IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.12.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.17440, 12577, 16755 and 26399 of 2007 and M.P.NO.1 of 2007 P.Vasunathan .. Petitioner in WP No.17440/2007 R.Padmanaban .. Petitioner in WP No.12577/2007 S.Jayaraman .. Petitioner in WP Nos.16755 and 26399 of 2007 Vs. 1.The Government of Tamil Nadu, rep. By its Secretary, Tamil Development Culture & Religious Endowments Department, Fort St. George, Chennai-9. 2.The Special Commissioner and Commissioner, Hindu Religious & Charitable Endowments Department, Nungambakkam High Road, Chennai-34. 3.M.vijayarangadurai 4.N.Thirumagal 5.S.Haripriya 6.M.Kavitha 7.R.Sudarsan 8.N.Dhanapal 9.P.R.Ashok 10.P.Bharathi .. Respondents in WP No.17440 of 2007 https://hcservices.ecourts.gov.in/hcservices/ 1.The Government of Tamil Nadu, rep. By its Secretary, Tamil Development Culture & Religious Endowments Department, Fort St. George, Chennai-9. 2.The Commissioner, Hindu Religious & Charitable Endowments Department, Chennai-34. 3.M.Thirumagal 4.S.Haripriya 5.M.Kavitha 6.R.Sudarsan .. Respondents in WP Nos.12577 and 16755/2007 1.The State of Tamil Nadu, rep. By its Special Commissioner and Secretary to Government, Tamil Development Culture & Religious Endowments Department, Fort St. George, Chennai-9. 2.The Commissioner, Hindu Religious & Charitable Endowments Department, Chennai-34. .. Respondents in W.P.No.26399/2007 W.P.No.17440 of 2007 is preferred under Article 226 of the Constitution of India for the issuance of writ of certiorarified mandamus to call for the records of the first respondent in G.O.Ms.No.126, Tamil Development, Culture and Religious Endowments Department, dated 16.6.2003 and to quash the seniority list issued therein insofar as the seniority of the applicant vis-a-vis the respondents 3 to 10 are concerned and to direct the respondents 1 and 2 to fix the seniority of the applicant over and above respondents 3 to 10 with all consequential benefits such as promotion to the post of Deputy Commissioner and Joint Commissioner. W.P.Nos.12577 and 16755 of 2007 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the entire records of the first respondent pertaining to the promotion for the post of Deputy Commissioner by its impugned order G.O.No.87 dated 30.5.2002 and to quash the same and to direct the first and second respondents to https://hcservices.ecourts.gov.in/hcservices/ promote the applicants to the post of Deputy Commissioners with consequential benefits. W.P.No.26399 of 2007 is preferred under Article 226 of the Constitution of India for the issue of a writ of certiorarified mandamus to call for the records pertaining to the order of the first respondent in letter No.(Walayam) 328, dated 16.11.2006 and to quash the same and to direct the first respondent to revise the inter se seniority of Assistant Commissioners, issued in G.O.Ms.No.126, Tamil Development, Culture and Charitable Endowment Department, dated 16.6.2003 by considering the objection of the petitioner dated 5.7.2003. For Petitioners : Mr.R.Yashod Vardhan, SC for Mr.R.Ravi in WP No.17440/2007 Mr.V.Shanmugasundaram in W.P.No.12577 of 2007 & 16755/2007 Mr.Hidayathullakhan in W.P.No.26399 of 2007 For Respondents : Mr.T.Chandrasekaran, Spl.G.P.(HR&CE) for RR1 and 2 in all petitions Mr.A.Palaniappan for RR4,5 and 6 in W.P.No.17440 of 2007 Mr.P.Seshadri for R7 in w.P.No.17440 of 2007 & 12577/07 Mr.A.Thirumurthy for R6 in W.P.No.16755 of 2007 Mr.G.Jayachandran, RR 4 & 5 - 16755/05 COMMON ORDER Heard Mr.R.Yashodvardhan, learned Senior Counsel leading for Mr.R.Ravi, learned counsel appearing for petitioner in W.P.No.17440 of 2007, Mr.V.Shanmugasundaram, learned counsel appearing for petitioner in W.P.No.12577 of 2007, Mr.M.Hidayathullakhan, learned counsel appearing for petitioner in W.P.No.26399 of 2007, Mr.T.Chandrasekaran, learned Special Government Pleader for respondents 1 and 2 and Mr.A.Thirumurthy, Mr.A.Palaniappan and Mr.P.Seshadri, learned counsel for private respondents. 2.The petitioner in the first writ petition filed O.A.No.197 of 2004 before the Tamil Nadu Administrative Tribunal, seeking to challenge the order of the State Government in G.O.Ms.No.126, Tamil Development, Culture and Religious Endowments Department, dated 16.6.2003 and after quashing the seniority list insofar as the petitioner is concerned, for directing the official respondents to fix seniority of the petitioner over and above respondents 3 to 10 with all consequential benefits such as promotion to the post of the Deputy Commissioner and Joint Commissioner. https://hcservices.ecourts.gov.in/hcservices/ 3.In view of the abolition of the Tribunal, the matter stood transferred to this court and was renumbered as W.P.No.17440 of 2007. On notice from this court, the official respondents have filed a counter affidavit, dated 28.4.2009. On behalf of private respondents, respondents 4 to 6, 8 and 10 represented by Mr.A.Palaniappan, learned counsel have filed a counter affidavit, dated 30.11.2009. The seventh respondent represented by Mr.P.Seshadri, learned counsel has filed a counter affidavit, dated 7.12.2009. 