, absorbing all the Government staff of the Cinchona Department, in the Forest Department, against certain categories of posts. According to the petitioners that though there were certain anomalies in the fitment under the above said G.O., which were also pointed out to the Tribunal, the Tribunal had closed the contempt application on the ground that the order of the Tribunal was substantially complied with. The Tribunal has closed the said contempt application vide order dated 13.3.1997 granting liberty to the petitioners, to approach the Tribunal, for further orders and also directed the respondents to rectify the anomalies. 6. The petitioners further submitted that the posting orders issued by the Government on 22.5.1997, bristled with anomalies and no correct fitment or grade, has been given to them. Therefore, in order to set right the anomaly through legal process, the petitioners had invoked the jurisdiction of the Tribunal by filing the application in O.A.No.9154 of 1997 praying to designate them as Foresters instead of Forest Guards. The said O.A. was admitted on 19.11.1997 and an interim order was granted to the effect that "any promotion made will be subject to the result of the O.A". The said O.A., on abolition of the Tribunal, has been transferred to the file of this Court and numbered as W.P.No.30008 of 2006. 7. The petitioners once again filed a contempt application in C.A.No.386 of 1997 in view of the liberty given to them in the earlier order passed in C.A.No.328 of 1996 on 13.03.1997. During the pendency of the said contempt application and O.A.No.9154 of 1997, the second respondent promoted some Forest Guards as Forester vide order dated 5.1.1998. The Forest Guards, who were promoted as Foresters, according to the petitioners, were far juniors to them and hence they once again filed an application in O.A.No.1423 of 1998 before the Tribunal and it was admitted on 20.2.1998 and an order of ad-interim direction was issued on 13.03.1998 in M.A.No.1481 of 1998 stating "not to fill up 26 posts of Forester" in 1996 panel. 8. The petitioners further averred that in violation of the said order, the respondents filled up all the posts and hence they filed one more contempt application in C.A.No.152 of 1999 and even during the pendency of the said contempt application, the respondents issued a panel for 1998 and 1999 on 19.5.2000 by which the claim of the petitioners was once again overlooked. https://hcservices.ecourts.gov.in/hcservices/ 9. The Tribunal took-up O.A.No.1423 and 8271 of 1998. O.A.No.1423 of 1998 was filed by T.Willams and 25 others including one A.Dharmaraj. O.A.No.8271 of 1998 was filed by S.Thangaraj and 22 others. The Tribunal had disposed of the said Original Applications by a common order dated 29.11.2001. The Tribunal has passed the following order:- "Therefore, it can be taken that the petitioners were absorbed in an equal cadre. Hence, they cannot be treated as juniors to the persons already serving in the absorbed cadre. 9. When the question of inter-se-seniority is considered, the date of appointment in the cadre from which they were appointed has to be taken into account. The learned senior counsel has produced two lists containing certain particulars. From the list it is seen that the absorbed persons like the petitioners were appointed to the post they were holding just prior to their absorption on different dates. The dates given in the lists showing the date of appointment to the cadre from which they were absorbed should be taken as the date of appointment in the new absorbed cadre viz., Selection Grade Forest Guards and Forest Guards. The inter-se-seniority must be fixed taking into account the dates contained in the lists. 10. It is represented that without fixing the inter- se-seniority properly, the Forest Guards have been given promotion ignoring the claims of the petitioners. Now the respondents have to fix the inter-se-seniority of the petitioners by including the names of the petitioners in the seniority list mentioned above. Notional promotion should also be given to the petitioners, after re-fixation of seniority list, if juniors have been given promotion. The notional promotion should be given from the date on which their immediate juniors given promotion. But, however, monetary benefits shall be given from the date when the petitioners assume charge in the promoted post. However, seniority in the promoted cadre shall be reckoned from the date on which notional promotion to be given to the Petitioners. Both the petitions are allowed and ordered as above. 