4.Two other petitioners have filed O.A.Nos.1145 and 2872 of 2003 before the Tamil Nadu Administrative Tribunal, seeking to challenge the order of the Government in G.O.Ms.No.87, Tamil Culture Development and Religious Endowment Department, dated 30.5.2002, wherein and by which, promotions were granted in the post of Deputy Commissioners in respect of respondents 3 to 6. In view of the abolition of the Tribunal, the matters stood transferred to this court and were renumbered as W.P.Nos.12577 and 16755 of 2007. On behalf of the official respondents, a counter affidavit, dated 12.10.2009 was filed in W.P.No.16755 of 2007. 5.W.P.No.26399 of 2007 was directly filed before this court, seeking to challenge the letter No.328, dated 16.11.2006 and for a direction to first respondent to revise the inter-se seniority of the Assistant Commissioner issued in G.O.Ms.No.126, dated 16.6.2003 by considering the objection of the petitioner, dated 5.7.2003. 6.In that case, the same petitioner had filed the earlier writ petition in W.P.No.22437 of 2006 before this Court seeking for a direction to consider his representation. This Court by an order, dated 14.7.2006 directed his representation to be considered on merits and in accordance with law. Pursuant to the direction, the respondent State sent a letter dated 16.11.2006 stating that since already G.O.Ms.No.126, dated 16.6.2003 fixing inter-se seniority of the Assistant Commissioner is pending before the Tribunal, no further action can be taken since the matter is sub-judice. 7.Mr.R.Yashod Vardhan, learned Senior Counsel appearing for the petitioner submitted that the petitioners got appointed during the year 1994-1995 in the posts of the Assistant Commissioners. The petitioner in W.P.No.17440 of 2007 was shown as 17 in the seniority list. The petitioner in W.P.No.12577 of 2007 was shown as Sl.No.12 and the petitioner in W.P.Nos.16755 and 26399 of 2007 as Sl.No.15 in the list. The said order was issued by way of a notification by G.O.Ms.No.225, CTRE Department, dated 18.7.1994. The notification reads as follows: "Approved temporary list of eligible officers selected for temporary appointment as Assistant Commissioners of the Hindu Religious and Charitable Endowments Administration department in the Tamil Nadu Hindu Religious and Charitable Endowments Administration service by https://hcservices.ecourts.gov.in/hcservices/ recruitment by transfer for the year 1994-95 vide G.O.Ms.No.225 Commercial Taxes and Religious Endowments Department, Dated 18.7.1994." 8.Subsequent to this notification, the petitioners were appointed as Assistant Commissioners by an order, dated 30.6.1995 and they have been working in the said capacity. After their appointment, the Government issued G.O.Ms.No.77, CTRE Department, dated 28.2.1996 to fill up the posts of Assistant Commissioners by way of direct recruitment in respect of vacancies which had accrued from the year 1986 to 1993 and some of the private respondents were appointed as Assistant Commissioners. Those direct recruit Assistant Commissioners were subsequently promoted temporarily as the Deputy Commissioners. 9.Subsequently, in O.A.No.5737 of 2002 filed by S.Jayaraman (one of the petitioner herein), before the Tamil Nadu Administrative Tribunal, an interim direction was given on 11.11.2002. In that direction, it was stated that since the matter was pending before the Supreme Court in respect of inter-se seniority between the direct recruits and the persons appointed by transfer, the grievance of the petitioners will be considered and a promotion list of Deputy Commissioners will be thereafter prepared. It was only by G.O.Ms.No.126, TDC&RE Department, dated 16.6.2003, an inter-se seniority was prepared. It was stated that the State Government after considering the report of the HR&CE Commissioner and as per the order of the High Court, prepared the seniority list upto 1993-94 for the post of the Assistant Commissioner on the basis of 60:40 ratio. For the year 1994-1995 for the posts of Assistant Commissioners on the basis of 60:20:20 ratio, the seniority list was prepared. 10.The petitioners were only aggrieved about the seniority position granted to them fixing their date of appointment as 30.6.1995. However, the direct recruits, who were recruited only in the year 1995-1996, were placed well above the petitioners. When the petitioners have actually worked in the posts of the Assistant Commissioners earlier, there is no necessity to push their names below the names of direct recruits. Therefore, the list should be modified in accordance with law. 11.In reply to these averments, in the counter affidavit filed by respondents, it was averred in paragraphs 18 and 19 as follows: "18....it is submitted that the petitioner though joined as Assistant Commissioner on 30.6.1995 was placed below the respondents 3 to 10 herein while fixing the inter-se-seniority who have joined as Assistant Commissioners only on 4.3.1996 for the simple reason that the petitioner was promoted only on the basis of Temporary list prepared for the year 1994-95. 4.10.1996 was considered for the petitioner's seniority since the regular panel https://hcservices.ecourts.gov.in/hcservices/ of persons (for the year 1995-96) fit for promotion to the cadre of Assistant Commissioners in which the petitioner's name was included in Sl.No.10 approved by the G.O.366, Commercial Taxes and Religious Endowments Department, dated 4.10.1996 only. Hence the inter-se-seniority fixed vide G.O.Ms.No.126, Tamil Development, Culture and Religious Endowments Department, dated 16.6.2003 is very much correct. The direct recruit Assistant Commissioners have joined service in this Department on 4.3.96 and they have completed their probation on 4.3.98 and they were promoted to the cadre of Deputy Commissioner on 30.5.2002...." 19....it is submitted that as already explained in the previous paragraphs though the direct recruitment Assistant Commissioners appointed against the vacancies for the year from 1986-1993 and appointed in the year 1996. (Their seniority was fixed from the date on which they joined duty (i.e.)4.3.1996). They were not given seniority anterior to their appointment. While fixing the inter-se-seniority of Assistant Commissioners the actual date of joining duty was alone considered (i.e.)4.3.96 and the ratio was duly followed fixing direct recruits and promoted (Executive Officers and Superintendents) according to the ratio cycle fixed by the Government." 12.These averments were not contradicted by way of any reply filed by the petitioners. It must be noted that in filling up the posts of Assistant Commissioners, while quota has been prescribed at different times different ratios, there was no rotational rule of appointment. Therefore, if a person is appointed as a direct recruit to the said post by the TNPSC, his seniority will be fixed by the TNPSC. Any other person if appointed in respect of the same year by way of promotion or by transfer from other service, such persons will have to take their seniority only below the names of persons who are directly recruited by TNPSC. In the absence of any rotational rule to be followed, the seniority will have to be determined only in accordance with the existing rules. 13.The State Government by G.O.Ms.No.366, CTRE Department, dated 4.10.1996 prepared a seniority list for the year 1995-1996 in respect of the petitioners. The petitioners were directed to be included in the regular panel. Para 2 of the Government order reads as follows: "2.The Government have carefully examined the proposals of the Commissioner, Hindu Religious and Charitable Endowments Administration Department and the https://hcservices.ecourts.gov.in/hcservices/ recommendations of the Departmental Promotion Committee thereon in their letters third, fourth and fifth read above and they direct that the following 11 officers be included in the regular panel of officers fit for appointment by recruitment by transfer from among the Law Graduates with fifteen years service in the Hindu Religious and Charitable Endowments Administration Department and by recruitment by transfer from among the Superintendents and Executive Office Grade I to the post of Assistant Commissioners, Hindu Religious and Charitable Endowments Administration Department for the year 1995-96 in the order of preference specified below:" 14.Therefore, the petitioners cannot contend that their temporary services in holding the post of Assistant Commissioners on the basis of the temporary panel prepared earlier should be considered as a regular panel as if they were holding permanent posts. Such a contention is not available in the light of the petitioners' holding the post in a temporary capacity. It is not as if the petitioners have come to this court, seeking their temporary services in the higher posts should be considered as regular posts. They had never attacked the G.O.Ms.No.366, dated 4.10.1996, by which their names were included in a regular panel for the year 1995-1996. The said order came to be made only subsequent to the appointment of private respondents through direct recruitment. 