10. The crux of the said order is that the petitioners ought to be granted promotion as Foresters with notional fixation but without monetary benefits. However, respondents under misinterpretation of the said order, had issued another panel for 2000-2001 on 14.1.2003 giving promotion to 75 persons who are in the cadre of Forest Guards https://hcservices.ecourts.gov.in/hcservices/ as Foresters once again overlooking the claim of the petitioners. The petitioners aggrieved by the order dated 29.11.2001 in O.A.No.1423 of 1998 and O.A.No.8271 of 1998 in so far as denying the benefit of actual monetary benefits, filed the present writ petition. 11. Respondents 1 and 2 had filed common counter reiterating the submissions made by them before the Tribunal. It is submitted by the respondents 1 and 2 that they immediately pursued action on the orders passed by the Tribunal and they found that the subject matter was a complicated one as it involved amalgamation of staff in two departments in one category. Therefore, they examined the implementation of the order with reference to the statutory provisions, administrative procedures, implication on the promotion of Tamil Nadu Forest Department Staff, financial aspects etc. The respondents 1 and 2 further averred that in the meanwhile, one of the applicants in O.A.No.1423 of 1998 namely A.Dharmaraj had filed a writ petition in W.P.No.27907 of 2004 praying for a direction directing the respondents to grant promotion to him in the post of Forester in pursuant to the orders of the Tribunal dated 29.11.2001 in O.A.No.1427 of 1998. 12. This Court vide order dated 8.10.2004, had directed the respondents to implement the said order of the Tribunal within a period of 12 weeks from the date of receipt of copy of the order. 13. The respondents in compliance of the common orders passed by the Tribunal in O.A.Nos.1423 and 8271 of 1998 and W.P.No.27907 of 2004, through the Principal Chief Conservator of Forests (second respondent), had sent a detailed reported dated 7.12.2001 to the Government for issuance of necessary orders. The Government after examining the matter in detail and following all the administrative procedures and after consulting other administrative departments had issued orders in G.O.Ms.No.128, (Environment and Forest) Department, dated 4.8.2005. As per the said G.O., it has been decided to fix inter-se-seniority in terms of Rule 35(aa) of the Tamil Nadu State and Subordinate Service Rules. Subsequently, based on G.O.Ms.No.128, dated 4.8.2005, the second respondent had issued a proceedings dated 24.10.2005, wherein the petitioners' seniority in the post of Forest Guards were fixed as 19.7.1974, 21.1.1980, 10.4.1984 and 6.4.1985 respectively. 14. It is further submitted by the respondents 1 and 2 in their counter that for appointment of Foresters by promotion of Forest Guard, Rule 5 of Tamil Nadu State Subordinate Service Rules prescribes the following qualifications namely: (a) Must possess the minimum general educational qualification specified in the schedule to the General Rules https://hcservices.ecourts.gov.in/hcservices/ or must have rendered satisfactory service in Forest Department for a period not less than 8 years; (b) must have successfully completed a course of training in Tamil Nadu Forestry College, Vaigai Dam if he had not already undergone such training. The petitioners underwent Forest Guards training from 1.7.1997 to 30.12.1997 and hence they are eligible for consideration for promotion as Forester for the year 1999-2000. However, for the said year there was a 'nil' panel drawn and therefore, their names were considered only for the panel year 2000-2001. With reference to other requisites such as undergoing any punishment, charge sheet etc., it is further averred by the respondents that the petitioners 1,2, and 4 have already retired from service on 30.11.2004 and 31.1.2007 respectively. 15. The respondents 1 and 2 had notionally promoted the second petitioner , third petitioner and fourth petitioner as Foresters in the panel for the year 2000-2001 fixing seniority above the immediate juniors to the petitioners vide proceedings dated 28.3.2006 and 5.5.2006 respectively. However, they were not given any financial benefit for the notional promotion given to them in terms of the common order passed by the Tribunal in the above said original applications. 