15.However, the learned Senior Counsel placed reliance upon the judgment of the Supreme Court in Chennai Customs Appraising Officers Association Vs. Union of India and others reported in 2008 (7) SCC 278. The attention of this court was drawn to paragraphs 37 to 40 of the said judgment and it reads as follows: "37.No doubt, this Court in Gaya Baksh Yadav mandated that seniority had to be counted from the date of continuous officiation. But such a direction was issued keeping in view the fact situation obtaining at that stage. For the purpose of giving effect to continuous officiation doctrine, the entry to the service must be in accordance with law. If in particular years, having regard to the decision of the Board, the percentage of direct recruits were more than 50%, a fortiori the percentage of the promotees would come down. If they were recruited in excess of the vacancies which were required to be filled up in terms of the decision of the Board, the percentage of the promotees for the said year was required to be reduced. 38.Whereas all appointments in the direct recruitment quota being regular in nature, their seniority was to be counted from the date of their appointment, but so far as the promotees https://hcservices.ecourts.gov.in/hcservices/ who had been promoted on ad hoc basis are concerned, they could not, in terms of the Rules, rank senior to the direct recruits. 39.Strong reliance has been placed by Mr.Gupta on the decision of this Court in Direct Recruit Class II Engg. Offices' Assn. Therein, this Court had no occasion to consider a situation of this nature. We may, however, notice Clauses (A), (C) and (E) of the directions issued by this Court, which have some bearing on the controversy, which are in the following terms: (SCC p.745, para 47) "47.(A)Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the dat of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. * * * (C)When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly. * * * (E)Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date." As the ratio fixed for recruitment from different sources was not fixed, strict adherence to the principles enunciated therein was not possible to implement the same in a case of this nature. Similarly no quota rule having been fixed, the question of breaking down thereof shall not apply. 40.Therefore, promotions may have to be continued whether on an ad hoc basis or otherwise so as to enable the Department to function effectively and efficiently. The promotees may https://hcservices.ecourts.gov.in/hcservices/ continue in their service but when a question arises in regard to determination of seniority, the statutory rules must be given effect to." 16.It is not clear as to how the said judgment will have any effect over the present case on hand. A reading of the above judgment will show that there were two sources of recruitment. One by direct recruitment and the other by promotion. In case, promotees were appointed earlier to the direct recruits, then in terms of the Rule, even those who are promoted on adhoc basis cannot rank senior to direct recruits. But, the Supreme Court, after referring to another judgment of the Supreme Court held that since no ratio was fixed for recruitment from different sources, strict adherence to the principles enunciated therein was not possible. Since no quota rule was fixed, the question of it breaking down will not arise. Therefore, promotions may have to be continued whether on an adhoc basis or otherwise so as to enable the department to function effectively and efficiently. The promotees may continue in their service but when a question arises with regard to determination of seniority, the statutory rules will have to be given effect to. Therefore, in that view, the Supreme Court held that since there was no quota, there was no question of its breach. 17.On the contrary, the Supreme Court in State of Punjab and another Vs. Ashwani Kumar and others reported in 2008 (12) SCC 572 held that a person who is appointed on adhoc basis and who got his service subsequently regularised, cannot seek for counting of the adhoc service for the purpose of his seniority. The following passages found in paragraphs 5 and 6 may be usefully extracted below: "5.Undisputedly, the respondents at the time of their appointment were governed by the Punjab Civil Services (General and Common Conditions of Service) Rules, 1994. In Rule 8 of the said Rules it is provided that the seniority of the persons appointed on purely provisional basis or on ad hoc basis shall be determined as and when they are regularly appointed keeping in view the date of such regular appointment. Further, in the orders appointing the respondents on ad hoc basis, it was specifically stated that they will be governed by the aforementioned Rules. It was further stated in Para III of the appointment letter that the appointees' seniority will be determined only by merit in which he or she is placed by the Punjab Public Service Commission. Thus, it is clear that only regular service is to be counted towards seniority. 6.We do not feel it necessary to delve further into the merits of the case in view of the decision of this Court in State of Haryana https://hcservices.ecourts.gov.in/hcservices/ V. Haryana Veterinary & AHTS Assn. (2000) 8 SCC 4. We are satisfied that the ratio in that case applies to the case in hand. The resultant position that emerges is that the judgment/order passed by the High Court holding that ad hoc service is to be included in calculating the period of service for giving the higher scale of pay is unsustainable and has to be vacated. Accordingly, the appeal is allowed and the judgment/order of the High Court under challenge is set aside." 18.Subsequently, in P.P.C. Rawani (Dr.) and others Vs. Union of India and others reported in 2008 (15) SCC 332, once again the Supreme Court re-emphasized the same view. Paragraph 10 of the said judgment may be usefully extracted below: "10.If all the ad hoc doctors were to be regularised with effect from the date of their initial appointment, with seniority also from the date of initial appointment, there will be no difference between regular recruitment and regularisation of ad hoc appointments, thereby defeating the very purpose of systematic regular recruitment through UPSC. Ad hoc or stopgap appointees were not normally regularised and given seniority from the date of initial appointment. They were usually given regularisation and seniority only after a certain period of service, which used to vary from one year to ten years or even more." 19.It must be noted, the petitioners were informed that their earlier appointment was only temporary and the question of their holding permanent post does not arise. Rule 35(a) and (aa) of Tamil Nadu State and Subordinate Services Rules reads as follows: "35(a)The seniority of a person in a service, class or category or grade shall unless he has been reduced to a lower rank as a punishment be determined by the rank obtained by him in the list of approved candidates drawn up by the Tamil Nadu Public Service Commission or other Appointing Authority, as the case may be, subject to the rule of reservation where it applies. The date of commencement of his probation shall be the date on which he joins duty irrespective of his seniority. (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 https://hcservices.ecourts.gov.in/hcservices/ a punishment, be determined with reference to the date on which he is appointed to the services, class, category or grade;" 20.In the present case, the petitioners never made a grievance about the order under which they were appointed temporarily in the higher post of Assistant Commissioners. Their regular promotion itself was granted subsequent to the appointment of the private respondents. Therefore, in the guise of attacking the inter-se seniority list, they cannot claim retrospective regularisation in an earlier year so as to overtake the directly recruited candidates. The recruitment itself was done in the year 1995-1996 for direct recruits by TNPSC. The petitioners' recruitment as regular holders of the said post itself arose only in that year by G.O.Ms.No.366, dated 4.10.1996. Therefore, by existing rules, the petitioners will have to be necessarily below the names of the private respondents. The decision cited by the learned Senior counsel for the petitioners has no application to the facts of the present case. Hence the claim made by the petitioners cannot be countenanced by this Court. 21.In W.P.No.26399 of 2007, though the same petitioner has also filed W.P.No.16755 of 2007, a further contention raised is that his objections were not considered as directed by this court. He had also pointed out that some promotions were given to his juniors. In the present case, the petitioner never questioned any individual promotions. On the contrary, in the earlier writ petition, he had only challenged the correct fixation of inter-se seniority list, which has now been negatived by this court. 22.In the light of the above, no relief can be given to the petitioners. Accordingly, all the writ petitions will stand dismissed. No costs. Consequently, connected miscellaneous petition also stands dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1.The Secretary, The Government of Tamil Nadu, Tamil Development Culture & Religious Endowments Department, Fort St. George, Chennai-9. https://hcservices.ecourts.gov.in/hcservices/ 2.The Special Commissioner and Commissioner, Hindu Religious & Charitable Endowments Department, Nungambakkam High Road, Chennai-34. + One cc to Mr.M.Hidayathullakhan, Advocate, SR 67206 W.P.NOs.17440, 12577, 16755 and 26399 of 2007 VSV (CO) RH (18.12.09) https://hcservices.ecourts.gov.in/hcservices/