16. One of the petitioners herein namely A.Dharmaraj (second petitioner) filed a contempt petition No.367 of 2005 in W.P.No.27907 of 2004. This Court has closed the said contempt petition on 3.4.2006 by passing the following order: "The learned Additional Advocate General, representing the respondents has submitted that as per the order passed by the Tribunal and the subsequent order passed by this Court, the seniority of the petitioner was re-fixed taking into account of the date of the original appointment in Cinchona department and that in so far as the promotion to the cadre of Forester is concerned, though the petitioner has passed the requisite test, he has not completed the six months training conducted by the Tamil Nadu Forestry College, Vaigai and that later he completed the said training during the period from 1.1.1998 to 30.6.1998 and thus, he satisfied the requirement only in the year 1998. It is further submitted by the learned Additional Advocate General that there was no vacancy in the year 1999 and only in the year 2000, a vacancy arose and soon after the panel was prepared for the year 2000-2001, he was given promotion with effect from 2001 and an order , dated 28.3.2006 was also passed by the respondents, giving promotion to the https://hcservices.ecourts.gov.in/hcservices/ petitioner and that in so far as the monetary benefits ordered by the Tribunal and the order of this court is concerned, necessary order will be passed within a period of two weeks and the same is recorded. In view of the submissions of the learned Additional Advocate General, the order passed by this Court has been complied with. In case, the petitioner is not satisfied with the order, he can work out his remedy before the appropriates forum in accordance with law. Accordingly, this Contempt Petition is closed". 17. The second respondent in compliance of the above said order passed by this Court had given notional promotion to the second petitioner namely A.Dharmaraj as Forester with effect from 7.2.2003 i.e. the date of joining of Thiru.M.Kuppusamy, Forester who is junior to the applicant vide proceedings dated 17.4.2006. 18. It is further submitted by the respondents 1 and 2 in their counter that Dharmaraj was given subsequent increment and arrear amount of Rs.12,574/- on 30.8.2006. 19. It is the specific contention of the respondents 1 and 2, that the claim of the petitioners that their services rendered in Cinchona department prior to 1.4.1990 ought to be taken into account without fulfilling the requirement to be complied with under the relevant Rules relating the promotion from the post of Forest Guard to Forester is untenable as the petitioners cannot be given any promotion bye-passing the statutory requisites prescribed for their promotion. Respondents 1 and 2 also contended that this Court in a common order dated 4.2.2003 in writ petition Nos.22900 of 2001 batch etc., had held that the promotion to the post of Assistant Conservator of Forests if acceded to, that would result in total violation of the rules relating to the promotion and it will make a mockery of whole purport and intent of the Rules which stipulates satisfactory compliance of necessary stipulations. Therefore, the respondents 1 and 2 contended that the claim made by the petitioners herein for promotion without fulfilling the requisite qualification with retrospective effect is unsustainable in law and on facts and therefore, prayed for dismissal of this writ petition. 20. W.P.No.30008 of 2006 (O.A.No.9154 of 1997):- O.A.No.9154 of 1997 filed by T.Williams and 25 others before the Tribunal, to set aside the impugned G.O.275 dated 6.11.1996 and the consequential order passed by the second respondent dated 22.5.1997 and direct the respondent to designate the petitioners as "Forester" and fix their inter se seniority accordingly with all attendant benefits, on abolition was transferred to the file of this Court and numbered as W.P.No.30008 of 2006. https://hcservices.ecourts.gov.in/hcservices/ 21. W.P.No.12523 of 2007 (O.A.No.733 of 2005):- T.Williams and 22 others challenging the proceedings dated 14.1.2003 passed by the second respondent in which panel for promotion as Foresters in the year 2000-2001 was released and to include them in the list of Foresters and direct the respondents to include their name in the list and promote them as Foresters with all consequential benefits, filed O.A.No.733 of 2003 on the file of the Tribunal. On abolition of the Tribunal, O.A.No.733 of 2003 was transferred to the file of this Court and numbered as W.P.No.12523 of 2007. 22. The petitioners had reiterated their submissions made in W.P.No.18985 of 2003 and submitted that the impugned order dated 14.1.2003 passed by the second respondent herein promoting persons other than the petitioners herein is in clear contravention of earlier orders passed by the Tribunal and their services in the erstwhile Cinchona department between 1968 and 1975 has been overlooked and consequently their seniority also. 23. Respondents 1 and 2 had filed common counter affidavit in the writ petition and reiterating the submissions made by them in W.P.No.18985 of 2003. 24. Mr.V.Chockalingam, learned counsel appearing for the petitioners in all the writ petitions made his submissions based on the averments made in the writ petitions. The learned counsel appearing for the petitioners had drawn the attention of this Court to the common orders passed in O.A.No.1423 of 1998 and subsequent orders passed in the contempt application and also the orders passed by this Court in W.P.No.27907 of 2004 filed by one of the petitioners namely A.Dharmaraj and thereafter the orders passed in O.A.No.1423 of 1998 in contempt petition No.367 of 2005 filed by him. 25. It is submitted by the learned counsel appearing for the petitioner in G.O.Ms.No.128, dated 4.8.2005, wherein the Government had decided to fix the seniority of the former Cinchona staff who were observed as Selection Grade Forest Guards and Forest Guards in the Forest department subject to seniority already fixed therein (inter se seniority) under Rule 35(aa) of the Tamil Nadu State Subordinate Service Rues. But the fact remains that the G.O.Ms.No.128 dated 4.8.2005 is not even in accordance with Rule 35 (aa) of the State Subordinate Service Rules. Therefore, non implementation of the orders passed by the Tribunal as well as by this Court on the part of the respondents 1 and 2, are per se contemptuous. 26. As regards the contention raised by the respondents 1 and 2 that the petitioners had not complied with the pre requisite https://hcservices.ecourts.gov.in/hcservices/ qualification for appointment of Forester under Rule 5 of State Subordinate Service Rules, it is submitted by the learned counsel for the petitioner that the said Rule is not applicable to them for the reason that the second respondent has never raised such an issue before the Tribunal at the time of disposal of O.A.No.1423 and 8271 of 1998. It is further contended by the learned counsel for the petitioners that the petitioners were appointed between 1968 and 1975 as Field men on regular basis in Cinchona department and thereafter they were promoted as Overseers and Selection Grade Overseers in the same department. Therefore, after much distance of time, the objection regarding non compliance of pre-requisite qualification for appointment of Forester is wholly untenable. 27. The learned counsel for the petitioner also submitted that factually speaking that all the petitioners who were formerly Selection Grade Overseers in Cinchona department and absorbed as Selection Grade Forester, Guards for the Forest Department had completed Forest Guard training between July 1997 and December 1997 as Forest Guard in that department. Therefore, they are seniors to the said persons and the respondents 1 and 2 have to take into consideration their past services rendered in Cinchona department and fix their seniority above the said persons. 28. The learned counsel for the petitioner also relied upon the following decisions:- (i)1986 WLR 291 - (G.Maria Selvaraj vs. The Jt. Manager, (Port Operations) FCI & anr. (ii)1987 SC 2291 - (K.Madhavan vs. SUO.I. & anr.) (iii)2000 SC 594 - (S.I.Rooplal & anr. vs. Lt.Governor Thro' Chief Secy. Delhi & ors) (iv)2008 (1) SCC 400 - (Attar Singh Kaushik vs. Secy. - Commr. Transport Dept. & anr.) and submitted that petitioners whether retired or in service are entitled for seniority, notional promotion and monetary benefits from the date on which their juniors were promoted in the Forest Departments, as per the proceedings of the second respondent dated 5.1.1998 and denial of the same on the face of it , is unsustainable in law. Therefore, all the writ petitions are deserve to be allowed according to the learned counsel for the petitioners. 29. Mr.K.Rajasekar, learned Additional Government Pleader (Forest) has invited the attention of this Court to the order dated 7.9.2006 in W.P.No.43975 of 2002 batch etc., wherein the promotion to the post of Assistant Conservator of Forest from Forest Ranger came up for consideration, this Court held that ignoring the service Rules and ignoring the qualification required for the post, only basing on the pay drawn by him in the TANTEA Department wherein the concerned https://hcservices.ecourts.gov.in/hcservices/ petitioner had worked on deputation, he has been given appointment in the post of Assistant Conservator of Forest. Therefore, granting such seniority prior to the date on which he was appointed as an Assistant Conservator of Forest will result in total violation of the rules apart from making a mockery of the whole purport and intent of the Rules. Ultimately, this Court held that as per G.O.Ms.No.128, Environment and Forests (FR.2) Department, dated 4.8.2005, no additional posts have been sanctioned to accommodate the erstwhile Cinchona department staff and therefore the reasons stated by the Tribunal are on a total misconception of fact. It has been further held by this Court that even on absorption, one cannot